Key developments in the law of nuisance and the award of injunctions

• Real estate
• Real estate sector

28-03-2014

Coventry (t/a RDC Promotions) v Lawrence [2014] UKSC 13

The Supreme Court has made an important decision which addresses long established principles in the law of nuisance. This is a significant decision for both developers and operators of ‘nuisance’ sites.

The case concerned an individual, Mrs Lawrence, who purchased a bungalow in 2006 which dated back to the 1950s and was situated next to a stadium used for motorsports. The stadium had been used in this way since 1984 and the use had been granted planning permission. Mrs Lawrence sought an injunction to restrict the noise levels at the stadium. Mrs Lawrence was successful in the Supreme Court.

Prescriptive right to cause nuisance 

A nuisance is caused when a party interferes with another’s reasonable use and enjoyment of land. The court concluded that the noise emitted from the stadium constituted a nuisance.

However, the court determined that the right to commit a nuisance by noise can be acquired by prescription (at least 20 years’ enjoyment without interruption). This means that land owners can acquire rights to emit noise and probably odour, dust and vibrations, if it causes a nuisance for over 20 years. It is not sufficient to merely make noise for 20 years - the noise has to constitute a nuisance for 20 years to acquire a prescriptive right. In this case, the stadium could only evidence complaints dating back 16 years and so had not acquired a right by prescription.

It is clear that there are nuances to this concept and that evidencing the extent of an easement acquired in this way could be challenging. For example, it will be difficult to determine the extent of the easement, i.e. how much noise can be emitted pursuant to the right, if the noise level has fluctuated or was intermittent over the 20 year period.

Coming to the nuisance

The court made some useful general comments on the law of nuisance, confirming the well-known principle that it is no defence to a nuisance claim to say that a claimant “came to the nuisance”, for example, moving into a property near to a noisy stadium after the nuisance has begun. However, the court added that if a claimant builds on or changes the use of land so as to make the defendant’s previously innocent activity a nuisance, this may be a defence.

Relevance of the defendant’s activities when assessing locality

Whether or not an activity causes a nuisance will depend on whether the activity is considered reasonable bearing in mind the character of the locality in which the activity is carried out. An example cited by the Court of Appeal in the leading case in this area is that “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”.

In this case, the question arose as to whether the activities at the stadium should be included in an assessment of the character of the area. The court decided that the defendant’s use of the land could be taken into account, but only to the extent that it was not a nuisance. This appears to be a sensible conclusion as otherwise there would be circular argument whereby a defendant could rely on its own nuisance to justify its contention that it does not constitute a nuisance because of the character of the locality.

Planning permission is no defence

It is an established principle that planning permission authorising a particular use of land is not of itself a defence to a nuisance claim. However, the court determined that it may be of some evidential value to a defendant if planning permission specifically permits a certain noise level or permitted hours of noise, and the claimant is claiming that noise within that level or permitted hours amounts to a nuisance.

Damages v injunction

Perhaps most importantly, the Supreme Court’s decision heralds a fundamental change to the law concerning remedies for nuisance. The principal remedy in a nuisance claim is an injunction to restrain the nuisance, and prior to the decision in this case, a claimant would only be awarded damages in lieu of an injunction in the very limited circumstances established in the 1895 case of Shelfer v City of London Electric Lighting [1895] 1 Ch 287. The Shelfer test states that damages should be awarded in lieu of an injunction if: (i) the injury to the claimant’s legal rights is small; (ii) the injury is capable of being estimated in money; (iii) the injury can be adequately compensated by a small money payment; and (iv) it would be oppressive to the defendant to grant an injunction. The courts have tended to apply this test quite restrictively. In practice, it is a difficult test to satisfy and as such, damages in lieu of an injunction have only been awarded in exceptional circumstances.

In the Lawrence case, the Supreme Court suggested that Shelfer is out of date and that the test had been applied too slavishly and mechanically in the past. The Court said that the decision in Shelfer was made at a time when there was far less development and regulatory  control.  The court concluded that a more flexible approach should be taken in applying the Shelfer test and courts should more freely award damages in lieu of an injunction in the future.

The court set down some useful guidance that: (i) the usual position is that an injunction should be granted; (ii) the burden is on the defendant to show why an injunction is inappropriate; (iii) if the Shelfer test is satisfied then it is right to award damages in lieu; but (iv) if the Shelfer test is not satisfied, this does not mean that an injunction should necessarily not be granted. The court also said that if the activity causing the nuisance has public benefit or if it is in the public interest that it continues, these factors should be taken into account. It therefore appears that if the use is authorised by planning permission, this may persuade the courts to award damages rather than an injunction.

Finally, the court has also hinted about a change in approach in assessing the level of damages that are awarded in lieu of an injunction. Damages are usually assessed with reference to the diminution in value caused to the affected party by the nuisance continuing. However, it has been suggested that it may sometimes be appropriate to  consider the benefit derived by the defendant in not being injuncted in calculating damages. This is likely to be rarely applied but it could mean that the level of damages awarded may be more significant in the future if the defendant is benefiting considerably from his continued activities.

Conclusions

Although the Lawrence decision focuses on noise nuisance, it has much wider implications. In particular, it is likely to be of relevance in any case where the court has to decide whether to grant damages in lieu of an injunction. The decision also hints at possible future developments and further flexibility in the courts’ approach to remedies more generally.

Overall, this is a positive decision for developers who may have concerns about the court’s readiness to injunct development schemes which, for example, infringe rights to light. In the past, the courts have gone as far as to order the demolition of buildings, or parts of buildings, which infringe such rights. In the future, it is likely that courts will be more likely to order that damages should be awarded in lieu of an injunction, especially if the proposed scheme has planning permission.