Environment update

The Court of Appeal's judgment on 27 February 2012 in Coventry v Lawrence [2012] EWCA Civ 26 has had a significant impact on the law of private nuisance. It may also shift the way planning authorities determine permission for operational development in rural and residential areas, and increase the need for vigilance by conveyancing solicitors because it reinforces the importance of advising buyers on the possible impact of nearby developments on their future amenity.

At the heart of the judgment is a recast of the relationship between planning permission and nuisance previously clarified by Watson v Croft Promo-sport Ltd [2009] EWCA Civ 15 and Hunter v Canary Wharf Ltd [1997] UKHL 14. Hitherto it was understood that the grant of planning permission could not 'authorise' a nuisance so that the mere fact that a development is operating according to permission conditions did not preclude a person disturbed by noise, odour, dust, etc. from bringing a successful claim in private nuisance, provided the objective evidence was sufficient to demonstrate the impact on the claimant's amenity was unacceptable.

This is (or was) unsurprising. A planning authority cannot be expected to foresee the exact impact the development will have on residential amenity and set the precise conditions necessary. There are other permutations of the same point, including the fact that there are also many businesses operating in the UK that were granted planning permission some decades ago, when conditions were much less specific and onerous, that there is intensification of use not amounting (or spotted as) material such as to require further planning permission, incremental planning permissions with an intensifying effect, and even for operational development to halt for some time, then restart with a new owner applying for a certificate of lawful use, which does not allow a planning authority to consider the impact of the development on residential amenity. Many such permissions have also been granted without proper reference to EU laws in force since 1988 on environmental impact assessment.

However, these tenets have lain in some tension with another strand of case law that says that planning permissions granted for development over time can change the 'character of an area'. The origins of this view lie in Gillingham Borough Council v Medway (Chatham) Dock Co. Ltd [1993] QB 343, where Buckley J observed that a planning authority, through its plans and decisions, can alter an area such that what was once an actionable nuisance becomes acceptable. In that case, involving a big scheme for a commercial port development, the judge reasoned that a planning authority has been entrusted by parliament with the responsibility for balancing the needs of commercial operations against those of private individuals, through development plans and individual decisions, and it would stymie that responsibility if individuals could defeat the development through actions in private nuisance.

In Coventry, HHJ Seymour QC, sitting in the High Court, found that motorsport operations at a stadium and track in Suffolk were creating a noise nuisance that had an unacceptable impact on the amenity of Ms Lawrence and Mr Shields, the claimants. Racing of cars had taken place on the site since 1975, with motocross racing being granted permission in 2002. The operations had been subject to a number of temporary planning permissions before an indefinite grant was made. The operators had been at one time in breach of the conditions to the permit but abatement works were carried out and no breach of condition notices had been served since 2008.

The claimants moved to their house, which was approximately 560m from the stadium, in 2006. They began complaining of the noise nuisance soon after they moved in (which prompted some of the investigations by the council) and maintained throughout the proceedings that they were unaware of the operations at the stadium and track when they purchased their property.

Character of the locality

There were other issues that fell away on appeal, which revolved around the issue of the relationship between planning permission, character of the area and nuisance. Lord Justice Jackson, who gave the leading speech, summarised his view of the relevant authorities in four propositions:

'i) A planning authority by the grant of planning permission cannot authorise the commission of a nuisance.

ii) Nevertheless the grant of planning permission followed by the implementation of such permission may change the character of a locality.

iii) It is a question of fact in every case whether the grant of planning permission followed by steps to implement such permission do have the effect of changing the character of the locality.

iv) If the character of a locality is changed as a consequence of planning permission having been granted and implemented, then:

a) the question whether particular activities in that locality constitute a nuisance must be decided against the background of its changed character;

b) one consequence may be that otherwise offensive activities in that locality cease to constitute a nuisance.'

Thus, for a planning permission to 'change the character' of a locality, it must be implemented, and it is the effect of the implementation that should be considered. The trial judge, in considering the expert evidence on the noise emanating from the track and stadium, had found that it was a nuisance when compared to the otherwise quiet rural location. Jackson LJ said, echoing iv (a) of his propositions: 'In my view that conclusion is flawed. The noise of motorsports emanating from the track and the stadium are an established part of the character of the locality. They cannot be left out of account when considering whether the matters of which the claimants complain constitute a nuisance.'

The Court of Appeal's view is therefore that once the noise, odour, dust, etc. emanating from a development becomes 'an established part of the character of the locality' it cannot be a nuisance because it forms the background to which the alleged nuisance is compared against. The fact that there may be quiet periods where the nuisance is not occurring or variations in the level of impact depending on weather conditions, time of day, year, etc. seem to make no difference. Expert evidence as to the impact of the noise etc. complained of, including when set against standards such as BS4142, becomes irrelevant if the 'character' of the area has changed.

Character of the area has always been a factor to consider, but the effect of Coventry may be that nuisance cases that were once concerned with expert and lay evidence on the impact on individuals will instead become largely or wholly preoccupied with the planning history of the development and of the area in general. Would it purely depend on the length of time since permission has been granted? The number of similar developments in the area?

Would witnesses be called to give evidence as to whether a certain place is known for a certain type of industry? Presumably the lawfulness of the relevant planning permission processes would also have to be examined. These are issues that remain unanswered, and they will not be in the present case because the Court of Appeal declined to remit the question of the impact on the character of the area to the trial judge.

United force

While the strands that the Court of Appeal has brought together in its four propositions are not new to the law of nuisance, they have not so far been united in quite such a forceful way. Another important case on nuisance, Barr v Biffa Waste Services Ltd [2011] EWHC 1003, has just been heard by the Court of Appeal and judgment is awaited. In the High Court, Coulson J laid down a seemingly new principle that, in the absence of negligence or breach of its permit, the defendant waste operator should not be liable in nuisance for the inevitable consequences of its activities. The judge also found no reason why a 'best practicable means' defence should not function in common law claims as it does in statutory nuisance.

If the Court of Appeal upholds Coulson J's approach, barring a successful application by the claimants in either case to the Supreme Court, the effect of the two cases will make it very difficult to bring a successful claim in nuisance unless it can be demonstrated that the person responsible for the nuisance is also (1) negligent; (2) in breach of the conditions to its planning permission and/or environmental permit; and (3) not making a reasonable attempt to remedy the situation. This significantly increases the burden on claimants, who already have to produce very detailed, thorough and expensive lay and expert evidence to prove a nuisance.

These judgments will give considerable comfort to operators who abide by the rules set out by the permitting authorities and keep their businesses running properly, and indeed could in an ideal world content local residents on the basis that the limits imposed are appropriate and will always be policed effectively by local authorities and/or the Environment Agency. But are such expectations justified, considering the constraints on their resources and their discretion in taking action (the test being whether it is 'expedient' to do so)? And this is without the difficulties of historic and other types of permission mentioned earlier.

Buyers beware

But it is for the private individual who is contemplating purchasing a new home where the judgment really bites. The Court of Appeal expressed scepticism that the claimants were unaware of the noise emanating from the stadium and track when they purchased their properties.

Yet, for many people, the purchase of a property is an emotional decision rather than a carefully planned rationale. Particularly in the recent years, which have seen an extraordinary boom in the housing market, an offer is often made after one visit of a short duration, and, if one lives some distance away from the future property, it is difficult to manage more than that.

Few people would buy a property aware of a potential nuisance but comfort themselves with the notion that they can always bring a tort claim if it proves to be undesirable. However, this judgment means that they cannot even take that Adrienne Copithorne is an associate solicitor at Richard Buxton Environmental & Public Law (www.richardbuxton.co.uk). The firm acted for the claimants in Coventryrisk: generally people will not have the chance to remedy the sort of awful situation that Ms Lawrence and Mr Shields found themselves in.

The Victorians believed the tort of nuisance offered an important protection for an individual's property from the polluting activities of industry. Improvements in environmental legislation since that time controlling activities at source may have reduced the need for a claim in private nuisance. However, Coventry and Barr seem to have gone one step further and transferred almost all responsibility for policing nuisance to public authorities, and it remains to be seen whether they welcome it, and in any event whether such structure is in fact effective.