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UK: Supreme Court decision on nuisance claims

    • Energy and infrastructure - Water


    A recent Supreme Court ruling in relation to nuisance has potentially wide ranging implications for the way in which Courts are likely to deal with nuisance claims in the future. Whilst the case itself revolves around issues of noise nuisance specifically, it is likely to have implications for the way in which the courts will deal with a wide variety of nuisance claims in the future, including nuisance caused by odours. 

    The case is Coventry and another v Lawrence and another (also known as the Fen Tigers Case). In this case, Ms Lawrence claimed that the noise generated by motor sports at a stadium close to where she moved to in 2006 constituted a nuisance. The High Court granted an injunction and damages against some of the defendants. The Court of Appeal overturned the High Court decision and relied on the fact that the grant of planning permission had changed the nature of the locality so that the noise was not a nuisance. 

    The Supreme Court has now reversed that decision. In reaching its decision, the court considered over a century’s worth of case law on nuisance in detail. The case deals with a number of interesting issues:

    Prescriptive rights to cause a nuisance

    The Supreme Court confirmed that it is possible for a defendant to contend that he has established a prescriptive right to commit what would otherwise be a nuisance and that the nature of easements that can arise by prescription is not a closed list. Accordingly, if it can be demonstrated that actions amounting to a nuisance have been ongoing for the requisite 20 year period, a prescriptive right arises. Whilst the indication was provided specifically in relation to noise, there is no apparent reason that it shouldn’t apply to other forms of nuisance, such as odours. In the Fen Tigers case, the defendant was unable to establish that the level of noise caused was sufficient throughout the requisite period so as to amount to a nuisance and therefore their claim to have a prescriptive right failed. The general principle is established though.

    Coming to the nuisance

    The Supreme Court affirmed the general principle that it is no defence in nuisance to contend that the claimant came to the nuisance. Interestingly though it was stated that it may be a defence, at least in some circumstances, for a defendant to contend that it is only because the claimant has changed the use of land, or built on it, that the defendant’s pre-existing activity is alleged to have now become a nuisance.

    Injunctions v Damages

    The Supreme Court felt that in recent times the courts have generally been too ready to grant injunctions without considering whether to award damages instead. In particular, the Supreme Court felt that the well known four-stage test in Shelfer v City of London Electric Company unduly fetters the courts and in future, the courts should exercise a greater degree of discretion. One of the significant factors that it was suggested courts should give greater weight to in future is the public interest.

    The case also addresses other interesting issues, such as the extent to which planning permission may be relevant on whether the activity amounts to a nuisance and the extent to which the activity actually complained of can be considered when assessing the character of the locality. Water and sewerage companies may find this judgment of assistance when dealing with claims relating to flies or odour from sewage works.