Don’t underestimate the neighbours

Although neighbours may raise concerns during the planning process, it often only comes to light later that the new use of land breaches restrictive covenants or gives rise to an actionable nuisance. In the case of Watson vs Croft Promo-Sport Limited, the defendants, Croft Promo-Sport Limited believed that as it’s use of the land was reasonable due to the grant of planning permission in 1963 and 1988. The case concerned a motor circuit at Dalton-on-Tees near Darlington in County Durham.

The home of the claimants was only 300 metres away from the circuit and due to the use of the circuit by the defendant being increased, they claimed that the excessive noise constituted an actionable nuisance. In the defence, the defendants claimed that despite the noise and inconvenience to the claimants, there could not be an actionable nuisance because its use as a circuit was reasonable having regard to the nature and character of the area arising from the grant of planning permission in 1963 and 1998. They also claimed that even if the nuisances had been actionable, the claimant should not be granted an injunction as the claimant had shown a willingness to accept the compensation in lieu of their loss of amenity.

The Croft Aerodrome had been used intermittently for car racing meetings and from 1962 the owner of the land applied for change of use to permit motor trials, motor and motorcycle races amongst other sporting events. From 1963 to 1979 the land was used for motor racing on not more than 20 racing days per year plus additional days of practice associated with the racing days. From 1987 to 1994 there was no motor racing on the land except for rally cross on 10 days a year and some engine testing on other days. By around 1994 the defendant had acquired an interest in the land and in 1996/1997 motor racing recommenced.

The planning authority has no jurisdiction to authorise a nuisance
In 1998, a planning inspector rejected the argument that the 1963 permission was subject to limitations which had been stipulated in a letter accompanying the application, but which had not been carried forward into the permission.

The inspector concluded that as the project would seriously diminish residential amenity, he granted planning permission for the continued use of the land for motor vehicle events, a sports centre and other immaterial uses, but stated that these would be subject to a certain condition agreed to in a Section 106 Agreement.

It was on this basis, that the defendant attempted to argue that due to a change in the nature and character of the locality, the use of the land was one of reasonable user. However, the judge at first instance considered that the threshold of reasonable user was for 40 days at between 78 and 95 dB(A) use per year. This threshold had been substantially exceeded and, as the claimants did not seek to prevent the core racing activities of the circuit, it was found that the defence of acquiescence had not been made out, particularly as any expenditure the defendant had incurred would have been incurred in order to enable the reasonable use described to take place.

The defendants had argued that it was wrong for a Civil Court to deal with the same issue as the planning enquiry and for it to reach an inconsistent decision in respect of the same. However, the judge rejected this as the planning authority has no jurisdiction to authorise a nuisance. It was therefore rejected that the grant of planning permission in itself would affect the private right of a neighbour to complain of a common law nuisance as it is well established that the grant of planning permission does not affect the private law rights of third parties. Moreover, whether there has been a change in the nature and character of the locality, is a question of fact and degree and is cannot be decided by the mere fact that planning permission has been granted for a certain use.

The remedy
Having established that an actionable nuisance existed, the Court of Appeal were then required to consider whether the correct remedy was one of an injunction for only damages to be awarded. 

We are reminded of the fact that only in exceptional circumstances should a land owner be deprived of his rights where a nuisance has been established. The fact that the wrongdoer is a public benefactor is not a sufficient reason for refusing an injunction. The Court of Appeal revisited the case of Jaggard vs Sawyer (1995) in which Sir Thomas Bingham stated: “The test is one of oppression, and the Court should not into application of a general balance of convenience test.”

We are also reminded of the relevant principles to be derived from the case of Shelfer vs City of London Electric Lighting Company Limited (1895) in which it was stated that the following factors should be considered:

• whether the injury to the claimant’s legal rights was small;
• whether the injury could be estimated in money;
• whether the injury could be adequately compensated by a small money payment;
• whether it would be oppressive to the defendant to grant an injunction;
• whether the claimant had shown that he only wanted money;
• whether the conduct of the claimant rendered it unjust to give him more than pecuniary relief;
• whether there were any other circumstances which justified the refusal of an injunction.

In the present case, the judge at first instance had decided that it was not appropriate for an injunction to be granted based mainly upon two main factors.

The first was that the grounds given by the judge at first instance were illogical and insufficient. He refers to the fact that there are only a number of places where the range of activities carried out at the circuit can take place. At first, he considered it legitimate to take into account the general balance of convenience in balancing the interesst of the parties to this private dispute and considers that the matter is weighed in favour of the defendant due to the public benefits.

The second factor was that the claimants had shown themselves prepared to accept monetary compensation up to a certain level of inconvenience. However, it was noted in the Court of Appeal that this does not mean that the claimant is ‘either willing or capable of being compensated with money for inconvenience suffered in excess of that level.’

The Court of Appeal emphasises that although public benefit might be relevant, its existence alone cannot necessarily negate the requirements of exceptional circumstances or oppression to prevent an injunction being granted. Thus, the conclusion of the Court of Appeal was that an injunction was granted in favour of the claimant restricting the defendant’s use of its circuit to the aforementioned 40 days per year.

It is therefore an essential lesson to land users on applying for planning permission to ensure that they consider thoroughly the rights of all neighbours and other third parties which may be affected by any change of use of land and that they do not make the mistake of thinking that once planning permission had been obtained, that no other objections can be raised.

Contact information:
Rachel Watkin, Partner, Property Litigation team Halliwells LLP.
Please phone: 0844 875 8000 or www.halliwells.com