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RETHINKING PRIVATE NUISANCE

IN THE TWENTY-FIRST CENTURY:


A CRITICAL ANALYSIS
OF COVENTRY v LAWRENCE

A paper based on the commended entry


in the Hudson Prize essay competition 2014

Paul Singh

August 2015

D179

www.scl.org.uk
RETHINKING PRIVATE NUISANCE
IN THE TWENTY-FIRST CENTURY:
A CRITICAL ANALYSIS
OF COVENTRY v LAWRENCE

Paul Singh*

A Introduction
Developments in the law of private nuisance have the potential to affect
virtually every person in England and Wales. It is not unreasonable then to
suggest that, if questioned, most lay people would be able to give opinions on
a number of issues within the area. In fact, if such people were aware of the
decision in one of the most famous cases in private nuisance (at least in a
construction context), then many of those sitting in front of their televisions
would be worrying about that ever-rising development next door, or thinking
about getting cable or a satellite dish. In Hunter v Canary Wharf, the House
of Lords unanimously held that interference with a terrestrial television signal
could not of itself amount to an actionable nuisance, as it was equivalent to
loss of a view or prospect.1 The case also made clear that an interest in
property is required to bring an action in nuisance, thus excluding a mere
licensee.2 The judgment represented a win for Goliath over David, affecting
not only the hundreds of Docklands inhabitants who brought the case but also
millions elsewhere across England and Wales.

However, in 2014, a pair of cases involving a speedway, motorbike and stock


car stadium and track near Mildenhall in Suffolk, Coventry v Lawrence, have
arguably raced ahead of Hunter as the new golden boy of private nuisance.3
The reasons for this seem to be:
1. Coventry (No 1) provides clarification on five issues rather than
two;

*
The original essay was based on a dissertation submitted for an MSc in Construction
Law & Dispute Resolution in the Dickson Poon School of Law at King’s College
London; the dissertation was awarded the prize for the best of 2013-2014.
1 Hunter v Canary Wharf [1997] AC 655, [1997] 2 WLR 684 (HL). The courts also used
arguments surrounding the general rule that a man is entitled to build what he likes on
his own land (subject to planning control) as a basis for their decision.
2 This overruled Khorasandjian v Bush [1993] QB 727, [1993] 3 WLR 476, [1993] 3 All
ER 669 (CA), in so far as it held that a mere licensee can sue in private nuisance.
3 Coventry (t/a RDC Promotions) v Lawrence (No 1) [2014] UKSC 13, [2014] 1 AC 422,
[2014] 2 WLR 433, [2014] 2 All ER 622, [2014] BLR 271, 152 Con LR 1. This was the
first and main judgment. The Supreme Court gave a second judgment five months later
resolving four outstanding issues, including the liability of the stadium’s landlords for
the nuisance created by their tenants: Coventry (t/a RDC Promotions) v Lawrence (No 2)
[2014] UKSC 46, [2015] 1 AC 106, [2014] 3 WLR 555.

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2. Three of these issues could have a more significant impact on this
area of law than Hunter;
3. Coventry even directly challenges views held by the Law Lords in
Hunter;4
4. Coventry may contain positive implications for residents as well as
for developers; and
5. The judgment touches on the controversial divide between private
and public nuisance.5

The five issues


In Coventry (No 1), proceedings were brought against the defendants, motor
cycle stadium and track owners, by nearby homeowners, Katherine Lawrence
and Raymond Shields. They claimed an injunction and damages for the
alleged noise nuisance, a form of injury to the amenity of their home, caused
by the defendants’ activities. The Supreme Court, Lord Neuberger giving the
leading judgment, had to provide clear outcomes on the following issues:

ISSUE 1 ISSUE 2 ISSUE 3 ISSUE 4 ISSUE 5


Can the terms of Can ‘the right Is it a defence Is it open to a When an
planning to commit to show that the defendant to actionable
permission nuisance’ by claimant rely on his/her nuisance has been
influence the noise develop acquired, or activities as established,
outcome of a into an moved into, constituting part should the courts
private nuisance easement or be his/her property of the character be able to choose
claim? acquired by after the of the locality not to award an
prescription? nuisance had in relation to injunction and
started? nuisance award damages
claims? instead?

Outcome 1: The role of planning permission


Although the judges expressly re-asserted the orthodox position that the courts
have the final say about whether or not an activity constitutes a nuisance, they
did acknowledge a role, albeit limited, for the local planning position.

4 Eg ‘... a grant of planning permission should [not] be a defence to anything which is an


actionable nuisance under the present law’: Lord Hoffmann in Hunter, note 1, page 710.
Before making his decision on this issue, Lord Neuberger confirmed the general point
that one could not allow ‘a statutory scheme to cut down private law rights’: Coventry
(No 1), note 3, para [92].
5 This paper is not directly concerned with public (or statutory) nuisance, although
inevitably touches on it. Nuisance in English law can be broadly divided into these two
branches, kept separate in order that public interests should not affect the rights of
private individuals. Vera Bermingham and Carol Brennan, Tort Law: Directions
(Oxford, OUP, 4th edition 2014) describe private nuisance as where the actions of the
defendant are ‘causing a substantial and unreasonable interference with a [claimant]’s
land or his use or enjoyment of that land’ (page 225); whereas public nuisance is where
the defendant’s actions ‘materially affects the reasonable comfort and convenience of life
of a class of Her Majesty’s subjects’ (page 241). Both require the claimant to prove that
the defendant’s actions caused (unreasonable) interference; however public nuisance is a
crime; and private nuisance does not allow a claim for personal injury suffered.

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Outcome 2: Prescriptive right for noise
Lord Neuberger affirmed firstly that a right to ‘transmit sound waves over
neighbouring land’6 which would otherwise be an actionable nuisance is
capable of developing into a (positive) easement; secondly, that the activity in
question does not necessarily have to be carried on uninterruptedly for twenty
years in order to establish a prescriptive right.7

Outcome 3: Coming to the nuisance


Coventry clarified that it is no defence for a defendant to contend that the
claimant came to the nuisance, although it may be a defence if the claimant
builds on, or changes the use of, his/her property after the defendant has
started the alleged nuisance.

Outcome 4: The relevance of the defendant’s own activity


The result is inherently difficult to summarise,8 so here is an extract from the
Supreme Court’s own press summary:
‘A defendant, faced with a contention that her activities give rise to a
nuisance, can rely on those activities as constituting part of the character
of the locality, but only to the extent that those activities do not
constitute a nuisance.9 In many cases it is fairly clear once the facts are
established whether a defendant’s activities constitute a nuisance, albeit
in some cases the court may have to go through an iterative process
when considering what noise levels are acceptable when assessing (i)
the character of the locality and (ii) what constitutes a nuisance.10 The
same principle applies to the defendant’s ability to rely on other uses as
forming part of the character of the locality.’11

Outcome 5: Injunction v damages


Before Coventry, the courts tended almost automatically to award an
injunction rather than damages where a right was infringed, only refusing the
former if the four well-known strict tests from Shelfer v City of London
Electric Lighting Co (No 1) were satisfied.12 Now it seems open to a
defendant to argue that damages are a suitable alternative, regardless of
Shelfer.

6 Lord Neuberger in Coventry (No 1), note 3, para [41].


7 ‘Subject to questions of notice and registration, the benefit and burden of the easement
would run with the land and so bind successors of the grantor’: Lord Neuberger in
Coventry (No 1), note 3, para [34].
8 Maria Lee in ‘Private Nuisance in the Supreme Court: Coventry v Lawrence’ [2014]
JPEL 712, labelled it as ‘not easy to interpret’ and the ‘most difficult to explain’.
9 Lord Neuberger in Coventry (No 1), note 3, para [74].
10 Lord Neuberger in Coventry (No 1), note 3, paras [71]-[72].
11 Supreme Court Press Summary, 26th February 2014: <www.supremecourt.gov.uk>.
12 Shelfer v City of London Electric Lighting Co (No 1) [1895] 1 Ch 287 (CA): for the four
tests, see note 67. The second judgment is Shelfer v City of London Electric Lighting Co
(No 2) [1895] 2 Ch 388 (CA).

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B Analysis of Coventry’s five outcomes
The role of planning permission
Lord Neuberger started with the High Court position,13 reiterating the view of
Carnwath LJ (as he then was) in Barr v Biffa Waste Services that ‘… there is
no principle that the common law should “march with” a statutory scheme
...’.14 He then balanced this in his judgment by adding: ‘However, there will
be occasions when the terms of a planning permission could be of some
relevance in a nuisance case.’15 So rather than the fact of its grant, it is the
terms of the planning permission that should be focused on when assessing its
relevance. Moreover, these terms will be at best supportive of a claim, rather
than having a conclusive or decisive effect. Both these principles were agreed
by all the Justices, which leads directly to the question: what types of terms or
conditions are more (or less) likely to support a claimant?

In Coventry (No 1), Lord Neuberger suggested that (in respect of noise) terms
such as specified decibel levels, times of operation and place of operation may
be of ‘real value’ in cases where there is a focus on these.16 Lord Carnwath
was more general in his analysis and stated that planning permission could
provide a ‘starting point’ or ‘benchmark’ for a court’s consideration of
nuisance if it ‘includes a detailed, and carefully considered, framework of
conditions governing the acceptable limits of a noise use’.17

However, although almost all planning permissions do contain conditions,


Local Planning Authorities (LPAs) appear to have a wide discretion about
what to exactly to include. For example, section 70(1) of the Town and
Country Planning Act 1990 (TCPA) gives an LPA a general authority to
impose ‘such conditions as they think fit’,18 provided that each satisfies basic
tests such as relating fairly and reasonably to a planning purpose and to
permitted development.

Although there are these limitations on the power of the LPA to impose
conditions, enforcing them is usually done retrospectively by the courts and
the Secretary of State.19 So unless the grant of planning permission is actually
challenged, the LPA’s conditions may never be scrutinised against these
criteria. Moreover, there have even been cases where the courts have refused
to overturn an LPA-imposed condition covering land which is not within the

13 Lawrence v Fen Tigers Ltd [2011] EWHC 360 (QB): judgment by Judge Richard
Seymour QC.
14 Lord Neuberger in Coventry (No 1), note 3, para [92], quoting Carnwath LJ in Barr v
Biffa Waste Services Ltd [2012] EWCA Civ 312, [2013] QB 455, [2012] 3 WLR 795,
[2012] BLR 275, 141 Con LR 1, para [46](ii).
15 Coventry (No 1), note 3, para [96].
16 Coventry (No 1), note 3, para [96].
17 Coventry (No 1), note 3, para [218].
18 Other sections of the same Act authorise (or imply) specific types of condition.
19 In offering ‘guidance’ in Circular 11/95 and in determining appeals against the
imposition of conditions.

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ownership of the developer and thus fails one of the tests above.20 In addition,
what cannot legally be done by a condition may be achieved by a ‘section 106
agreement’.21

Giving each LPA a significant amount of freedom to incorporate conditions


into a planning permission (and to enter into a ‘section 106 agreement’) can
create immediate uncertainty for all stakeholders: will these restrictions on
land use later be relevant to a potential nuisance claim? Coventry (No 1) is a
good example of a situation where the conditions of the planning permissions
were too vague to be relevant to the Supreme Court’s decision, though Lord
Carnwath suggested that the LPA could have ‘at some stage attempt[ed] to
secure an overall agreement relating to the operation of activities on the
combined sites’.22 The specific data linked to the permissions, such as some
limits on days or hours, were unclear and unenforceable, the judge thought.
Moreover, where the LPA ‘did attempt in 2008 to impose some overall control
by use of their statutory nuisance powers’,23 this only imposed on the owners
the limited requirement to use the ‘best practicable means’ to comply with the
resulting abatement notice.

Contrast this with the table below from Watson v Croft Promo-Sport Ltd,24
where the judges were provided with a framework of precise noise criteria, in
the form of a ‘section 106 agreement’:

EVENT TYPE NOISE LEVEL FREQUENCY (NO OF DAYS)

N1 under 95dBA not more than 10


N2 not more than 93dBA not more than 40
N3 not more than 85dBA not more than 70
N4 not more than 78dBA not more than 110
N5 70dBA or below unlimited

It is easy to see from this level of detail why the judges in Watson were able to
use this information as a benchmark in setting both ‘the threshold of the
acceptable’ and ‘the limits of their injunction’ in nuisance.25 The judges in
Coventry (No 1) had nothing equivalently helpful.

A possible way forward would be to comprehensively standardise in law the


way in which a grant of planning permission may set out conditions, instead of
leaving the process almost completely in the hands of each LPA. How this

20 Grampian Regional Council v City of Aberdeen DC [1984] JPL 590 (HL).


21 The Planning and Compensation Act1991 (PCA) modified/inserted this section into the
Town and Country Planning Act 1990. It allows bilateral and unilateral undertakings to
regulate the use of development of land, which are enforceable by the LPA against
successors in title of the original developer who had made the agreement.
22 Lord Carnwath in Coventry (No 1), note 3, para [227].
23 Lawrence v Fen Tigers Ltd, note 13, paras [115]-[117].
24 Watson v Croft Promo-Sport Ltd [2009] EWCA Civ 15, [2009] 3 All ER 249, [2009]
JPL 1178, para [10].
25 Coventry (No 1), note 3, para [225].

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could be incorporated into the process by which a Lawful Development
Certificate is issued would also need to be considered.26 Nevertheless, a fully
standardised procedure does not seem impossible if the right minds could get
together.

Perhaps the main barrier (apart from the obvious potential extra cost to LPAs,
which could in theory be passed onto the landowner/developer) is the fear of
expressly allowing public interests to affect the rights of private individuals.
If the situation were to remain as it is post-Coventry (No 1) (that is, LPAs
pretending ignorance of the fact that judges will use their data), then there
would be little danger of anyone stepping on anyone else’s toes.

A prescriptive right for noise?


Following Coventry (No 1), a legal right or easement for what would
otherwise be an actionable nuisance can be established by prescription if:
o it is in fact a nuisance;
o has continued uninterruptedly for twenty years;
o is acceptable; and
o the use is ‘as of right’.

The Supreme Court judgments discuss whether the right to make a noise
which would otherwise be a nuisance can actually be an easement (and so run
with both the benefitting and burdened plots of land). Even Lord Neuberger
conceded that it may be an ‘unusual easement’,27 especially if acquired by
prescription rather than express grant. This is because: (i) noise may be heard
in a large number of different properties; and (ii) a noise right would only be
exercisable at specified times or for specific purposes. Nevertheless, there
exist ways of justifying a noise easement and one way was even proposed in
the judgment, by viewing it more as ‘... a right to transmit sound waves over
[the servient land]’.28

However, there was in our view too much flexibility in Lord Neuberger’s
reasoning, as exemplified by his closing statement on this particular matter:
‘Given the property-based nature of nuisance, and given the undesirable
practical consequences if the benefit and burden of the right to emit a
noise would not run with the relevant land, it appears to me that both
principle and policy favour the conclusion that a right to create what
would otherwise be a nuisance by noise to land can be an easement.’29

26 For example, a Certificate of the Lawfulness of Existing Use or Development (CLEUD)


or Certificate of the Lawfulness of a Proposed Use or Development (CLOPUD).
27 Coventry (No 1), note 3, para [32].
28 Coventry (No 1), note 3, para [33].
29 Coventry (No 1), note 3, para [34].

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In other words, rather than arguing the logical way by explaining how the right
may be an easement,30 he takes the unorthodox approach of stating what the
right should do and then manipulating the outcome to suit. Perhaps a better
solution – not obviously Lord Neuberger’s intention – would be to create a
new third category of easement, positioned between positive and negative
ones, but closer to the former.31 Allowing it to sit in a separate category in this
way would help support the need for a more fact-sensitive approach to be
taken in terms of both establishing and managing the easement, as there will
be – amongst other factors – difficulty in identifying the extent of the
prescribed right if the level and intensity of noise varied while the right was
being acquired.32

Whether creating a new category of easement was Lord Neuberger’s intention


or not, his strategy of accepting an easement of noise is understandable, in the
light of previous case law supporting its existence,33 also since all the other
Justices in Coventry (No 1) agreed with him. Moreover, most of the issues
would be avoided were the right to be conferred instead by a ‘perfectly valid
grant’34 as even if there were no evidence that any levels had regularly been
achieved for twenty years35 they could be established and defined as part of the
grant.

In addition, the legal right, even if acquired by prescription, could be treated as


a licence which could expire on transfer of possession by the dominant
landowner, rather than as a right in land.36 Determining whether to recognise a
noise easement or just a so-called licence will very much depend on the
specifics of the nuisance/case in question, as currently with rights to park.37

30 Perhaps using the objective criteria from Re Ellenborough Park [1956] Ch 131, [1955] 3
WLR 892, [1955] 3 All ER 667 (CA): (1) There must be a dominant and a servient
tenement; (2) An easement must ‘accommodate’ the dominant tenement; (3) The
dominant and servient owners must be different persons; and (4) A right over land
cannot amount to an easement unless it is capable of forming the subject matter of a
grant.
31 The right is closer to a positive easement since it enables the dominant landowner to emit
noise over, or into, the servient land.
32 Other factors include: (1) Uncertainty about when exactly the prescription period
commenced. Being more of a positive easement, this may be when the noise actually
constituted a nuisance; however, this would still be much more difficult to establish than
other types. (2) Relative difficulty in dealing with subsequent changes in use by the
noise-maker, compared to other rights. And (3) Hurdles associated with monitoring and
determining breaches of the noise easement, once the right has been established. The
landowner will probably need to show that he/she has taken all reasonable steps to
ensure that noise is minimised.
33 Lord Parker of Waddington in Pwllbach Colliery Co Ltd v Woodman [1915] AC 634
(HL), page 646, in turn referring to Lyttleton Times Co Ltd v Warners Ltd [1907] AC 476
(PC). See also Lewison LJ in Coventry (t/a RDC Promotions) v Lawrence [2012]
EWCA Civ 26, [2012] 3 All ER 168, [2012] 1 WLR 2127, 141 Con LR 79, para [88].
34 Lord Sumner sin Pwllbach Colliery v Woodman, note 33, page 649, in this case referring
to the spread of coal dust over adjoining land emanating from the property owner’s land.
35 As in Dennis v Ministry of Defence [2003] EWHC 793 (QB).
36 Martin Dixon, The Sound of Silence [2014] Conv 79, page 80.
37 There are many cases where the judges have focused on the exact facts to determine
whether the right is an easement or not. Two contrasting examples are Copeland v
Greenhalf [1952] Ch 488 (ChD) at 498 (no easement) and Hair v Gillman [2000] 3

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That said, whether acquired by prescription, grant or licence, the verdict in
Coventry, does at least represent another route of argument for relevant
parties.

Despite acknowledging the possibility, Lord Neuberger identified three


specific problems that may occur with acquiring a right by prescription:
‘The first is that the twenty years can only run when the noise amounts
to a nuisance. ... Secondly, there could obviously be difficulties in
identifying the extent of the easement obtained by prescription ...
Thirdly, there could also be a connected problem of deciding how
much, if any, more noise could be emitted pursuant to the acquired right
than had been emitted during the twenty years.’38

To mitigate the first two, he takes a holistic approach by pointing out that
twenty years use does not have to be continuous, noting that Patterson J in
Carr v Foster39 was willing to accept seven years interruption.40 He also
explained later on in the judgment how to decide what is or is not considered
‘un-interruption’ by stating that ‘it is a question of degree, and that is shown
by ... the facts.’41 He did not, however, go much further than this, other than
to outline a similar case, which leads to the question of what exactly
constitutes ‘uninterrupted’ enjoyment?

The case discussed in detail by Lord Neuberger was White v Taylor,42 which
concerned the right for one owner of land to graze sheep on a down located on
another owners’ land (ie ‘sheep rights’).43 As with Coventry, the use had
previously not been continuous but this time there were two periods (each of
five or six years) during which the sheep owner made no use of the down.
The judge again looked specifically at the nature of the right:
‘… it was not necessary for a claimant to establish that he and his
predecessors in title had exercised the right continuously, the right ... of
its nature ... be(ing) used intermittently, but the user must be shown to
have been of such a character, degree and frequency as to indicate an
assertion of a continuous right ...’44

Buckley J even analysed the nature of sheep rights, where flocks would not
‘be on the down at lambing time, or for 24 hours of the day, or very possibly
on every day of the week or all round the year’. This is similar to the way in
which Lord Neuberger pointed out the unusual features of noise before

EGLR 74 (CA), page 75 (easement).


38 Lord Neuberger in Coventry (No 1), note 3, para [36].
39 Carr v Foster 114 ER 629, (1842) 3 QB 581, pages 586-588.
40 Coventry (No 1), note 3, para [37].
41 Lord Neuberger in Coventry (No 1), note 3, para [141].
42 White v Taylor (No 2) [1969] 1 Ch 160, [1968] 2 WLR 1402, (1968) 19 P & CR 412.
43 Buckley J held that a right to graze sheep on the down would not be properly called an
easement. It would be a profit or a right over or upon or affecting the down: White v
Taylor, note 42, page 177.
44 White v Taylor, note 42, page 164.

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concluding that it still can be an easement45 and, although the prescription
claim was ultimately defeated in both cases, they do demonstrate the
flexibility of judges in relation to prescriptive rights.

‘As of right’

In the Court of Appeal, Lewison LJ suggested that the noise did not
necessarily have to constitute a nuisance at any point during the twenty-year
period for the right to emit noise to be potentially acquired by prescription.46
Lord Neuberger disagrees,47 on the basis that it was inconsistent with the
definition of ‘as of right’.48

Thus, he strictly believes that the noise must constitute a nuisance to give the
affected owner an opportunity to stop it. If it is then not stopped, it could
genuinely be said to be ‘as of right.’ In fact this was ultimately the basis for
rejecting the establishment of the easement in Coventry, in keeping with the
inherently difficult nature of the requirement.49 This time, Lord Neuberger
chooses not to be as flexible with his interpretation, perhaps suggesting a more
significant role for the ‘as of right’ requirement over the one of lack of
interruption.

Arguments for a defendant


Coming to the nuisance

There are two parts to this issue within the case. The first concerns where a
defendant cannot rely on the defence that the claimant came to the nuisance,50
where all the Justices seem agreed. The second part is more controversial,
however:
‘... a claimant who builds on, or changes the use of, her property, after
the defendant has started the ... alleged ... nuisance ... should not have

45 Lord Neuberger in Coventry (No 1), note 3, para [36].


46 To clarify, the judge raised but did not necessarily endorse this suggestion: Coventry (t/a
RDC Promotions) v Lawrence, note 33, para [91].
47 Coventry (No 1), note 3, para [43]. The approach was considered, and also rejected, by
the Court of Appeal in Sturges v Bridgman (1879) 11 Ch D 852.
48 ‘... that is, nec vi, nec clam, nec precario (‘not by force, nor stealth, nor with the licence
of the owner’), as Lord Walker put it in R (Lewis) v Redcar and Cleveland BC [2010] 2
AC 70, para [20], of that which he now claims to be entitled to enjoy by right’: Lord
Neuberger in Coventry (No 1), note 3, para [31].
49 Martin Dixon, note 36, notes a series of discussions about ‘as of right’ in recent
literature.
50 As identified by Lord Neuberger, the main reasons for this are: (1) ‘For over 180 years it
has been assumed and authoritatively stated to be the law ...’ Coventry (No 1), note 3,
para [51]. Examples of where the principle has been followed are Bliss v Hall (1838) 4
Bing NC 183; Sturges v Bridgman, note 47; London, Brighton and South Coast Railway
Co v Truman (1885) 11 App Cas 45; Miller v Jackson [1977] 1 QB 966 (CA); and (2) it
‘is consistent with the fact that nuisance is a property-based tort, so that the right to
allege a nuisance should, as it were, run with the land.’ Coventry (No 1), note 3, para
[52].

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the same rights to complain about that activity as she would have had if
... [it] ... had occurred before the defendant’s activity had started.’51

In addition, Lord Neuberger goes on to suggest additional criteria that may


need to be satisfied in order for a defendant to successfully defend a claim.52
There is sound reasoning behind this second part, as before the claimant raised
the claim, the defendant’s activity (if lawful) was already a part of ‘the
character of the neighbourhood.’53 Moreover, it allows ‘give and take’54
between neighbours in nuisance claims, which perhaps would even have
satisfied Lord Denning MR in the famous case of Miller v Jackson.55

However, creating an exception in this way could potentially nullify the 180-
year-old rule, one of whose functions is to protect new development. Maria
Lee in her article about Coventry reviewed the cases that Lord Neuberger
relied on, finding almost all about changes in use rather than of ownership.56
Obviously, firm conclusions are difficult to draw from this sample of only five
cases; however, it could indicate that most claims that reach court could be
about changes in use – giving defendants the opportunity to just ‘take’.57

The relevance of the defendant’s own activity

The alert reader may immediately notice the ‘element of circularity’58 in the
reasoning above. A court will have to assess initially whether the defendant’s
activities amount to a nuisance in order to establish whether these activities

51 Lord Neuberger in Coventry (No 1), note 3, para [53].


52 For example, there may need to be proof that: ‘... it was not a nuisance before the
building or change of use of the claimant’s land ...’. Also note that Lord Neuberger
explicitly states that these are not intended to be strict criteria: Coventry (No 1), note 3,
para [56].
53 Lord Neuberger in Coventry (No 1), note 3, para [55].
54 Lord Goff in Cambridge Water Company v Eastern Counties Leather plc [1994] 2 AC
264 (HL), page 299.
55 Miller v Jackson, note 50, where Lord Denning MR suggested, page 981, that the proper
approach was to ‘balance the right of the cricket club to continue playing cricket ... as
against the right of the householder’. However, it is unclear whether this was his general
view or one adapted, in true Denning-style, to right a wrong (ie the club had been
playing for 70 years). Also, it is worth pointing out that Miller was unusual in raising
‘coming to the nuisance’ as a defence, given that it involved physical damage (not
amenity harm), which would (or should) be a nuisance whatever the locality. Lord
Neuberger said as much in Coventry (No 1), note 3, paras [55]-[56].
56 Maria Lee, note 8, fn 61. She found that Sturges v Bridgman, note 47, and Miller v
Jackson, note 50, were about changes in use. Bliss v Hall (1838) 4 Bing NC 183 may
have been a case of change of ownership rather than use and the passing reference to
coming to the nuisance in London, Brighton and South Coast Railway v Truman (1885)
LR 11 App Cas 45 was clearly about a change of use. Finally, Fleming v Hislop (1886)
LR 11 App Cas 686 was about a change to residential use.
57 For example, in Sturges v Bridgman, note 47, an injunction was granted against the
defendant as he could not prove that he had acquired a noise and vibration easement.
However, had this case arisen post-Coventry, he could have been able to argue that the
claimant had no right to complain in the first place, as the noise and vibration had only
become a nuisance after the claimant had changed his use. This, at the very least, shows
that Lord Neuberger’s exception could have more of an impact than initially appears.
58 Acknowledged by Lord Neuberger in Coventry (No 1), note 3, para [71].

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can be used to judge the established pattern of uses in the locality, which in
turn will be used to assess whether the same activities are a nuisance. Lord
Neuberger sees no problem in those cases where it is initially clear from the
facts that the defendant’s activities constitute a nuisance or that the nuisance
can be evaluated pro rata, so to speak.59 He does, though, eventually express
concern about the potentially iterative process that may be required to cope
with other cases, where circularity cannot be avoided. Unfortunately, his
justification for putting up with this is relatively weak, most fittingly captured
by the common phrase: ‘well, it is better than nothing’. However, it is
arguably better than the other two choices: (1) Ignore the activity in question
altogether, which could be unfair on a defendant; or (2) Take into account the
activity even if it is a nuisance – which is even more circular than the
preferred choice (as well as being unfair on the claimant).60

Lord Carnwath takes a more radical approach by rejecting the iterative process
and concluding that ‘an existing activity can in my view clearly be taken into
account if it is part of the established pattern of use.’61 He proposes that the
courts continue doing what they had been doing,62 taking each issue on its
merits to establish what is acceptable via, for example, the careful and fair
crafting of injunctions.63 Lord Carnwath’s basis for this view is his general
confidence that the planning system will already have taken all the
considerations into account.64

Despite the differences between them, all the Justices raise good points and
suggest potential solutions. We can conclude that, in assessing the relevance
of the defendant’s activities, flexibility to adapt the courts’ evaluative
processes and eventual remedies to the merits of the case will be essential in
the more complicated cases.

Injunction v damages
‘Cautiously going against the grain’

Opening the door wider to the possibility of a defendant showing that damages
are a suitable alternative to an injunction may represent the most significant
aspect of the five (first) Supreme Court judgments. Not only does this go
against Judge Seymour’s rationale for awarding an injunction against the

59 Lord Neuberger uses the current case as an example of where the judge took ‘noise
levels at other well-established racing circuits elsewhere in the country’ as an indicator:
Coventry (No 1), note 3, para [71].
60 Lord Neuberger’s full justification can be found in Coventry (No 1), note 3, para [73].
61 Lord Carnwath in Coventry (No 1), note 3, para [187].
62 For example in Rushmer v Polsue & Alfieri Ltd [1906] 1 Ch 234 (CA); Kennaway v
Thompson [1981] QB 88 (CA).
63 Lord Carnwath in Coventry (No 1), note 3, para [190].
64 ‘After more than 60 years of modern planning and environmental controls, it is not
unreasonable to start from the presumption that the established pattern of uses generally
represents society’s view of the appropriate balance of uses in a particular area, taking
account both of the social needs of the area and of the maintenance of an acceptable
environment for its occupants’: Lord Carnwath in Coventry (No 1), note 3, para [183].

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defendants in the case itself,65 but it also modifies established principles dating
as far back as 1895. Before Coventry, and despite Lord Cairns’ Act of 1858,66
which gave courts power to award damages in these types of situation, it
appeared necessary to follow Shelfer: an injunction should be granted unless
the four ‘good working rule(s)’ in the case were satisfied.67

Thus, the trial judge was, in theory, well supported by authority in deciding to
award an injunction; however, this did not stop the Supreme Court Justices in
the first case calling for a more flexible approach to this sort of discretionary
remedy. Although there are a number of nuances in their respective decisions
and also some forthright opinions, they seem keen to avoid setting down
Shelfer-like rules in the current case.68 These should instead be established
case-by-case. The question thus becomes less about who is right in the current
case and more about who is likely to be right in future cases.

Injunction or damages as the starting-point?

Simplified, this question arises from the contrasting opinions of Lord


Neuberger and Lord Sumption about the shelf-life of Shelfer. Lord Neuberger
reviews the current authorities and compares the cases that strictly applied
Shelfer principles69 with those that have taken a more open-minded
approach.70 He concludes that the former approach was ‘... simply wrong in
principle, and give(s) rise to a serious risk of going wrong in practice.’71 He

65 In the High Court judgment in Lawrence v Fen Tigers Ltd: note 13.
66 The Chancery Amendment Act 1858 (21 & 22 Vict c 27); see now the Senior Courts Act
1981 s 50.
67 The Shelfer tests are: ‘(1) If the injury to the plaintiff’s legal rights is small [not satisfied]
(2) And is one which is capable of being estimated in money [satisfied] (3) And is one
which can be adequately compensated by a small money payment [not satisfied] (4) And
the case is one in which it would be oppressive to the defendant to grant an injunction
[satisfied] - then damages in substitution for an injunction may be given’: AL Smith LJ
in Shelfer (No 1), note 12, pages 322-323. The added text in square brackets shows
whether, in our view, the facts in Coventry satisfied each test. Interestingly, Shelfer was
never expressly mentioned in the High Court judgment by Judge Seymour. By stating
‘[a] remedy usually afforded in the case of a continuing nuisance is an injunction
restraining those committing the nuisance from continuing to do so’, he treated
injunctions as the default remedy, regardless of whether the Shelfer tests were satisfied:
Lawrence v Fen Tigers Ltd, note 13, para [236]. Two well-known examples of strict
adherence to the tests are Regan v Paul Properties Ltd [2006] EWCA Civ 1391, [2007]
Ch 135, [2007] 4 All ER 48, [2007] BLR 56; and Watson v Croft Promo-Sport, note 24.
It is also worth noting that Lindley LJ in Shelfer stated that damages would be awarded
instead of an injunction only in ‘very exceptional circumstances’ (page 316). Of course,
there have also been contrasting examples where damages have been preferred, eg
Fishenden v Higgs & Hill Ltd (1935) 153 LT 128 (CA) and Jaggard v Sawyer [1995] 1
WLR 269, [1995] 2 All ER 189 (CA).
68 Lord Neuberger says as much in the last paragraph of his discussion about remedies:
Coventry (No 1), note 3, para [132].
69 That is, only awarding damages in exceptional circumstances, eg Regan v Paul
Properties, note 67, and Watson v Croft Promo-Sport, note 24.
70 For example, by taking into account the parties’ conduct, as in Colls v Home & Colonial
Stores Ltd [1904] AC 179 (HL), Kine v Jolly [1905] 1 Ch 480 (CA) and Fishenden v
Higgs & Hill: note 67. See also note 83 and its linked main text.
71 Coventry (No 1), note 3, para [116].

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then relies on Millett LJ in Jaggard v Sawyer about these authorities: ‘since
they are all cases on the exercise of a discretion, none of them is a binding
authority on how the discretion should be exercised’.72 This leads him to
propose a modified version of the Shelfer four tests,73 keeping the injunction
as the starting-point but allowing the exercise of the court’s discretion.74

By contrast, Lord Sumption’s more radical approach stresses the negative side
of the injunction as the default remedy: injunctions impact on ‘the whole
world’;75 the courts ordinarily do not grant injunctions in cases where there is
an adequate legal remedy;76 the Shelfer approach is arguably overly
moralistic;77 damages are in accordance with modern economic theory;78 and
damages are the standard remedy when the public interest conflicts with a
proprietary right.79

Lord Sumption’s notion, in our view, is what should eventually be adopted, as


based on objective reasoning. Lord Neuberger, on the other hand, seems to be
allowing morality (which is undoubtedly a subjective concept) to influence his
decision-making.80 In Coventry (No 1), he appears to avoid ‘sanctioning a
wrong’81 by refusing to identify damages as the default remedy. Doing this
could advantage defendants (who would usually be businesses) by allowing
them to buy off (individual) claimants.82 Moreover, the open-minded
approach taken by three leading cases allows more space for moralistic
judgments, as it includes assessing the parties’ conduct.83 Therefore, whether
the law develops in the way it should do may perhaps depend on who will be
the judge as much as what the facts of the case are.

The impact of planning permission on the choice of remedy

As already summarised, the discussions in the Supreme Court show a variety


of judicial views about the impact of planning permission on liability in
private nuisance; but all support its relevance to the choice of remedy.
Leaving aside Lord Sumption’s extreme view that an injunction should not be
granted where it relates to activities for which there is planning permission,

72 Jaggard v Sawyer, note 67, para [56].


73 Influenced by Romer LJ in Fishenden v Higgs & Hill, note 67, page 141.
74 Coventry (No 1), note 3, para [123].
75 Coventry (No 1), note 3, para [157].
76 However, this principle has never been consistently followed in cases of nuisance:
Coventry (No 1), note 3, para [159].
77 Coventry (No 1), note 3, para [160].
78 So damages reflect normal commercial expectations and ensure a more efficient
allocation of scarce economic resources: Coventry (No 1), note 3, para [160].
79 Coventry (No 1), note 3, para [157], in relation to where planning permission has already
been granted.
80 Lord Denning was perhaps the master of mixing morality with law, as in Miller v
Jackson: note 50 and its linked main text.
81 Lord Sumption in Coventry (No 1), note 3, para [160].
82 In this way, Lord Neuberger may be adopting the Denning approach.
83 See note 70: all of these cases avoid criticism by Lord Neuberger in Coventry (No 1),
note 3, para [117].

13
with which Lords Carnwath and Mance explicitly disagree,84 the majority
seems to prefer to leave the door slightly ajar. They appear to accept the
possibility of an injunction even where planning permission is in place. This
would especially be relevant where, as Lord Neuberger put it, the permission
was ‘reasonably and fairly influenced by the public benefit of the activity.’85
Moreover, other relevant factors may need to be taken into account:
1. The conduct of both the defendant and claimant;
2. Where an injunction would involve a loss to the public or a waste
of resources;
3. Where the financial implications of an injunction for the defendant
would be disproportionate to the damage done to the claimant if
s/he was left to her claim in damages; and
4. Where an injunction would in practice stop the defendant from
pursuing the activities.86

However, these possibly relevant factors are described in a deliberately


cautious way, in order to avoid setting precedent or principle; so there is still
no clear guidance on the factors which determine whether an injunction or an
award of damages will be appropriate. Lord Sumption may be overestimating
the process by which planning permissions are granted, assuming that the
relevant authorities always correctly take into consideration the wider public
benefit. That said, the greater the public benefit provided by a
business/activity, the less likely an injunction should be: this is a point that all
the Justices are trying to make. If clear guidance were to come from future
cases, it could be along these lines:

Where planning permission is in place covering the activity in question,


granting an injunction would not be appropriate if:
(i) It can be proved (through an examination of the decision-making
process that preceded the granting of permission) that the public
benefit was taken into account;
(ii) It would be impossible to draft the injunction without it
oppressively affecting the defendant’s commercial interests;
(iii) The parties’ conduct warrants a different remedy;
(iv) An injunction would lead to a loss to the public or a waste of
resources; and
(v) There would be disproportionate financial implications.

84 Lord Clarke’s position is not clear, although the tone of his entire judgment suggests that
he would be in favour of a more open approach than Lord Sumption: Coventry (No 1),
note 3, para [161].
85 Coventry (No 1), note 3, para [125].
86 Coventry (No 1), note 3, paras [117] and [126].

14
How should damages be assessed?

There was a limited debate on this issue in the Supreme Court,87 since the
Justices agree that these are ‘all matters for the future’,88 mainly because the
injunction v damages issue was not actually raised at first instance before the
High Court. The case on appeal may therefore be a missed opportunity to
establish firmer guidelines. For example, if a court awarded the claimant all
or some of the three possible types of damage instead of an injunction,89 then
how exactly would these be calculated for noise nuisance and who would do
this? Perhaps a court could use experts, such as estate agents and/or noise
technicians.90 Or more innovative methods could be adopted, as in Anslow v
Norton Aluminium, where Judge McKenna applied to an odour nuisance case
the ‘tried and trusted method of assessing figures for general damages as
would be done in personal injury claims where there is a claim for loss of
amenity...’.91 Future courts may need such creativity in order to assess
damages.

C Conclusions
There is little doubt that Coventry takes steps towards re-defining aspects of
the common law of nuisance. However, it is less certain whether the Justices
fully grasped the ‘important opportunity’, as Lord Carnwath sees it, to do so.92
On one side, they have fearlessly cut through boundaries;93 whilst on the other,
they have anxiously cut short arguments mid-way so as not to set precedents.94
Nevertheless, what they did do correctly was plant new seeds into the
neglected forest of private nuisance. They did this by introducing new (and

87 Lord Clarke says that the traditional approach would be to assess the loss of value of the
property caused by the nuisance (and perhaps include or substitute general damages if
this is not possible to prove): Coventry (No 1), note 3, para [172]. A way of calculating
general damages was shown in Ruxley Electronics and Construction Ltd v Forsyth
[1996] AC 344 (HL). However, Lord Neuberger goes further than this by suggesting ‘…
where a claimant has a prima facie right to an injunction to restrain a nuisance, and the
court decides to award damages instead, those damages should not always be limited to
the value of the consequent reduction in the value of the claimant’s property…’:
Coventry (No 1), note 3, para [128]. Lord Clarke acknowledges the merits of both these
approaches, whilst Lord Carnwath is more tentative.
88 Lord Clarke in Coventry (No 1), note 3, para [173].
89 (1) Consequent reductions in the value of the claimant’s property; (2) The benefit to the
defendant of not suffering an injunction; and/or (3) A licence fee payable to the claimant
for the defendant’s right to commit the noise nuisance.
90 As in Dobson v Thames Water Utilities Ltd [2009] EWCA Civ 28, [2009] 3 All ER 319,
[2009] BLR 287.
91 Anslow and others v Norton Aluminium Ltd [2012] EWHC 2610 (QB), para [474].
92 Lord Carnwath in Coventry (No 1), note 3, para [176], quoting from Dr Ben Pontin,
Nuisance Law and Environmental Protection: A Study of Nuisance Injunctions in
Practice (Lawtext Publishing, 2013), page 184.
93 Eg by narrowing the gap between private and public nuisance and confirming the
possibility of acquiring a noise easement by prescription.
94 This is perfectly exemplified by both the injunction v damages and locality debate. They
have even, in my view, potentially damaged a 180-year-old rule by creating an
unnecessary exception. See the section on ‘Coming to the nuisance’ for more details.

15
highlighting old) areas of uncertainty, perhaps in the hope of forcing
legislative change.

Taking easements as an example, the Law Commission in England & Wales


has published a number of reports attempting to fill gaps in this area; in June
2011 it even proposed a new comprehensive statutory regime.95 Coventry has
again brought up the need for change and more robust rules, especially in
regard to prescription. However, ‘… it is not realistic to look for a single,
across the board response to the complicated relationship between ... nuisance
and planning permission ...’;96 but the Justices have shown that movement
forward may be possible without imposing definitive solutions on the
problem. In fact, given the intricate nature of the issues at hand, which the
Justices had to deal with all at once, it would have probably been undesirable
to do this. As Alan Paterson puts it:
‘... it is often not possible [for the highest appeal court] to reach a final
solution of a difficult problem all at once. It is better to put up with
some uncertainty – confusion if you like – for a time, than to reach a
final solution prematurely.’97

So intentionally creating uncertainty for the greater good may have been the
Justices’ master plan, as Lord Neuberger seems to accept.98 But the result has,
ironically, created more nuisance for the law of nuisance.

Paul Singh is a quantity surveyor, currently working on a number of major


projects around the UK with Systech International Ltd, international
construction consultants. He has a BSc in both quantity surveying and
psychology and in 2014 was awarded an MSc in Construction Law and
Dispute Resolution by King’s College London.

© Paul Singh and the Society of Construction Law 2015

The views expressed by the author in this paper are his alone, and do not necessarily
represent the views of the Society of Construction Law or the editors. Neither the
author, the Society, nor the editors can accept any liability in respect of any use to
which this paper or any information or views expressed in it may be put, whether
arising through negligence or otherwise.

95 The Law Commission’s overall aim is to ‘modernise and simplify the law, removing
anomalies, inconsistencies and unnecessary complications where they exist’; in this area,
see its report Making Land Work: Easements, Covenants and Profits à Prendre (Law
Com No 327).
96 Lord Carnwath in Coventry (No 1), note 3, para [198], quoting Maria Lee, note 8, page
284.
97 Alan Paterson, Final Judgment: The Last Law Lords and the Supreme Court (Oxford,
Hart Publishing, 1st ed 2013), page 100.
98 In relation to the injunction v damages debate, Lord Neuberger accepts that ‘we are at
risk of introducing a degree of uncertainty into the law’: Coventry (No 1), note 3, para
[132].

16
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