Supreme Court Issues Judgement on Private Nuisance

The Supreme Court has recently issued its judgement in the case of Coventry and others v Lawrence and another, a case concerning private nuisance. While the action relates to a claim for private nuisance in England, the law in Scotland on this issue is very similar and the case is likely to be persuasive in similar Scottish actions for private nuisance.

Background

The complaint in the case related to the noise coming from a speedway stadium which was constructed in 1975 under a planning permission. Stock car racing and motocross was also carried out at the stadium, covered by a Certificate of Lawfulness of Existing Use or Development and planning permission respectively.

All of these uses pre-date the appellants purchasing and moving into their home in the vicinity of the stadium in 2006. The appellants' nuisance complaint was in respect of the motocross events being held at the stadium.

Prescriptive right to commit what would otherwise be a nuisance

It was accepted by the Supreme Court that it is possible to obtain, by prescription, a right to commit what would otherwise be a nuisance by noise. However, the prescriptive period would only commence when the noise actually constituted a nuisance, and not when the noise was first emitted. The court recognised that this might create evidential difficulties for any party looking to establish that they had acquired the right.

In this case, the Supreme Court held that a period of 2 years with no motocross events, out of a total period of 20 years, was not sufficient to defeat the prescription. Ultimately, the party alleged to be causing the nuisance failed to show that they had acquired the right by prescription because they did not show that their activities constituted a nuisance for the necessary 20 year period.

It remains to be seen whether this would be accepted in Scotland.

"Coming to the nuisance"

An issue which can often arise in nuisance cases is whether or not the party alleging the nuisance acquired, or started to occupy, their property after the nuisance had started, often referred to as "coming to the nuisance".

It was stated by the Supreme Court that, where the party alleging nuisance uses their property for essentially the same purpose as that for which their predecessors had used the property since before the alleged nuisance started, the defence of "coming to the nuisance" must fail.

Although no definitive ruling was made on the point, it was suggested that it may be wrong to hold that a pre-existing activity gives rise to a nuisance where a party alleging nuisance has built on or changed the use of their land where the following criteria are satisfied:

Character of the locality

In assessing whether an activity constitutes a nuisance, the courts will usually carry out an assessment of the character of the locality. There are often questions as to the extent to which the activity complained of should itself be taken into account when making this assessment.

It was held that the activity can be taken to constitute part of the character of the locality, but only to the extent that the activities do not constitute a nuisance. Also, any other activity in the locality can also be taken into account, to the extent that it does not give rise to an actionable nuisance or is otherwise unlawful.

The Supreme Court acknowledged the circularity in ignoring the activity to the extent that it constitutes a nuisance when assessing the character of the locality for the ultimate purpose of determining whether or not the activity amounts to a nuisance. However, this approach was said to be better than the alternatives.

Nuisance and planning permission

There is a significant volume of case law on the extent to which a planning permission authorising an activity allegedly constituting a nuisance can provide a defence to a nuisance action. The Supreme Court has said that the fact that the activity has the benefit of a planning permission is normally of no assistance in a nuisance claim.

However, the Supreme Court has suggested that the terms of a planning permission may be of relevance in some cases, for example when the terms specify times when a noisy activity is acceptable, or noise levels at which an activity should be permitted.

Comment

The Supreme Court suggested that there should be an iterative process to assessing the character of a locality when the issue of circularity arises, but did not offer any guidance on how to carry out that iterative process. They also offered no guidance on when the terms of a planning permission will be relevant in a nuisance action.

It is also interesting to note that Lord Carnwath did not appear to support the iterative process to assessing the character of the locality. Instead, he seems to support the establishment of acceptable limits as a matter of fact and degree. Whilst accepting that a planning permission is not generally relevant in a nuisance action, Lord Carnwath accepted that a planning permission can, in exceptional cases, result in a fundamental change in the pattern of uses in an area which cannot be ignored when assessing its character.

In light of these points, this case is not likely to be the last significant case on private nuisance. However, it does offer some useful guidance on the approach the courts are likely to take in such cases, in the short term at least.