Nuisance - Motor racing - Defendants using land for motor racing

Lawrence and another v Fen Tigers Ltd and others: CA (Civ Div) (Lord Justices Mummery, Jackson, Lewison): 27 February 2012

In 1975, the fourth defendant (TW) obtained planning permission to construct a sports complex on part of his land.

The development included a stadium and associated facilities (the stadium). TW entered into an arrangement with the first defendant (D1) under which D1 used the stadium for speedway racing. Additional forms of motor racing commenced at the stadium. The local authorities were supportive of those activities and, in 1997, a certificate of lawful use was granted which stated that stockcar racing and banger racing had become an established use of the stadium and was therefore lawful within section 191 of the Town and Country Planning Act 1990.

In 1992, TW entered into an arrangement to construct a motocross track on land at the rear of the stadium owned by TW and the fifth defendant, D5 (the track). The local planning authority granted planning permission for change of use from agricultural land to offroad motorcycle track limited to one year. The track and associated facilities were constructed. In 2002, permanent planning permission was granted for the track. The conditions on the permission included restrictions on days and times of use and on noise levels. The conditions also required that all events and practice activities be supervised by the third defendant (Moto). In 2003, TW and D5 granted Moto a 10-year lease of the land on which the track was located.

In 2005, TW sold the stadium to the sixth defendant, JW. Events at the stadium were organised by the second defendant (DC). In 2006, the claimants bought a house situated 560 metres from the stadium and 864 metres from the track. They alleged that they had been unaware of the various forms of motor sport that took place at the stadium and the track. They complained to the authority about the noise of motor sports. The authority investigated and, on two occasions, served notices asserting a breach of the planning permission conditions relating to the track. In 2007, the authority served abatement notices under the Environmental Protection Act 1990 on DC and Moto. A further abatement notice was served on D1, which had, by the time of the instant proceedings, gone into liquidation. In 2008, JW sold the stadium to DC and his brother (trading as RDC). Works were carried out to reduce the noise from the track and stadium. The authority was satisfied with those works.

The claimants continued to make complaints and eventually commenced proceedings against the defendants for private nuisance. The judge held that the noise generated by the motor sports at the stadium and the track constituted a nuisance to the claimants for which DC and Moto were responsible. He held that JW was only responsible for the nuisance for a limited period between a previous surrender of a lease of the stadium and its sale to RDC. JW was held not liable for the period when he was lessor of the stadium. TW and D5 had had no responsibility for nuisance emanating from the track because they had been lessors of the property rather than operators of the motocross activities.

The claimants were awarded damages which were apportioned between DC, Moto and JW. Further, the judge held that the claimants were entitled to injunctive relief restricting the noise emissions from the stadium and track. DC and Moto appealed, maintaining that an injunction in the terms ordered would result in the closure of their businesses. They further contradicted the finding that their activities constituted a nuisance. The claimants cross-appealed on the ground that the judge had wrongly dismissed their entire claim against TW and wrongly dismissed most of their claim against JW.

The issue for the determination of the court was whether, in assessing whether the noise from the stadium and the track constituted a nuisance, the judge had failed properly to take into account the planning permissions which had been granted, in particular failing to take into account the fact that the implementation of those permissions had changed the character of the locality.

The court ruled: Under established authorities, a planning authority, by the grant of planning permission, could not authorise the commission of a nuisance. Nevertheless, the grant of planning permission followed by the implementation of such permission might change the character of a locality. It was a question of fact in every case whether the grant of planning permission, followed by steps to implement such permission, did not have the effect of changing the character of the locality. If the character of the locality was changed as a consequence of planning permission having been granted and implemented, then the question whether particular activities in that locality constituted a nuisance had to be decided against the background of its changed character. One consequence might be that otherwise offensive activities in that locality ceased to constitute a nuisance (see [65], [87], [92] of the judgment).

The judge's finding of private nuisance had been based on an error of law and could not stand. The noise generated from time to time by motor sports was 'one of the noise characteristics of the locality'. The noise of motor sports from the track and stadium were an established part of the character of the locality. They could not be left out of account when considering whether the matters of which the claimants complained constituted a nuisance. Had DC and Moto ignored the breach of condition notices and 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. However, on the evidence that had not been the case (see [72], [74], [75], [76], [87], [92] of the judgment).

DC and Moto's appeal would be allowed. The claimants' cross-appeal would be dismissed (see [76], [85] of the judgment). Per curiam: 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 [(see [223] of the judgment)]: '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] 4 All ER 78) 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 (for example, 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 re
ceive television and radio waves passing across the servient tenement (which cannot: Hunter v Canary Wharf Ltd [1997] 2 All ER 426). In Lyttleton Times Co Ltd v Warners Ltd [1904/07] All ER Rep 200 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 [1914-15] All ER Rep 124, 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] VLR 121, Martin J, on a vendor and purchaser summons, ordered the inclusion in a conveyance of land to be used as an electricity substation of an express easement of transmitting across the servient tenement such noise as might arise from the proper use and operation of the substation.

So the answer to the question: could a conveyancer draft it (see Dennis v Ministry of Defence [2003] All ER (D) 300 (Apr) 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 [1861-73] All ER Rep 965 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, that is 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 (per Lewison LJ at [87]-[91] of the judgment). Decision of Judge Seymour QC [2011] 4 All ER 1314 reversed.

Peter Harrison QC and William Upton (instructed by Richard Buxton Environmental & Public Law) for the claimants; the first defendant did not appear and was not represented; Robert McCracken QC and Sebastian Kokelaar (instructed by Pooley Bendall & Watson Solicitors) for the second and third defendants; Edward Denehan (instructed by Hewitsons) for the fourth and sixth defendants; the fifth defendant did not appear and was not represented.