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Planning permission 'cannot authorise' nuisance, Jackson LJ says

28 February 2012

The grant of planning permission “cannot authorise the commission of a nuisance”, Lord Justice Jackson has said.

The case involved a couple who bought a house in West Row, Suffolk, and objected to the noise produced by a nearby motor racing stadium and motorbike track. They sued the owners and operators for nuisance.

The High Court awarded Katherine Lawrence and Raymond Shields damages of £20,850 for nuisance and an injunction.

The defendants argued in their appeal that the judge had failed to take into account the planning permissions that had been granted.

Dismissing the nuisance claim at the Court of Appeal, Jackson LJ said “the noise of motor sports emanating from the track and the stadium are an established part of the character of the locality”.

He said they could not be “left out of account” when a court was considering whether the matters complained of constituted a nuisance.

Giving the leading judgment in Coventry (trading as RDC Promotions) v Lawrence and Shields [2012] EWCA Civ 26, Jackson LJ summarised the case law on nuisance and planning permission.

He said the grant of planning permission “may change the character of the locality” and it was a “question of fact in every case” whether the grant and implementation of planning permission had that effect.

If the character had changed, the question of whether activities constituted a nuisance “must be decided against the background of its changed character” and a consequence may be that “otherwise offensive activities in that locality cease to constitute a nuisance”.

Jackson LJ said it would be “most surprising” if Lawrence and Shields had bought the house unaware of the “various forms of motor sport” taking place in the stadium and on the track.

He went on: “The relevant planning permissions and certificate of lawful use were all available for inspection on the register maintained by the local planning authority.

“It is a matter of prudence, indeed basic common sense, to inspect that register before purchasing a property in a rural location.”

The court heard that planning permission for the stadium had been granted in 1975 and for the motorcross track in 2002. Following complaints from Lawrence and Shields about noise from the track in 2006 the council served abatement notices and work was carried out to reduce noise coming from track and stadium.

Recognising that the outcome of the litigation would be a “disaster for the claimants”, Jackson LJ allowed the appeal and dismissed the nuisance action.

Lord Justices Lewison and Mummery agreed.

Lucinda Brown, partner at Hewitsons in Cambridge, acted for the joint owners of the freehold of the track, who were the fourth, fifth and sixth defendants in the case.

Brown said Jackson LJ’s ruling would be referred to in future cases involving noise nuisance and have an impact on the way planning permissions were considered.

“The lord justice made it clear that the character of the locality established by planning permissions going back to 1975 could not be ignored by a judge when considering whether noise amounted to a nuisance.”

Brown said that, before granting planning permission, Forest Heath District Council had carried out a “careful weighing of private interests against public benefits” that the motorsport activities provided.

She went on: “This definitely had a bearing on the decision. It was not a slapdash approach.

“My clients are relieved that this two-year battle has finally been brought to a conclusion.”

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Local government