Coventry and others v Lawrence and another

Private nuisance by noise depends on whether the interference with the reasonable enjoyment of land is objectively unacceptable in its locality. A defendant’s activities may inform the locality’s character only so far as they are lawful and do not themselves constitute the nuisance alleged.

Coming to the nuisance is no defence where the claimant continues the land’s established use. A prescriptive right to make otherwise actionable noise can arise, but the defendant must prove at least 20 years’ sufficiently continuous nuisance as of right.

Planning permission does not ordinarily authorise nuisance or extinguish private rights. Its terms may nevertheless have evidential value and may influence the choice between an injunction and damages. That remedial discretion is flexible: the traditional four-factor guidance must not be applied mechanically.

The appellants owned and occupied a bungalow near a stadium and motocross track operated by the respondents. They claimed that noise from motor racing constituted private nuisance and sought damages and an injunction. The High Court found nuisance and imposed noise limits: [2011] EWHC 360 (QB), reported in part at [2011] 4 All ER 1314.

The Court of Appeal reversed that decision, holding that the long-established, planning-authorised activities formed part of the locality’s character: [2012] EWCA Civ 26, reported at [2012] 1 WLR 2127.

The Supreme Court considered prescription, coming to the nuisance, the treatment of the defendant’s activities when characterising the locality, the relevance of planning permission, and the discretion to award damages instead of an injunction.

1. Disposition. The Supreme Court unanimously allowed the appeal and restored the High Court’s order, including its injunction and liberty to apply. Lord Neuberger gave the leading judgment. Lord Sumption agreed with his reasons; Lord Mance, Lord Clarke and Lord Carnwath agreed with the disposition and substantially with the governing principles.
2. Locality and reasonable user. Private nuisance by noise is assessed objectively, by reference to reasonable enjoyment of land and the established pattern of uses in the locality. A defendant may rely on its own activities when characterising that locality only to the extent that they do not constitute an actionable nuisance. Otherwise the defendant would rely on its own wrong to justify its continuation. The Court of Appeal therefore erred by treating the offending noise itself as an established characteristic which defeated the claim.
3. Prescription. A right to transmit sound waves over neighbouring land, although unusual, may constitute an easement and may be acquired by prescription. The defendant must prove at least 20 years’ enjoyment as of right of the nuisance itself, rather than merely 20 years of conducting the activity or making noise. Intermittency is not necessarily fatal. Here, the evidence did not establish 20 years of actionable nuisance affecting the appellants’ land.
4. Coming to the nuisance. A claimant does not lose the right to sue merely by acquiring or occupying land after the nuisance began. The appellants continued the bungalow’s long-established residential use. Lord Neuberger left open a different situation in which the defendant’s previously lawful activity becomes objectionable only because the claimant later builds on, or changes the use of, the claimant’s land.
5. Planning permission. Planning permission removes a public-law restriction but does not ordinarily authorise nuisance or extinguish private rights without compensation. The reasoning in Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343, so far as it suggested otherwise, could not stand. The terms of permission may nevertheless provide evidence about acceptable hours or noise levels. The permissions and certificate in this case had insufficient weight to undermine the trial judge’s factual findings.
6. Remedy. An injunction remains the prima facie remedy, but section 50 of the Senior Courts Act 1981 confers a flexible discretion to substitute damages. The four considerations associated with Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 are guidance, not a mechanical or exhaustive test. Public interest, effects on third parties and the planning history may be relevant. Because damages in lieu had not been sought at trial, the Court did not decide that issue, but permitted the respondents to raise it under the restored liberty to apply.

1. United Kingdom Supreme Court: The appellants’ appeal was allowed unanimously. The Court of Appeal’s order was set aside and the High Court’s order restored: [2014] UKSC 13.
2. Court of Appeal: The respondents’ appeal was allowed. The court reversed the finding of nuisance because it regarded the motor-racing activities as part of the locality’s established character: [2012] EWCA Civ 26; [2012] 1 WLR 2127.
3. High Court: The judge found that noise from the stadium and track constituted nuisance, awarded damages for past nuisance and granted an injunction imposing noise limits: [2011] EWHC 360 (QB); [2011] 4 All ER 1314.