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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Coventry (t/a RDC Promotions) & Anor v Lawrence & Ors (Rev 1)  EWCA Civ 26 (27 February 2012)
Cite as:  WLR(D) 49,  3 All ER 168,  PTSR 1505,  10 EG 88,  Env LR 28,  1 WLR 2127,  EWCA Civ 26, 141 Con LR 79,  1 EGLR 165
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ON APPEAL FROM THE HIGH COURT OF JUSTIC QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE SEYMOUR QC (SITTING AS A JUDGE OF THE HIGH COURT)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LORD JUSTICE LEWISON
| (1) DAVID MICHAEL COVENTRY (T/A RDC PROMOTIONS)
(2) MOTO-LAND UK LIMITED
|Appellants/2nd and 3rd Defendants
|(1) KATHERINE LAWRENCE
(2) RAYMOND SHIELDS
(1) TERENCE RAYMOND WATERS
(2) JAMES EDWARDS WATERS
|Respondents/Claimants/ Appellants on Cross Appeal
4th and 6th Defendants/ Respondents on Cross Appeal
Mr. Peter Harrison QC and Mr. William Upton (instructed by Richard Buxton Environmental & Public Law) for the Respondents/Claimants and Appellants on Cross Appeal.
Mr. Edward Denehan (instructed by Hewitsons LLP) for the 4th/6th Defendants and Respondents on Cross Appeal.
Hearing dates: 13th, 14th and 15th December 2011 and 16th February 2012
Crown Copyright ©
Lord Justice Jackson :
Part 1 . Introduction,
Part 2 . The Facts,
Part 3 . The Present Proceedings,
Part 4 . The Appeal to the Court of Appeal,
Part 5 . The Law,
Part 6 . The Planning Permission Issue,
Part 7. The Application for Remission
Part 8. Conclusion.
"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."
"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."
"(g) noise emitted from premises so as to be prejudicial to heath or a nuisance".
"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."
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."
"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."
(1) Fen Tigers Limited
(2) David Mitchell Coventry, Trading as RDC Promotions
(3) Moto-Land UK Limited
(4) Terence Raymond Waters
(5) Anthony Walter Morley
(6) James Edwards Waters
"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;
2. There shall be 12 weekends per year on which the noise levels generated from activities as Mildenhall Stadium and the Motocross track either singly or in combination, as the case may be, may exceed the noise level set out above provided that:
i. The noise level shall not then exceed 55 dB LAeq (15 minutes) 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; and
ii. At least 90 days written notice is given to the Claimants of these weekends; and
iii. There shall be a minimum interval of two weekends between each permitted weekend; and
iv. A weekend for the purposes of this paragraph runs between the hours [of 10:00 and 18:00 on Saturday and Sunday]
3. For the avoidance of doubt the "activities" at Mildenhall Stadium and the Motocross track include but are not limited to Stock Car Racing, Banger Racing, MotoCross and other motorsports and activities associated with or ancillary to these motorsports such as repairing, servicing or preparing vehicles, practising or training and the use of tannoys or other public address or other amplified sound systems."
i) In assessing whether the noise from the Stadium and the Track constituted a nuisance, the judge failed properly to take into account the planning permissions which had been granted. In particular, the judge failed to take into account the fact that the implementation of those planning permissions had changed the character of the locality.
ii) If, contrary to the defendants' contention, the noise constituted a nuisance, the claimants cannot pursue their claim since they moved into an area where nuisance had been present for many years.
iii) If, contrary to the second defendant's contention, the noise from the Stadium constitutes a nuisance, the owners and occupiers of the Stadium have acquired a right by prescription to cause such nuisance.
"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  AC 1001 at 1011.
"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."
"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".
"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."
i) A planning authority by the grant of planning permission cannot authorise the commission of a nuisance.
ii) Nevertheless the grant of planning permission followed by the implementation of such permission may change the character of a locality.
iii) It is a question of fact in every case whether the grant of planning permission followed by steps to implement such permission do have the effect of changing the character of the locality.
iv) If the character of a locality is changed as a consequence of planning permission having been granted and implemented, then:a) the question whether particular activities in that locality constitute a nuisance must be decided against the background of its changed character;b) one consequence may be that otherwise offensive activities in that locality cease to constitute a nuisance.
"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."
"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."
"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."
Lord Justice Lewison:
"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."
"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."
Lord Justice Mummery: