Coventry (t/a RDC Promotions) & Anor v Lawrence & Ors (Rev 1)

This judgment is in eight parts, namely,

This is an appeal by the second and third defendants against a finding that noise generated by motor sports which they organise constitutes a private nuisance. One of the central issues in this appeal concerns the implications of the fact that the various motor sports are being carried on with the benefit of planning permissions and also a certificate of lawful use.

I should begin by explaining the various forms of motor sport which are in issue. “Speedway racing” means racing speedway motorcycles over several laps of a circuit. “Stock car racing” involves racing between various classes of typical road cars, which have been modified to make them safer to race. “Banger Racing” is a form of stock car racing, but it involves using older and less road worthy vehicles. “Motocross” means racing motocross motorcycles on an undulating track.

In this judgment I shall refer to the Town and Country Planning Act 1990 as “the 1990 Act”. Section 171B of the 1990 Act provides:

“171B Time limits.

(1)

Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.

(2)

Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.

(3)

In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.”

Section 191 of the 1990 Act provides:

“191 Certificate of lawfulness of existing use or development.

(1)

If any person wishes to ascertain whether -

(a)

any existing use of buildings or other land is lawful;

(b)

any operations which have been carried out in, on, over or under land are lawful; or

(c)

any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,

he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.

(2)

For the purposes of this Act uses and operations are lawful at any time if -

(a)

no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and

(b)

they do not constitute a contravention of any of the requirements of any enforcement notice then in force.

…

(4)

If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.

(5)

A certificate under this section shall—

(a)

specify the land to which it relates;

(b)

describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class);

(c)

give the reasons for determining the use, operations or other matter to be lawful; and

(d)

specify the date of the application for the certificate.

(6)

The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.”

It can be seen that a certificate of lawful use issued under section 191 of the 1990 Act has the same practical effect as a grant of planning permission for that use of the property.

The Town and Country Planning (General Development Procedure) Order 1995 at the relevant time required each local planning authority to maintain a planning register, which is open to public inspection. The planning register contains details of planning permissions granted and also details of certificates of lawful use which have been issued.

I shall refer to the Environmental Protection Act 1990 as “the EPA”. Section 79(1) of the EPA defines statutory nuisances. These include:

“(g)

noise emitted from premises so as to be prejudicial to heath or a nuisance”.

Section 80 of the EPA requires the local authority to serve an abatement notice on a person responsible for a statutory nuisance if it is satisfied that a statutory nuisance exists, or is likely to occur or recur, and that person can appeal to a magistrates’ court. Section 82 allows a private complainant, not a local authority, to bring proceedings for statutory nuisance in a magistrates’ court against a person who is causing a statutory nuisance. Section 82 (6) requires that before bringing such proceedings the complainant must first serve a notice on the intended defendant. That notice gives the defendant an opportunity to abate the nuisance.

Section 80 (7) and section 82 (9) of the EPA state that in proceedings for statutory nuisance it shall be a defence “to prove that the best practicable means were used to prevent, or to counteract the effects of, the nuisance”.

After these introductory remarks, I must now turn to the facts.

Mr. Terence Waters is a farmer and landowner in the Mildenhall area. In 1975 he obtained planning permission to construct a sports complex on part of his land, namely a field by the junction between Hayland Drove and Cooks Drove just outside the village of West Row. Mr. Waters constructed a stadium with associated facilities, surrounded by banks and trees. I shall refer to this as “the Stadium”.

Once the Stadium was constructed Mr. Waters entered into an arrangement with a company called Fen Tigers Ltd, under which that company used the Stadium for speedway racing. A speedway racing team called “the Fen Tigers” was formed. In 1979 the Fen Tigers won the British National League Championship for speedway racing. It appears from press articles and other contemporaneous documents that this was a cause for considerable local celebration.

As time went on, additional activities were introduced at the Stadium. Stock car racing and banger racing began in 1984. Greyhound racing began in 1992.

The local councils appear to have been supportive of these activities. In 1979 both the Mildenhall Parish Council and Forest Heath District Council presented the Fen Tigers with certificates congratulating them on their success. On 25^th July 1997 the Forest Heath District Council issued a Certificate of Lawful Use, stating that stock car racing and banger racing on not more than 20 days per year had become an established use of the Stadium; it was therefore lawful within section 191 of the 1990 Act.

In 1992 Mr. Terence Waters entered into an arrangement with Mr. Stuart Nunn, a former Motocross British Champion. Under this arrangement a Motocross Track (“the Track”) would be constructed on land to the rear of the Stadium. That land is and was at all material times owned jointly by Mr. Terence Waters, his wife Margaret and a local farmer, Anthony Morley.

On 4^th March 1992 Mr. Waters and Mr. Nunn applied to Forest Heath District Council for planning permission to use the land to the rear of the Stadium as a motocross track. That application was supported by the Eastern Council for Sport and Recreation for three reasons, namely:

“a)

shortage of such facilities in the region. The applicants’ site at Chippenham has had a regional significance to motocross participants.

b)

the applicants have experience of operating such a track and offers close participation with the Local Planning Authority to ensure minimum effect on the neighbourhood.

c)

sensible landscaping and shared facilities with the speedway stadium will minimise effects.”

In their report on the planning application the council’s officers commented as follows:

“OFFICER COMMENT:

The main issues to be considered are whether the proposed additional facility raises the level of use of this corner of Cooks Drove/Hayland Drove to a point where an unacceptable loss of amenity will be caused to nearby residents and whether the change of use of the site will cause undue loss of rural amenity in terms of appearance, pollution loss of wildlife habitat and archaeological damage and thereby be detrimental to the character of the area.

Regarding the first issue, it is accepted that the proposed development will create an increase in noise and disturbance in this part of West Row. The concern is whether the noise and disturbance caused by the motocross operation, incremental to the existing use of the stadium, will be such as to make the development unacceptable. Details of investigations by the Environmental Health Section into the noise implication will be presented to the Committee.

However there is an existing facility at the stadium which has operated for many years. The motocross proposal has attracted letters of positive support with regard to the value of the service it offers to young people and there seems to be logic in locating the facility close to an existing motor sport stadium where some facilities such as car parking could be shared.”

The officers recommended that planning permission be granted for one year only, in order that the impact of motocross racing could be evaluated objectively. The council members accepted that recommendation. On 28^th May 1992 the Forest Heath District Council granted planning permission for change of use from agricultural land to “off-road motorcycle Track (motocross)” limited to one year only.

The Track was duly constructed with associated facilities. Temporary planning permission was renewed on a number of occasions over the following years. Finally, on 3^rd July 2002, permanent planning permission was granted for the use of the land as a motocross Track. The council granted this planning permission with knowledge of the permitted activities which were already place at the Stadium. The conditions to which the planning permission was subject include the following:

“4.

The events and practice activities held on the site shall be supervised at all times, either by Moto-Land UK Ltd or by their nominated representative, in accordance with the Auto Cycle Union of code of practice.

5.

Unless otherwise agreed in writing with the Local Planning Authority, the track shall be used strictly in accordance with the details accompanying the application, namely:

(i)

From April to October inclusive, the track will be used every other Sunday only. Six of the Sundays during this period will be for events. The hours of operation for events during this period will be 10.00 am to 6 pm. On other Sundays when the track is used during this period, the hours of use shall be from 10.00 am to 4.00 pm.

(ii)

From November to March inclusive, the track will be used every Sunday from 10.00 am to 4 pm. This use will include 5 event days to be competed by 4 pm.

(iii)

Every Thursday for practice days the hours from 10am to 4pm.

(iv)

On practice days on Thursday and Sundays, during the summer period (i.e. April to October inclusive), no more than 30 riders shall use the track at any one time.

(v)

Tuesdays as training/practice/nursery days with a maximum of 10 riders at any one time on the site and to operate from 10.00 am to 4.00 pm.

(vi)

Three Saturdays only during the year the track shall be used to hold an event to comprise a British schoolboy/schoolgirl championship round. The date for this event shall be previously agreed in writing with the Local Planning Authority and not less than one months prior notice shall be given to the Local Planning Authority that such an event is to be held.

6.

On summer Sundays, i.e. during the period April - October inclusive, when the site is being used no motor bikes shall operate on the track between the hours of 12.30 pm and 1.30 pm.

7.

Other than to call emergency services or to announce the commencements of a race, no tannoy system shall be used on the site.

8.

All vehicles using the track shall comply with current Auto Cycle Union noise regulations.

9.

Random testing of individual motorcycles shall be undertaken on all days that the track is in use and the test results shall be kept by the track operator and produced for examination by the Local Planning Authority if required.

10.

The level of noise emitted from the site shall not exceed Laeq85dB over a time period of 1 hour at the boundary of the site. A system to assess compliance with this condition shall be established and maintained by the track operator and the results made available to the Local Planning Authority on request. The measurement method and location shall be when and where so directed by the Local Planning Authority.”

It can be seen from the officers’ reports over the years between 1992 and 2002 that careful consideration was given to the differing interests of those who lived in the locality. On the one hand there was a need to protect residents close to the Track from undue disturbance. On the other hand there was a recognition that the facility for motocross racing performed a valuable social function.

All the different interest groups sent letters to the council setting out their respective concerns and opinions. There were letters from nearby residents protesting about the noise. There were letters from those who supported the project, emphasising the benefits of motor sports to young people whose skills were mechanical rather than academic or who needed to “blow off” their energies away from public roads. It can be seen that in the planning permission finally granted the council struck a balance between the conflicting interests which were in play.

Moto-Land UK Ltd (“Moto-Land”), which is referred to in condition four of the planning permission, was a company owned by Mr. Stuart Nunn and his wife. In March 2003 Mr. and Mrs. Nunn sold their shares in Moto-Land to another motocross enthusiast, Mr. Clifford Bastick. Mr. Bastick and his family live at Pear Tree Farm, Cooks Drove, West Row. That is the closest residential property to the Stadium and the Track. Mr. Bastick and his four sons had been involved in motocross racing since 1998. On the 10^th September 2003 Mr. Waters, Mrs. Waters and Mr. Morley granted to Moto-Land a ten year lease of the land on which the Track was located.

In August 2005 Mr. Terence Waters sold the Stadium to his son, James, for £825,000. In September 2005 Mr. James Waters leased the Stadium to a man called Carl Harris. Mr. Harris made an arrangement with a motor sports enthusiast, Mr. David Coventry, under which Mr. Coventry organised events at the Stadium.

In January 2006 Ms. Katherine Lawrence and Mr. Raymond Shields (who are now the claimants) bought a house called Fenland, which is situated in Cooks Drove, West Row. This house stands five hundred and sixty metres from the Stadium and eight hundred and sixty four metres from the Track.

Ms. Lawrence and Mr. Shields assert that they bought Fenland unaware of the various forms of motor sports which took place on the Stadium and the Track. If this assertion is correct, it is most surprising. 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.

In April 2006 Ms. Lawrence and Mr. Shields made complaints to Forest Heath District Council about the noise of motor sports. The council investigated the complaints. On two occasions the council served notices asserting breaches of the planning permission conditions relating to the Track. In December 2007 the council served abatement notices under the EPA on Mr. David Coventry and Moto-Land. Another abatement notice was served on Fen Tigers Ltd, a company now in liquidation, but that is not material to the present litigation. In January 2008 Mr. Harris surrendered his lease of the Stadium owing to financial difficulties. On 4^th April 2008 Mr. James Waters sold the Stadium to Mr. David Coventry and his brother Ronald for £1.4 million. The Coventry brothers trade under the name “RDC Promotions”. They have operated the Stadium since April 2008 under that name.

During 2008 there was much heated correspondence concerning the abatement notices which had been served in December 2007. Suffice it to say that in due course works were carried out to reduce the noise escaping from the Track and the Stadium. Those abatement works were completed in January 2009.

The Council was satisfied with the abatement works carried out. Accordingly it did not pursue proceedings in the magistrates’ court against either David Coventry or Moto-Land under Part 3 of the EPA. One further Breach of Condition Notice was served in August 2009, but I understand that that did not relate to noise levels.

Although the abatement works had reduced the noise generated by motor sports, they had not, of course, eliminated that noise. Ms. Lawrence and Mr. Shields still suffered disturbance. They continued to make complaints, but to no avail. Ultimately, negotiations having failed, they commenced the present proceedings.

On 19^th October 2009 Ms. Lawrence and Mr. Shields issued proceedings in the Queen’s Bench Division for private nuisance against six defendants as follows:

The basis of the claimants’ claim was that the noise generated by motor sports at the Stadium and the Track constituted a nuisance. Each of the defendants, whether as owner of the offending premises or as operator of the activities there, was liable in tort to the claimants. Accordingly the claimants claimed against each defendant an injunction to restrain continuance of the nuisance and also damages.

The first defendant, being a company in liquidation, played no part in the action. The other five defendants vigorously defended the action.

The action came on for trial in London before His Honour Judge Seymour QC sitting as a judge of the High Court, between 26th January and 11^th February 2011. Both the claimants and the defendants adduced extensive factual and expert evidence concerning the level of noise generated by the various motor sports. The principal issue between the parties was whether that noise constituted a nuisance.

The claimants also asserted that the defendants were responsible for numerous acts of harassment against them. These acts included damage to property, intimidation and finally, in June 2010, setting fire to Fenland and rendering it uninhabitable. The claimants claimed aggravated damages for nuisance by reason of these events. The claimants also claimed exemplary damages on the basis that the defendants were deliberately carrying on their activities in a manner which would cause nuisance, for the purpose of financial gain.

The defendants denied these additional claims and denied that they were responsible for the various acts of harassment. They asserted that others were responsible, in particular some Travellers who lived in that area.

One hard fought issue was whether the claimants were aware of the motor sports carried on when they purchased Fenland. This was obviously relevant to the claim for an injunction. The claimants asserted that they had no such knowledge. The defendants maintained and put in cross-examination that this assertion was simply incredible.

Extensive background evidence was put before the court concerning the history of the Stadium and the Track, the planning applications, the abatement proceedings and so forth. For the purposes of this appeal, it is not necessary to traverse all of that evidence.

The judge delivered his reserved judgment on 4^th March 2011. He set out the facts and the evidence in considerable detail. He held that the noise generated by the motor sports at the Stadium and the Track constituted a nuisance to the occupiers of Fenland, for which the second and third defendants (Mr. David Coventry and Moto-Land) were responsible. He held that the sixth defendant (Mr. James Waters) was only responsible for the nuisance between the 28^th January and 4^th April 2008. That was the period between Mr. Harris’s surrender of the lease and the Coventry brothers’ purchase of the Stadium. He held that the sixth defendant had no responsibility for the period when he was lessor of the Stadium to Mr. Harris. Likewise the fourth and fifth defendants had no responsibility for nuisance emanating from the Track, because they were lessors of the property rather than operators of the motocross activities. The judge rejected the claims for aggravated and exemplary damages. Although he accepted that there were acts of damage to the claimants’ property, which might possibly have included arson, he did not accept that these had been carried out by the defendants or their agents.

On the important question whether the claimants did or did not know about the nearby motor sports when they purchased Fenland, unfortunately the judge made no finding of fact.

The judge awarded £20,850 damages to the claimants, apportioned between the defendants as follows. The second defendant was to pay £10,325. The third defendant was to pay £10,425. The sixth defendant was to pay £100.

The judge also held that the claimants were entitled to injunctive relief. There was a separate hearing to determine the terms of the injunction. At the end of that hearing the judge made the following order:

“It is ordered that:

1.

The Second and Third Defendants and anyone served with a copy of this Order shall be restrained from causing or permitting noise to be generated from activities at Mildenhall Stadium and the Motocross track either singly or in combination, as the case may be, which exceeds the noise level, when measured at the south-eastern boundary of Fenland (as indicated on the attached plan between points A and B) and determined under “free-field” measurement conditions,

i.

between 08:00 and 20:00 hours, 45 dB LAeq (15 minutes); or,

ii.

between 20:01 and 07:59 hours, of 37 dB LAeq (15 minutes).

save with the express prior written consent of the Claimants or as set out herein below;

The judge further ordered that the injunction should not take effect until 1^st January 2012. (That date has now been extended until the determination of this appeal).

The second and third defendants maintain that an injunction in the terms ordered by the judge will result in the closure of their business, causing massive financial loss to themselves and detriment to the local community. The second and third defendants are also aggrieved by the judge’s finding that their activities constitute a nuisance. Accordingly they appeal to the Court of Appeal.

By appellants’ notices dated 24th March 2011 the second and third defendants appealed against the judgment of His Honour Judge Seymour on three grounds. Those grounds may be summarised as follows:

Upon considering the papers in this matter Carnwath LJ granted permission to appeal on the first and third grounds, and ordered that the application for permission to appeal on the second ground be heard together with the appeals on the first and third grounds.

The claimants resist the second and third defendants’ appeals. They also cross appeal on the ground that the judge wrongly dismissed their entire claim against the fourth defendant and wrongly dismissed most of their claim against the sixth defendant. The claimants contend that the fourth defendant and sixth defendant were not mere or passive landlords. They were actively involved in promoting the activities on the Track and the Stadium. Accordingly the claimants contend that the fourth and sixth defendants should be subject to the injunction granted by the judge. Also the fourth and sixth defendants should be jointly liable with the second and third defendants for the damages awarded and also for the claimants’ costs (a not insubstantial sum).

The appeal and cross-appeal came on for hearing on 13^th December and the hearing lasted for three days. All grounds of appeal and cross-appeal have been argued. Also the second defendant and the third defendant renewed their application for permission to appeal on the second ground.

There was a further hearing on 16^th February 2012 after the parties had received the court’s judgment in draft. On that occasion Mr Peter Harrison QC for the claimants argued that the court’s legal analysis in Parts 5 and 6 of the judgment was a novel and unexpected one, being contrary to the approach of the Court of Appeal in Watson v Croft Promosport Ltd [2009] EWCA Civ 15, [2009] 3 All ER 249. In the circumstances, even though neither party had contended for remission to the trial judge during the course of the appeal, the proper course was to remit the nuisance issue for determination by the trial judge. Mr Robert McCracken QC for the appellants opposed that application.

It seems to me that the crucial issue in this appeal is the second and third defendants’ first ground of appeal. If that ground succeeds, all the other grounds of appeal and cross-appeal fall away. On the other hand, if the first ground of appeal fails, then all the other issues must be addressed.

Accordingly, in the next two parts of this judgment I shall focus exclusively on the first ground of appeal.

The first ground of appeal involves a consideration of the planning permissions which were granted and implemented, as well as the legal consequences of those events. Before grappling with these issues, however, I must first review the law.

The first point to note is that the planning system exists to protect the public interest, not to protect private interests: see PPG1: General Policy and Principles, paragraph 17 (first version, 1988), and The Planning System: General Principles, published by the Office of the Deputy Prime Minister in 2005, paragraph 29 (and still current). Nevertheless both grants and refusals of planning permission impact upon private interests, sometimes to a substantial extent. Grants of planning permission may result in the character of an area being changed, with consequential effects upon private rights.

In Allen v Gulf Oil Refining Ltd [1980] QB 156 the plaintiff complained of nuisance caused by an oil refinery, which had been built with statutory authority. The Court of Appeal noted that a grant of planning permission may change the character of a neighbourhood in such a way that particular activities do not constitute a nuisance. In the House of Lords Lord Wilberforce stated:

“It is now well settled that where Parliament by express direction or by necessary implication has authorised the construction and use of an undertaking or works, that carries with it an authority to do what is authorised with immunity from any action based on nuisance.”

See [1981] AC 1001 at 1011.

In Gillingham Borough Council v Medway (Chatham) Dock Co. Ltd [1993] QB 343 the defendant obtained planning permission to develop a commercial port on part of the site of the former Chatham Dockyard. The plaintiff council, having granted planning permission for that development, subsequently contended that heavy goods vehicles travelling to or from the port at night constituted a public nuisance. Buckley J dismissed the claim. Buckley J noted that planning permission differed from statutory authority, which had been the subject matter of Allen. In a helpful passage on pages 359 to 361 he analysed the interplay between planning permission and the law of nuisance. At page 359F-H Buckley J said:

“Parliament has set up a statutory framework and delegated the task of balancing the interests of the community against those of individuals and of holding the scales between individuals, to the local planning authority. There is the right to object to any proposed grant, provision for appeals and inquiries, and ultimately the minister decides. There is the added safeguard of judicial review. If a planning authority grants permission for a particular construction or use in its area it is almost certain that some local inhabitants will be prejudiced in the quiet enjoyment of their properties. Can they defeat the scheme simply by bringing an action in nuisance? If not, why not? It has been said, no doubt correctly, that planning permission is not a licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance. However, a planning authority can, through its development plans and decisions, alter the character of a neighbourhood. That may have the effect of rendering innocent activities which prior to the change would have been an actionable nuisance."

Buckley J then applied those principles to the case before him. The grant of planning permission and the construction of the port had changed the character of the neighbourhood. It would be unrealistic to operate the port without causing the disturbances of which the local residents complained.

Two features of the Gillingham case should be noted. First, the port and its access roads were constructed close to a pre-existing residential area. Secondly, as can be seen from the second paragraph on page 355, the noise, vibration, dust and fumes caused serious disturbance to local residents. Despite all these circumstances Buckley J dismissed the claim for public nuisance.

Harsh though that outcome may seem, I respectfully agree both with the decision and with the reasoning on which it is based. The planning authority had made a decision in the public interest and the consequences had to be accepted.

In Wheeler v JJ Saunders Ltd [1996] Ch 19 smells which emanated from the defendant’s pig farm and reached the plaintiffs’ houses were held to constitute a private nuisance. One of the issues concerned the effect of planning permission which the defendants had obtained for change of use. The Court of Appeal held that this did not constitute a defence to the plaintiffs’ claim in nuisance. The court distinguished Gillingham on the basis that the grant of planning permission for “a change of use of a very small piece of land” had not changed the character of the neighbourhood.

The court’s analysis of the issues in Wheeler is readily comprehensible. I see no inconsistency between the decisions in Gillingham and Wheeler.

In Hunter v Canary Wharf Ltd [1997] AC 655 residents in the London Docklands area complained that a large building constructed by the defendants interfered with the reception of television broadcasts. The House of Lords held that the plaintiffs could not maintain a claim in nuisance. The defendants had constructed their building in accordance with the planning permission which had been granted. The defendants could not be held liable in private nuisance for the consequences of their building being present. At page 710 Lord Hoffmann noted that since 1947 planning legislation has drastically curtailed the freedom of an owner to build as he chooses on his land. He then added:

“In a case such as this, where the development is likely to have an impact upon many people over a large area, the planning system is, I think, a far more appropriate form of control, from the point of view of both the developer and the public, than enlarging the right to bring actions for nuisance at common law. It enables the issues to be debated before an expert forum at a planning inquiry and gives the developer the advantage of certainty as to what he is entitled to build.”

Lord Hoffmann then added the important qualification that the grant of planning permission does not constitute a defence to anything that is a nuisance under the existing law. Lord Cooke of Thorndon, who dissented in the result, observed that planning measures denoted “a standard of what is acceptable in the community”. He accepted that compliance with planning controls was not in itself a defence to a nuisance action, as illustrated by the decision in Wheeler. He added that Wheeler was “an instance of an injudicious grant of planning consent, procured apparently by the supply of inaccurate and incomplete information”.

In Hirose Electrical UK Ltd v Peak Ingredients Ltd [2011] EWCA Civ 987, [2011] Env. L. R. 34 the claimant company manufactured mobile phone parts and the defendant company manufactured ingredients for curry in adjoining premises. The claimant brought an action for nuisance by smell. Both the trial judge and the Court of Appeal dismissed the claim. The Court of Appeal noted that both parties were conducting their businesses on a light industrial estate with the benefit of planning permission. At paragraph 40 of his judgment, with which the other members of the court agreed, Mummery LJ said this:

“First, the deputy judge was entitled to attach significance to the location of the premises and the character of the Crownhill Industrial Estate. The light industrial character of that Estate covered Peak’s food additive manufacturing, which was permitted on both planning grounds and by the user covenant in its lease. The activities in Unit 20 were carried on without objection or intervention on environmental or health and safety grounds by the relevant statutory authorities. While those matters are obviously not conclusive against the existence of a private nuisance, they are relevant indicators of the levels of discomfort and inconvenience caused by the smell.”

That case is a helpful illustration of the manner in which the grant and implementation of planning permission may affect the character of an area. The character of the area played a critical part in the final decision in that case.

Reference has also been made to the decision of Coulson J in Derrick Barr v Biffa Waste Services Ltd [2011] EWHC 1003 (TCC), [2011] 4 All ER 1065. However, this case is going on appeal. Out of fairness to the parties in that appeal, we have decided not to review the reasoning in Barr. I shall therefore leave that first instance decision out of account without indicating either criticism or approbation.

In the light of the authorities cited above, I would summarise the law which is relevant to the first ground of appeal in four propositions:

The Court of Appeal’s decision in Watson v Croft Promosport Ltd [2009] EWCA Civ 15, [2009] 3 All ER 349 is not inconsistent with those principles. It involves an application of them to particular facts. The judge found on the evidence that the grant and implementation of planning permissions had not changed the character of the locality. The Court of Appeal held that there was no basis for disturbing the decision of the trial judge that the character of the locality was unchanged: see paragraphs 36 to 39 of the Chancellor’s judgment.

Having identified the relevant principles, I must now apply them in addressing the first ground of appeal, namely the planning permission issue.

The judge set out the planning history of the Stadium and the Track at paragraphs 47 to 59 of his judgment. He then referred to the Court of Appeal’s decision in Wheeler. At paragraph 66 the judge said this:

“66.

The limitations on days and hours of use of the Track, and of the Stadium for stock car racing, as defined in the Certificate, and the limitations on hours of use of the Stadium for speedway racing, are unusual features in a planning permission, as are the personal natures of the Speedway Permission and the Track Permission. These features mean that, outside the permitted hours of use of the Stadium and the Track, the area in which they and Fenland are situated is an agricultural area close to a military airfield operations from which affect the residents of the locality in the rather limited way which I have found. During the permitted hours on the permitted days to the extent that there is use of the Stadium or the Track noise is generated by the activities permitted. That will continue so long as those having the benefit of the personal Speedway Permission and the personal Track Permission wish to continue to avail themselves of those permissions or so long as any permitted variation in favour of some other person continues to be utilised. Consequently, it cannot be said that the existence of the Speedway Permission, the Certificate or the Track Permission have altered the character of the locality of the Stadium, the Track and Fenland permanently. All they have really done is to permit, at identified times on identified days, or on a set number of days per year, activities which otherwise are not permitted.”

I do not agree with the first part of that paragraph. The limitations on days and hours of use contained in the planning permissions and the certificate of lawful use are not unusual features. Furthermore, the fact that the permission is personal is irrelevant. The key question is the effect of implementing the decision. The identity of the person who implements it is irrelevant. As to the second half of that paragraph, in my view the judge came to the wrong conclusion. In January 2006, when the claimants purchased Fenland, the position was this. For the last thirteen years various forms of motor sports had been taking place at the Stadium and the Track on numerous occasions throughout the year. These noisy activities, regarded by some as recreation and by others as an unwelcome disturbance, were an established feature, indeed a dominant feature, of the locality.

The judge went on to review the numbers of race meetings at the Track and the Stadium, the complaints about noise, the views of residents and related matters. He noted that the noise level was variable, depending upon the direction of the wind, the form of motor sport being undertaken and so forth. The judge also reviewed the evidence given by the acoustic expert witnesses, namely Mr. Sharps for the defendants and Mr. Stigwood for the claimants.

At paragraph 158 the judge identified the following question as an important issue in the case:

“whether it was appropriate, in assessing whether the noise generated by the activities at the Stadium and at the Track was capable of causing a reasonable person annoyance to a degree amounting to a nuisance, to take into account as one of the noise characteristics of the locality the noise generated by those very activities.”

The judge did not immediately state his answer to that question. It is clear, however, from the later passages, as Mr. Peter Harrison for the claimants concedes, that the judge’s answer to that question is no. In my view, that is the wrong answer. Throughout the period when the claimants were living at Fenland the noise generated from time to time by motor sports was “one of the noise characteristics of the locality”.

At paragraph 203 the judge stated his conclusion as follows:

“What was clear from Mr. Sharps’s measurements, and was borne out by the recordings of measurements annexed to the second report of Mr. Stigwood, was that noise from the activities at the Stadium and at the Track, after the completion of the works undertaken in 2008-2009, was intermittently much louder, typically by 10 dB, than the ambient noise level leaving out of account those activities. It is, in my judgment, those dramatic increases in loudness which really constitute the nuisance in the present case, in other words the contrast between the loud levels and the noise levels prevailing when there was nothing going on at the Stadium or at the Track.”

In my view that conclusion is flawed. The noise of motor sports 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.

I quite accept that if the second and third defendants had ignored the breach of condition notices and had conducted their business at noise levels above those permitted by the planning permissions, the claimants might have been able to make out a case in nuisance. It appears, however, that this was not the case. Abatement works were carried out in 2008 to the satisfaction of Forest Heath District Council. No breach of condition notices have been served since then, apart from one which did not relate to noise level.

In my view the judge’s finding of private nuisance was based upon an error of law and cannot stand. Accordingly I would allow the second and third defendants’ appeal on the first ground which they raise, namely the consequence of obtaining and implementing the various planning permissions.

Mr Harrison argued at the hearing on 16^th February that it does not necessarily follow from the conclusion in the preceding paragraph that the claim for nuisance fails. The claimants’ case is that, even judged against the changed character of the locality, the noise emanating from the Track and the Stadium still constituted a nuisance. The difficulty with this argument is that the judge has made no findings of fact to support such a conclusion. On the contrary, on a careful reading the judge’s judgment as a whole, it seems to me that the judge’s decision concerning the character of the locality was critical to his finding of nuisance. I therefore do not see how Mr Harrison’s argument can succeed.

Mr Harrison submits that the case should be remitted to the trial judge, so that he can determine (i) whether the activities on the Stadium and the Track constituted breaches of the conditions of planning permission and the limitations in the certificate of lawful use and, if so, (ii) whether those breaches were such as to constitute a nuisance. For brevity I will refer to the conditions of the planning permission and the limitations on the certificate of lawful use as “planning conditions”.

There are several difficulties with this application. The first difficulty is that the claimants’ case as pleaded and presented below was based upon the premise that their home was situated in a quiet rural locality; the planning permission and the certificate of lawful use followed by implementation had not changed the character of that locality. The claimants’ expert evidence proceeded on that premise. Although there were some references to breaches of the planning conditions, the claimants did not put forward a coherent alternative case to the effect that, even if the character of the locality had changed as the defendants contended, nevertheless the noise of the motor sports still constituted a nuisance. Paragraphs 44 to 50 of Ms Lawrence’s witness statement, which loomed large in Mr Harrison’s submissions on 16^th February, received scant attention at trial. There was little or no cross-examination of Ms Lawrence on those paragraphs. Likewise there was little or no cross-examination of Mr Bastick upon his evidence that, apart from three minor incidents, there had been compliance with the planning conditions. The specific breaches of planning conditions alleged in paragraphs 44 to 50 of Ms Lawrence’s witness statement were not put in cross-examination to either Mr Bastick or Mr Coventry. The judge made no findings of fact about those matters. Furthermore no evidence was called to show that the noise emitted from the Track exceeded the level permitted by condition 10 of the planning permission.

The second difficulty with Mr Harrison’s application is that he has sought to put forward a new case, after the court had sent out its judgment in draft and immediately before hand down. There is no contention in a respondent’s notice to the effect that, if the appellants succeed on their first ground of appeal, then instead of dismissing the claimants’ claim, the Court of Appeal should remit the issue of nuisance to the judge for re-determination. Likewise Mr Harrison made no submissions to that effect either in his skeleton argument or orally during the hearing. During the hearing on 16^th February Mr Harrison candidly accepted that he ought to have taken this point both in a respondent’s notice and in his submissions during the appeal, but he omitted to do so. We welcome that candour and we do not wish to be critical of counsel. The fact remains, however, that submissions made to the Court of Appeal by parties after receipt of a draft judgment are meant to be confined to matters such as costs, clerical errors in the judgment or the drafting of an appropriate order. It is rare for counsel even to attend a hand down and that event certainly should not become an occasion to deploy new arguments on the issues under appeal: see R (Mohammed) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2010] EWCA Civ 65, [2011] QB 218. Out of abundance of caution, we agreed to hear Mr Harrison’s application on 16^th February. However, as the argument proceeded and new documents were passed up to us which had not been before the court during the hearing of the appeal (the experts’ joint statement, additional pages of witness statement, closing written submissions at trial) I for one became increasingly uncomfortable about the process upon which we were embarked.

Mr Harrison did tactfully suggest from time to time that this court’s legal analysis in the preceding parts of the judgment was not foreseeable, because it was contrary to authority, in particular Watson. I do not accept this argument for two reasons. First, in essence what this court has done in relation to the planning permission issue is to accept the arguments which Mr McCracken has been advancing both at first instance and on appeal. In litigation, save in exceptional cases, it is always foreseeable that the arguments of opposing counsel might prevail. Secondly, as set out earlier, I do not accept that the legal analysis of this court is contrary to authority.

A third difficulty with Mr Harrison’s application is this. As Mr McCracken pointed out, what the claimants are seeking is not a re-trial but a new trial upon a different basis from the first trial. This litigation has already been on foot for two and a half years. The stress caused to all involved must be huge. So also are the costs. It is a principle of public policy that there must be finality in litigation with reasonable promptitude. Cases must not be allowed to drag on indefinitely. No-one listening to this case can fail to feel sympathy for the predicament in which the claimants are now placed. Nevertheless, for all the reasons set out above, it would not be right to remit this case to trial judge so that he can re-determine the issue of nuisance.

Let me now draw the threads together. In my view, the claimants’ application for remission must be refused. The consequence of this court’s decision on the first ground of appeal is that the alleged nuisance has not been established and the claimants’ claim must be dismissed.

For the reasons set out in parts 5, 6 and 7 above, if my Lords agree, the appeals of the second and third defendants will be allowed on the first ground. The second ground of appeal is no longer relevant. Therefore the renewed application for permission to appeal on that ground must be refused. The third ground of appeal, which relates to prescription, likewise does not arise. I should add, however, that I agree with Lewison LJ’s observations about the prescription issue.

Since the activities at the Track and the Stadium do not constitute a nuisance, it follows that the claimants’ cross-appeal against the fourth and sixth defendants must be dismissed.

The outcome of this litigation will be a disaster for the claimants, a fact which I regret. On the other hand the claimants’ predicament is a consequence of their decision to purchase a house in an area where motor sports were an established activity. This fact was or should have been apparent to the purchasers and the purchasers’ professional advisors. (Contrary to the protestations of counsel, this is not a finding of dishonesty. We are not deciding whether (a) the existence of motor sports nearby was known to the claimants when they purchased or (b) the existence of motor sports nearby was not known to the claimants but ought to have been known.) This appeal is allowed and the claimants’ action is dismissed.

I agree with Lord Justice Jackson that the appeal should be allowed on the ground that the activities in question did not amount to a nuisance in the changed locality, and that there should be no remission to the trial judge. The remaining issues do not therefore arise. But for the fact that part of the judge’s judgment has been reported (see [2011] 4 All ER 1191 (Note)) I would not wish to say anything about the remaining issues. In that part of the judgment that is reported the judge says (§ 223):

“I am satisfied, on principle, that the law does not recognise an easement of noise, or an easement only exercisable between certain times of the day or on a limited number of occasions in the year.”

I leave aside for the moment the question whether there can be what the judge called “an easement of noise”. However, there is in my judgment no doubt that the law will recognise an easement exercisable between certain times of day. Thus in Collins v Slade (1874) 23 WR 199 the court recognised a right of way exercisable in daylight hours. In Batchelor v Marlow [2001] 1 EGLR 119 (reversed on other grounds [2003] 1 WLR 764) the court recognised an easement to park during normal working hours on Mondays to Fridays. The judge’s statement of principle on this point cannot be justified. So far as limited occasions in the year are concerned, I have already referred to the recognition of an easement of parking during working hours on limited days of the week. In addition it is well settled that a customary right may be acquired to do something on land at certain times in the year (e.g. to dance round a maypole or to play cricket on Sundays); and I can see no reason in principle why an easement exercisable during certain times of the year is incapable of creation.

I turn then to the question of noise. What is in effect being claimed is the right to transmit sound waves over the servient tenement. To the extent that easements are classified into positive easements and negative easements the right claimed is a positive easement. In this respect it is unlike the right to receive photons of light passing across the servient tenement (which can be an easement) or the right to receive television and radio waves passing across the servient tenement (which cannot: Hunter v Canary Wharf Ltd [1997] AC 655). In Lyttleton Times Co Ltd v Warners Ltd [1907] AC 476 an action for nuisance caused by noise and vibrations failed because use of the property for the trade causing the noise and vibrations was contemplated by both parties to the grant in question. In Pwllbach Colliery Co Ltd v Woodman [1915] AC 634, 646 Lord Parker treated this as an example of a case in which:

“The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used.”

He seems, therefore, to have found no conceptual difficulty in an easement to transmit sound waves across the servient tenement. In Re the State Electricity Commission of Victoria & Joshua’s Contract [1939] VR 121 Martin J, on a vendor and purchaser summons, ordered the inclusion in a conveyance of land to be used as an electricity sub-station of an express easement of transmitting across the servient tenement such noise as might arise from the proper use and operation of the sub-station. So the answer to the question: could a conveyancer draft it (see Dennis v Ministry of Defence [2003] EWHC 793 (QB) [2003] Env LR 34 § 52) is “Yes”.

It is true that, as the judge said, there is no reported case in which an easement to transmit sound waves has been acquired by prescription. But there are many cases in which such a claim has been made. In that context in Bliss v Hall (1838) 4 Bing NC 183, Ball v Ray (1873) LR 8 Ch App 467 and Sturges v Bridgman (1879) 11 Ch D 852 the courts have recognised that in principle such a right can be acquired by prescription. The principal problem in such cases has been to establish what level of noise has been created over the whole of the period of prescription, so as to entitle the putative dominant owner to continue to transmit sound waves (i.e. to make a noise) at the same level that exists at the end of the prescriptive period. Whether this is a real problem of definition must, in my judgment, wait for another day and another case in which it really matters. What I cannot agree with is the judge’s uncompromising statement that the law will not recognise an easement to transmit sound waves. In this area of the law, as in so many, “never” is a word that it is better not to use.

I agree with both judgments.

It is unnecessary and unwise to say any more about the prescription claim than is said by Lewison LJ in his judgment correcting what was said below about an easement exercisable between certain times of day. “An easement of noise” might make an interesting moot, but we are not a Moot Court. Exceptional cases apart, it is not a good idea for this court to litter the law with unnecessary legal opinions, which might be more embarrassing than enlightening for a future court faced with having to decide the point: see Cooke v. New River Co (1888) 38 Ch D 56 at 71 per Bowen LJ.