Principles of Private Nuisance

On 26 February 2014, the Supreme Court delivered an important judgment on the principles of private nuisance. The case related to a noise nuisance caused by the Respondents’ motocross and speedway stadium.

The Supreme Court unanimously allowed the appeal by the Appellants who lived near to the stadium. The Supreme Court concluded that:

• It is possible to acquire a right to commit what would otherwise be a noise nuisance by prescription (over 20 years)

• It is not generally a defence to a claim in nuisance to show that the claimant “came to the nuisance” by acquiring or moving into their property after the nuisance had started. However, in some circumstances, it may be a defence that it is only because the claimant has changed the use of their land that the defendant’s pre-existing activity is claimed to have become a nuisance

• A defendant can rely on its activities as constituting part of the character of the locality, but only to the extent that those activities do not constitute a nuisance

• It is wrong in principle that the grant of planning permission should deprive a property owner of a right to object to what would otherwise be a nuisance, without providing compensation. However, there will be occasions when the terms of a planning permission could be of some relevance in a nuisance case

• The existence of a planning permission which expressly or inherently authorises carrying on an activity in such a way as to cause a nuisance can be a factor in favour of a court refusing an injunction and compensating the claimant in damages. In a number of recent cases, judges have been too ready to grant injunctions without considering whether to award damages instead.

Written by James Naylor

Partner, CG Naylor LLP.