Law / Study by subject / Torts

NZLJ Student Companions: Torts – Coventry v Lawrence

This Student Companion by Barry Allan appeared in the July 2014 edition of the New Zealand Law Journal [2014] NZLJ 217.

STUDENT COMPANION: TORTS

Coventry v Lawrence [2014] UKSC 13, [2014] 2 WLR 433

 

This is one of the few nuisance cases to be determined by a top level appellate court in England. It is concerned with three matters of importance: the general principles of nuisance, the relevance of planning permission (or resource consent) and remedies. There is a clear majority, led by Lord Neuberger, on the first two matters. Although Lord Carnwath agreed with the conclusions reached, he gave a lengthy speech of his own. When it came to the appropriate remedy for a nuisance, the Court fragmented.

In 1975, the owner of rural land was given planning permission to operate a racing track and a stadium for motoring events. As might be expected, when the track was used, it produced sustained loud noise: there were at least 20 events each year but the track was not in continuous use. Only one house was within a kilometre of the track: the Lawrences moved into it in 2006, and almost immediately complained about the noise and eventually sought an injunction to restrain the alleged nuisance.

Under English law, 20 years uninterrupted enjoyment of something which would otherwise be a nuisance will create a prescriptive easement and thus give the right to continue the activity. The Supreme Court accepted that there can be an easement allowing the making of noise, and that such an easement can be acquired by prescription. This is so even if the noise can be heard in a large number of different properties, is not continuous and does not always reach the threshold of being a nuisance. A period of two years where the track was not used did not prevent a prescriptive right, against the background of more than 20 years of consistent use. One important point made is that prescription depends upon acquiescence, so there can be no relevant acquiescence where the noise is below the level of being a nuisance. This point was fatal to the prescriptive easement: the evidence did not show that there had been a nuisance for 20 years. Mere proof that the activity had been carried on for that period was not enough.

The Lawrences moved into the house after 30 years of operation of the race track, but it has long been established that there is no defence based on the complainant coming to the nuisance. This principle does depend on the complainant using the property for essentially the same purpose as it has been used since before the nuisance started. Lord Neuberger did accept (at [53]) that there may not be the same right to complain if the complainant builds on, or changes the use of, the land after the nuisance has started. The question might then be whether the activity would have been a nuisance even if there had been no alteration in use by the complainant: if not, then it “may well be wrong to hold that a defendant’s pre-existing activity gives rise to a nuisance”.

The question of whether an activity is a nuisance is highly dependent upon the character of the locality, although Lord Neuberger suggested at [60] that this might be better expressed as “the established pattern of uses” in the locality. Lord Carnwath developed this idea, saying (at [185]) that the presence of a major football stadium would mean significant disturbance on match days. On his (minority) view, this is simply a price to be paid for a socially important activity so someone buying a house next door could not complain, because that disturbance would be part of the established pattern of use.

The court needs to take the defendant’s activity on the land (the race track operation) into account as part of this assessment, but in doing so the court must ignore the activity to the extent is a nuisance to the complainant. The point served by taking the activity into account is to recognise that so long as it is not a nuisance, it will be a reasonable and lawful use by the defendant of the land. On the other hand, if the activity is a nuisance, then taking it into account in determining the character of the locality would allow the defendant to rely on its own wrong to justify a continuation of the wrong. This is awkward, given that the point of the assessment is to decide whether, having regard to the locality, the activity is a nuisance. Lord Neuberger acknowledged (at [71]) the circularity of this approach, but said that in many cases, it will be “fairly clear” whether the activity is a nuisance or not and that this approach is better than totally ignoring the defendant’s activity or just taking it into account regardless of whether a nuisance is being created. He did however clarify this by saying that if the defendant cannot conduct his activity without it being a nuisance, then it is not to be taken into account at all in determining the locality’s character. Nuisances created by others in the neighbourhood are also to be ignored.

Although the Supreme Court rejected the trial Judge’s view that the grant of planning permission was irrelevant, Lord Neuberger was firm in saying that the fact that the defendant had specific authorisation to conduct the activity complained of would not prevent that activity being a nuisance. This is even so where the permission authorises the activity to be conducted in such a way that it constitutes a nuisance. At best, planning permissions might lead to a change in a locality’s character, so that its residents would then need to tolerate a greater level of interference, but planning permission is no licence to commit a nuisance. It simply means that a bar imposed for the purposes of resource management has been removed. It is wrong in principle to give a planning authority the ability to deprive a land-owner of a private law right to sue in nuisance, and so planning permission will not assist a defendant. On the other hand, Lord Carnwath saw the planning process as much more relevant. Where there has been a significant project with a “considered policy decision” made by the planning authority that has led to a fundamental change in the pattern of use, that change must be taken into account in assessing a locality’s character. More generally, where a planning authority has set up a detailed framework of conditions to establish a fair balance (for example, to govern the acceptable limits of noise), then that can function as a useful starting point or benchmark. Evidence of compliance with permission is evidence of reasonableness, although not necessarily determinative.

Finally, the Court took the opportunity to resolve tensions which had arisen over the appropriate remedy to be given for a nuisance. An injunction restraining the continuation of the nuisance is the primary remedy (with damages to compensate for past nuisance), but courts do have the discretionary power to award damages instead of an injunction. These will compensate for the reduction in the value of the claimant’s property in light of the nuisance. Lord Neuberger (at [128]) suggested that the damages might well include “the loss of a claimant’s ability to enforce her rights, which may often be assessed by reference to the benefit to the defendant of not suffering an injunction”.

The reason for preferring an injunction was stated in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 at 322-323: someone committing wrongs is not entitled to continue them “by purchasing his neighbour’s rights, by assessing damages in that behalf, leaving his neighbour with the nuisance”. Denying an injunction would mean a wrong being allowed to continue simply because the wrongdoer is able and willing to pay for the injury. Damages might nonetheless be appropriate where the injury is small, measurable in and compensatable by money and the grant of an injunction would be oppressive to the defendant.

In the intervening century, there were strong expressions of support for that approach but equally strong support for a more open-minded discretionary approach. Lord Neuberger favoured the latter approach, saying the power to award damages is a “classic exercise of discretion” which requires a fact-sensitive response which ought not be fettered. But he went on to say the courts can lay down rules as to what factors will be relevant, in order to make the exercise of the discretion predictable. On his Lordship’s view, an injunction should normally be granted, with the legal burden on the defendant to show why it should not. An injunction will even be “necessary” where the injury cannot properly be compensated by money, or the defendant has acted in a high-handed manner or tried to steal a march on the plaintiff or evade the Court’s jurisdiction.

At the same time, the court needs to ensure that a nuisance action is not used as a means of extorting money. He held that the Shelfer approach still has a role to play, so long as it is not applied mechanically and does not become a fetter on the discretion. Generally speaking, if the tests it lays down are satisfied and there are no additional factors, damages will be the appropriate remedy. If there is any element of public interest (such as the loss of employment for the defendant’s employees, benefit to the public of the activity or if neighbours other than the plaintiff are adversely affected), this will always be a relevant factor to take into account. Because planning permission normally weighs public benefits, the fact of permission to carry on an activity which is a nuisance is also a relevant factor in favour of refusing an injunction.

While Lord Sumption agreed that the planning permission was of limited relevance to the question of whether the activity was a nuisance, he saw it of great importance when it comes to remedies. The effect of an injunction will often go well beyond the defendant: here, it would prevent anyone coming and racing on the track. The planning permission process evaluates the wider social and economic benefits in a way a court deciding whether to grant an injunction cannot. Since an injunction would be an effective reversal of planning permission. A court should allow permitted activities to continue, but compensate the plaintiff for the loss of amenity and the diminished value of the property. His Lordship went further, noting (at [159]) that damages are the ordinary remedy and an injunction is only to be given where damages are not adequate. Basically, he saw no reason to put land or nuisance in any privileged position, and so damages would on his view become the normal remedy for nuisance. He dismissed the Shelfer principle (at [160]) as being “unduly moralistic” and out of date. In its stead, he endorsed a statement by Millett LJ in a breach of contract case that “an award of damages reflects normal commercial expectations and ensures a more efficient allocation of scarce economic resources”. Lord Clarke expressed complete agreement with this approach: Lord Mance complete disagreement. Lord Neuberger saw this as an interesting possibility with “much merit”, but did not see the matter to have been sufficiently argued to reach a concluded view.  Lord Carnwath was equally agnostic.

 

The full July 2014 edition of the New Zealand Law Journal is available on the LexisNexis research database.