England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Newcastle-upon-Tyne District Registry

		Leeds Combined Court Centre Oxford Row, Leeds
		16 April 2008

The Hon Mr Justice Simon:

Introduction

1. The Claimants bring the present action for nuisance in respect of noise caused by the Defendant's use of its land at the Croft Motor Circuit, at Dalton-on-Tees near Darlington, in County Durham. The Circuit is approximately 300m from the Claimants' homes, in a group of buildings formerly known as Vince Moor East.
2. The Claimants' case in summary is that the Defendant has wrongfully caused or permitted excessive noise of a loud, intrusive and repetitive nature for a period since at least March 2000. The Circuit is operated for about 190-200 days a year. On approximately 140 of these days (referred to as N1-N4 days) there is racing activity which produces high levels of noise. The noise on these days constitutes a nuisance throughout the day at levels which exceed what is reasonable by a considerable margin. In the spring, summer and early autumn months there is, on average, activity of some sort on 2 out of 3 days. The Claimants say that this activity severely limits the enjoyment of their homes. They seek injunctive relief to restrict such nuisance, as well as damages. The injunctive relief does not seek to prohibit the use of the Circuit entirely; but to restrict its use to what is said to be reasonable: namely 40 N1-N4 days and unlimited N5 days in each season (from March to November).
3. The Defendant accepts that there are high levels of noise from the Circuit; but contends that the Claimants have no claim for damages or an injunction. Its case in summary is that the noise from the racing track is what is to be expected in a locality whose nature and character was established by planning permissions for the use of Circuit granted in 1963 and 1998. By a unilateral agreement made under s.106 of the Town and Country Planning Act 1990, which constitutes an enforceable planning obligation, the Defendant has agreed to an elaborate set of monitored restrictions which are to the benefit of all who might otherwise be affected by the unconfined use of the Circuit. This agreement was considered by a Planning Inspector to constitute an appropriate balance between the competing interests of those affected by racing at the Circuit, including the Claimants and the Defendant.

Those involved in the case

4. The First Claimant, Mr Watson, is the owner and occupier of a house at Pond House, Vince Moor East. The Second Claimant, Mrs Watson, is his wife and is also the owner and occupier of Pond House. The Third Claimant, Mrs (Jill) Wilson is the daughter of Mr and Mrs Watson and is the owner and occupier of The Granary, a property adjacent to Pond House. Between 1987 and 1994 she was married to Mr (Jimmy) Wilson.
5. Croft Promosport Ltd (The Defendant) is a company with a leasehold interest in the land occupied by the Circuit. Croft Classic and Historic Motor Sports Ltd ('CCHM') was a company incorporated on April 1994 by Mr Wilson, Mrs (Katherine) Chaytor-Norris and Mr (Trevor) Chaytor-Norris. It was the initial corporate vehicle for the development of the Circuit; and at some stage in 1996 CCHM was awarded the management contract for Croft Circuit by the Defendant. Mr Chaytor-Norris, as well as being a former director of CCHM, is a director and shareholder of the Defendant. His wife, Mrs Chaytor-Norris is the owner of Croft Motor Circuit.

The historical background to the claim.

6. Croft aerodrome was build during the Second World War and was designated a relief airfield in 1951. From 1949 to 1957 it was used intermittently for car race meetings.
7. In July 1962, the North Riding of Yorkshire County Council received a planning application from, Mr Robert Ropner, the owner of the airfield to make a material change of use of the land so as to permit motor trials, motor and motor cycles races and sporting events (including pedal cycle races, athletic meetings, aircraft, helicopters and gliders) to take place. The runways and tracks were at that date derelict and new access was required to be constructed. The application was refused on the grounds of the anticipated noise levels.
8. A second application was made in September 1962. The basis for this application was explained in a covering letter dated 22 September.

Our client then amended his application to provide for not more than four race meetings per annum for formula cars and this had apparently provided the reassurance which the Croft Council required because we understand that they have now approved the Application.

9. Planning permission was refused by the County Council; and there was then an appeal to the Minister. At this point the development was described as:

(I) the holding of motoring events including driving tuition, driving tests and motor trials, also motor and motor cycle races provided that cars not licensed for road use are not included in more than four race meetings a year (II) the holding of sporting events including athletics meetings pedal cycle races and games and sports generally (III) to provide runways and facilities for the taking off and landing of aircraft, helicopters and gliders.

10. The Minister allowed the appeal and granted planning permission in a decision dated 15 August 1963. The permission, which made no reference to the limited basis of the application, allowed the use of the airfield for motor and motor cycle events subject to a number of various conditions which are not material to the present case.
11. Following the grant of permission, the site was used for motor racing on not more than 20 racing days per year up to 1979. There were also some days on which practising for those racing days took place.
12. In June 1979 Mr (William) Chaytor (on behalf of a family trust) bought the airfield and, what had by now become, a racing circuit within its area.
13. In 1981 an application was made and permission granted for

the formation of spoil heaps of concrete and stone from runway and perimeter tracks of disused airfield and return area to agricultural use at disused airfield, Croft.

In the description of the proposed development in the Application Form it was stated that

… the whole area is being returned to Agricultural use – Arable Cropping

14. Between 1982 and 1994, apart from rallycross (the racing of modified production cars on a mixture of sealed and loose surfaces) on a small part of the circuit for less than 10 days a year, and some engine testing during some of the period, there was no motor racing at Croft.
15. In 1989 Mr Wilson's company, JF Wilson (Developments) Ltd, bought Vince Moor East. At the time this was a farm complex consisting of a number of derelict buildings. The company was subsequently granted planning permission to convert the buildings into 3 dwelling houses, which became Pond House, the Old Farm House and the Granary; and in 1990 Mr and Mrs Watson purchased Pond House from the developers for £350,000.
16. In 1994 Mr Trevor Norris (who later changed his name to Chaytor-Norris), with his wife-to-be, Katherine Chaytor and Mr Wilson, incorporated a company, Croft Classic and Historic Motorsport Ltd (CCHM) for the purpose of upgrading and managing operations at the track. An application for planning permission to re-develop the circuit was made on 10 June 1994. On 27 June 1994, a Parish Council meeting was held at which Mr Norris and Mr Wilson presented proposals for development of the Circuit. They told the meeting that rallycross would be reduced and that it was expected there would be about 22 days of racing and 5 practice days per year. This proposed use was backed up by an undated letter from CCHM (dated some time in the summer), in which it offered

to restrict motor car and motor cycle activity on the site with regard to local concern. We are prepared to consider a 25% reduction in the above activity.

The 'above activity' was made up of 11 events over 15 days during the course of 1994.

17. In October 1994 CCHM informed the Local Planning Authority, Richmondshire District Council (RDC) about more extensive plans for the use of the circuit, following a new application for planning permission [1A/151]. The new plans were for 37 race days, 24 exclusive test days and 120 days when the track would be used for other purposes. In March 1995 Mr Wilson applied to develop the land at Vince Moor East as a hotel.
18. In May the first race meeting run by CCHM was held on the resurfaced circuit; and on 7 July 1995 planning permission was granted in respect of the October 1994 application.
19. A number of planning decisions followed, which were challenged. This led to a Public Inquiry, which began in October 1996, continued for 4 days and was then adjourned. Improvement works were carried out over the winter/spring of 1996/7. These works involved changing the configuration of the track and the construction of a control tower and the pit-stops.
20. On 29 January 1998 the Defendant made a further application for planning permission on the basis that it was prepared to enter into an enforceable planning obligation under s.106 of the Town and Country Planning Act so as to set limits to the amount of noise from racing on the Croft Circuit.
21. s.106 provides:

(1) Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to… as 'a planning obligation') enforceable to the extent mentioned in subsection (3) …

(3) Subject to subsection (4) a planning obligation is enforceable by the (planning) authority …

22. The Defendant's second appeal on a further application to vary conditions imposed in the 1995 permission (relating back to the terms of the original application for permission in 1963) was finally heard in September 1998.
23. The Planning Inquiry on the 1998 appeal was heard between 1 and 3 September by the same inspector who had heard the earlier 4 day appeal (in October 1996).
24. On 8 October 1998 the Defendant gave its unilateral undertaking under the provision of s.106 the 1990 Act. This Agreement contained a detailed set of measurement criteria by which noise from the Circuit would be assessed and monitored. It also prescribed the racing activities which could be undertaken, and when quiet and rest days were to be held. The activities were divided into N1 to N5 activities, according to the noise levels which were generated, as follows:

N1 activities (no more than 95dBA over an hour) shall not exceed 10 days a year

N2 activities (no more than 93dBA) shall not exceed 40 days a year.

N3 activities (no more than 85dBA) shall not exceed 70 days a year.

N4 activities (no more than 78dBA) may not exceed 110 days a year.

N1-N4 days therefore may take place on 230 days a year.

N5 activities (no more than 70dBA) are unlimited in number.

In all cases, the noise levels are measured at an identified point adjacent to the track.

25. In a Report dated 26 October 1998 the Inspector decided to allow the Defendant's appeal. The Inspector's Report is relied on by both sides; and it is necessary to quote (extensively but selectively) from various enumerated paragraphs.

[24] … from the evidence before me and from my inspections of the site and the surrounding area I consider that the principal issues in this matter are, first, whether the project would accord with the provisions of the Development Plan and, second the effect of the project on the amenity of local residents by reason of noise and disturbance …

[25] I consider that the Development Plan policies weigh heavily against the project. National guidance that seeks to protect the countryside for its own sake and to encourage sustainable development also weighs against the enterprise. National and local policies rule against recreational development that would cause environmental harm or conflict with other uses …

[30] I am fully satisfied that the noise has at times been of such character, duration and intensity and tone as to seriously harm the amenity to which residents reasonably feel they are entitled … the evidence of local residents should be accorded considerable weight. I conclude that the project would seriously diminish residential amenity in a rural area especially in the summer and at weekends.

Nevertheless, he considered that

[33] … the weight to be given to previous planning permissions is undoubtedly of great significance… [the Defendants] seek to have a series of tighter and more detailed controls imposed upon their enterprise.

He also noted [34],

The reality is that the local residents face a fundamental problem. If this appeal fails, or if I impose more rigorous controls than [CPL] suggest, they say that they will operate under existing permissions. I am asked to accept that to allow the appeal would not cause additional harm to residential amenity.

[35] In the Council's opinion the overall noise climate in the locality emanating from the proposed use of the circuit would not be controlled to an acceptable level.

[36] [The Local Planning Authority] consider the unilateral undertaking by [the Defendant] would not constitute a reasonable compromise in terms of noise experienced by the community, particularly in terms of the number of days at various noise levels.

[37] Bearing in mind the very wide planning use rights which the site now enjoys, I am very firmly convinced that the project would strengthen significantly the ability of the local planning authority to control noise at this long established circuit.

[38] By the s.106 Agreement a series of measures would control the nature and intensity of the use of the site, as well as noise impact on the locality, compared to virtually no controls provided by the existing planning permission ...The Council's concern about noise ... is echoed by local residents who are worried that significantly higher noise levels than occasionally occur now would happen on many days... Without the undertaking, however, there could be racing every day and, what is more significant, little control by the Council over unsilenced vehicles.

26. In forming his conclusions he observed:

[42] Dispute about the use of the site has continued in my personal experience for some years ... It is clear that to continue this uncertainty for its own sake would benefit no one. ... I consider it wrong to withhold a grant of planning permission that would strengthen the local planning authority, benefit the community and reduce the developer's rights, just to keep [the Defendant] in a state of doubt.

27. He concluded:

[43] If this appeal were allowed, objectors would be very upset. If it were dismissed their experiences would be very likely to remain the same; the Council would only have the planning controls that they could have enforced under the existing planning permissions. ... The complaints indicate there has been a serious loss of amenity, which the Council as the local planning authority have not remedied. ... It is clear to me that the project would effectively reduce the almost unrestricted rights which the operators now enjoy to operate the circuit. .. I conclude that the project would achieve a reasonable compromise between amenity, particularly in terms of noise experienced in the local community, and the operation of the racing community ...

[46] I consider no planning purpose would be served if I were to impose by conditions the tighter controls suggested by the Council and [the Objectors] or to demand such clauses in the section 106 unilateral offered by [the Defendant]. They would disclaim the permission and, as they are entitled to, operate the site under their existing planning permissions. ...

28. The Inspector's decision did not end the dispute about the noise generated from the Circuit. Mr Watson, among others, continued to be highly discontented about the noise levels from the Circuit. In this he was supported by Richmondshire District Council which served, but later withdrew, abatement notices. These actions were the subject of a subsequent complaint by Mr Watson to the Local Government Ombudsman which failed.
29. In 2000 Mr and Mrs Watson purchased the Granary from Barclays Bank; and in 2001 they transferred it to Mrs Wilson, who has lived there since then.
30. Since 1998 the activity at the Circuit has ranged between a low 144 days in 2001 (of which 98 days were N1-4) and 207 days in 2000 (of which 147 days were N1-N4), concentrated in the summer months.

Preliminary observations on the evidence

31. In company with the parties and their representatives I viewed the Circuit and the immediate surrounding area, including Pond House and the Granary. I also heard from a number of witnesses: most importantly from Mr Watson, Mrs Wilson and Mr Chaytor-Norris. I also heard from and saw the statements of other witnesses, as well as the reports of two valuation experts, whose evidence I consider later in this judgment.
32. It was clear both from the content of his evidence and the way he expressed himself, that Mr Watson and his family have been deeply affected by the noise from the Circuit for a number of years. He was asked about a passage in his statement in which he referred to people travelling 'inanely' around the Circuit. He said this expressed his view, but that his real objection was not so much to the races which were enjoyed by the many, as the to other noisy activities which were enjoyed only by the relativel few.
33. The Claimants' objections are not to the car and motor-bicycle racing fixtures which amount to about 20 (N1 and N2) events each year (over approximately 45-50 days); but to the noise from the circuit's other activities, in particular Vehicle Testing Days and Track Days (when members of the public drive vehicles at speed all day) at noise levels which reach N2-N4 levels.

The issues

34. The parties helpfully agreed that the following issues arose.

i) What is the nature and character of the neighbourhood relevant for assessing the question of nuisance? In particular, is the effect of the planning permissions and the s.106 Agreement such that the character of the neighbourhood must be determined by reference to the activities undertaken at the Circuit subsequent to those planning permissions and s.106 Agreement? As of what date is it to be said that any change in the nature and character of the area has been effected?

ii) If the Defendant fails to establish that the nature and character of the area must be determined by reference to the planning instruments, then have the Claimants established an unreasonable user of land by the Defendants and hence a nuisance, and if so to what extent?

iii) Did either of the Claimants 'come to the nuisance' and if so does that amount to a defence to their Claims?

iv) To the extent that the Claimants establish a nuisance in the light of the answer to the above, then have the Claimants acquiesced in the infringement of their common law rights such that it would be unconscionable for them to be granted (1) equitable relief in the form of an injunction, and/or (2) a remedy in damages?

v) To the extent that any rights and remedies of the Claimants are not barred by acquiescence, then should the Court's discretion be exercised to grant them an injunction, or should the Claimants be limited to a claim in damages?

vi) If the Claimants are entitled to an injunction, then what should be the terms of the Court's Order?

vii) If nuisance is proved, in the light of the Court's conclusions on injunctive relief, what is the value of (1) the Claimants' claim for diminution in value of Pond House and the Granary attributable to the nuisance; (2) a claim for general damages for past nuisance since March 2000? The answer to these questions involve an assessment of:

a) the un-blighted value of Pond House and the Granary, including what if any reductions to that un-blighted value should be made;

b) the blighted value of each property in consequence of the Defendant's activities at the Circuit;

c) the extent to which the diminution in value of the properties is to be reduced by the activities at the Circuit which do not amount to a nuisance

Issue 1. The nature and character of the neighbourhood; and, in particular, the effect of the planning permissions and the s.106 Agreement.

The parties' submissions in outline

35. For the Claimants Mr Hart QC submitted that the character of the neighbourhood was and remained predominantly rural, but with the use of a former airfield for race events for about 20 race days per year. The essential character cannot be changed by the tortious acts of a defendant, see Dennis v. Ministry of Defence [2003] EWHC 793 (QB), or by the intensification of a particular use, see Wheeler v. Saunders [1996] Ch 19.
36. Planning permission may be relevant to the extent it affects the character of a neighbourhood; but the fact that a planning permission may allow an activity does not provide immunity against suit for nuisance, see for example Wheeler v. Saunders (above) and Hunter v. Canary Wharf [1997] AC 655. In any event, a nuisance may not be the inevitable consequence of the permission.
37. In the present case all that occurred in the relevant period (1963-1996) was an intensification of the use of the Circuit based on the realisation of the width of the 1963 planning permission which, by 1996, became unreasonable.
38. For the Defendant, Mr Wignall submitted that the combined effect of the planning permissions (in particular that the 1998 consent in combination with the s.106 Agreement) was to define the nature and character of the area: the racing activities of the Circuit were permissible and proper so long as they were conducted within the precise and measurable limits set out in the s.106 Agreement, see Gillingham Council v. Medway Dock Co [1993] QB 343. These limits were approved by the Planning Inspector in 1998 after an Inquiry in which evidence was called by both sides.
39. It is contrary to public policy to seek to re-litigate the basis of the 1998 decision. The Claimants' only available remedy is to claim in private nuisance, and only if the noise levels exceed the limits in the s.106 Agreement.

Conclusion on Issue 1

40. Although its application may not always be straightforward, the law which applies to this issue is reasonably well settled; and can be stated shortly in the following two principles.
41. The first principle is that a planning authority (including a Minister and an Inspector) has no jurisdiction to authorise a nuisance, although it may have the power to permit a change in the character of a neighbourhood.
42. This principle was first established in Allen v Gulf Oil Refinery [1980] QB l56, Cumming-Bruce LJ at 174G-H.

… the planning authority has no jurisdiction to authorise nuisance save (if at all) in so far as it has statutory power to permit the character of a neighbourhood in relation to the comfort and convenience of the inhabitants";

43. In Gillingham Council v. Medway Dock Co [1993] QB 343 Buckley J referred to the principle in the following terms at 359:

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 … 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 a 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.

44. The principle was recognised Wheeler v. JJ Saunders Ltd (CA) [1996] Ch 19 by Staughton LJ at 28A-H and 30C-D, by Peter Gibson LJ at 34 G-H (noting the limitations on the rights of an unsuccessful objector at a planning inquiry) and by Sir John May at 38B.
45. In Hunter v. Canary Wharf Ltd [1997] AC 655, Pill LJ (with whom Waite and Neill LJJ agreed) stated at 669A-B,

If … Buckley J was deciding the case on the basis that where planning consent for a development is given and implemented, the question of nuisance will thereafter fall to be decided by reference to a neighbourhood with that development and not as previously, I have no difficulty with it. The changed character of the area may render innocent the nuisance.

46. In the House of Lords, Lord Cooke expressed the principle at [1997] 655 at 722F-G:

… the judge held that, although a planning consent could not authorise a nuisance, it could change the character of the neighbourhood by which the standard of reasonable user fell to be judged. This principle appears to me to be sound.

47. The second principle is that the issue of whether a permissive planning permission has changed the character of the neighbourhood so as to defeat what would otherwise constitute a claim in nuisance, is a question of fact and of degree.
48. In Wheeler v. Saunders (which concerned permission to establish an intensive pig-farm) the Court of Appeal held that the planning decision did not involve considerations of community or public interest. In relation to the facts of the case, Staughton LJ said,

It would in my opinion be a misuse of language to describe what has happened … as a change in the character of the neighbourhood … It is not a strategic planning decision affected by considerations of public interest (Staughton LJ at 30 D-E)

On the subject of the Court's approach to this question Peter Gibson LJ stated at 35G

The Court should be slow to acquiesce in the extinction of private rights without compensation as a result of administrative decisions which cannot be appealed.

49. However, the opinion of Lord Hoffman in Hunter (which, so far as is material to the present case, concerned the interference of television reception by a building development) shows that there is likely to be more than one way of approaching the issue.

The power of the planning authority to grant or refuse permission, subject to such conditions as it thinks fit, provides a mechanism for control of the unrestricted right to build which can be used for the protection of people living in the vicinity of a development. In such a case 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 in 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 (710B-D)

50. It is more likely that a change in the character of a neighbourhood can be identified where there has been a 'strategic' planning decision affected by considerations of public interest, see for example Wheeler v. Saunders (above) and Hunter v Canary Wharf (above), Lord Cooke at 722.
51. Both parties invited me to look at the facts of a number of decided cases with a view to showing that the facts were more or less extreme than the facts of the present case. In my view it is more helpful to look at the facts and circumstances of the present case in the light of the principles which I have sought to identify.
52. The 1963 consent permitted the use of the circuit for the purposes of racing; but neither the consent nor the actual limited use of the Circuit for the permitted purposes changed the essential rural character of the neighbourhood.
53. The 1981 application was to allow for the reversion of the airfield to agricultural use and the application was granted. In fact the permission was not implemented; but the permission did not change the character of neighbourhood, it reinforces the impression of its essentially rural character.
54. I accept that the 1998 decision was robust in the sense that it was based on a full and thorough Inquiry; and the Defendant may be right to say that there could not have been a better forum for a consideration as to what the nature and character of the area should be. However, I do not accept that there was a decision as to the nature and character of the area, which defeats the present claim. It is clear that the Inspector regarded the 1963 planning permission as providing the developer with a very wide consent; and the s.106 Agreement as a protection against what he otherwise described in [43] of the Report as 'the almost unrestricted rights which the operators now enjoy to operate the circuit'. The decision cannot properly be regarded as a strategic decision affected by considerations of public interest. The Inspector considered that some controls were better than none; and it was only to that extent that a public interest arose.
55. The Defendant is correct in saying that the noise from racing has occurred for forty years; but I do not accept that the character of the neighbourhood has been changed. From 1949 to 1994 the character and nature of the locality was essentially rural, but with the use of the former airfield for a limited number (no more than 20) of races each year. It is clear that the circuit could be, and was, run in a way that was consistent with its essentially rural nature. That essential character did not change, despite the gradual development of the Circuit with an intensification of the level of noise.
56. It is clear from the planning process leading up to the 1998 decision that it was the Defendant which was dictating what would and would not take place (including the noise levels) at the Circuit. It seems to me that in such circumstances it is difficult to treat the 1998 decision as 'a far more appropriate form of control, from the point of view of both the developer and the public', to use the phrase of Lord Hoffman.
57. I do not accept the Defendant's contention that it is 'wrong and contrary to public policy for a common law Court to travel over the same ground and to come up with an inconsistent conclusion.' It seems to me that this submission comes close to a contention that the planning permission is determinative of the issue of private nuisance in a case such as this. There may be sound arguments in favour of such a contention; but it does not represent the present state of the law. What is essentially an administrative decision does not extinguish private rights without compensation.

Issue 2: whether the Claimants have established an unreasonable user of land by the Defendants and hence a nuisance, and if so to what extent?

The parties' submissions in outline

58. The Claimants submit that a nuisance has been caused and that the extent of the nuisance is the 141 days (the average from 2002 to 2007) of activity where the noise fell into the category N1-N4, less such days as should be reasonably tolerated.
59. The Defendant accepts that, but for s.106 Agreement, a nuisance would be created by the Defendant's activities at the Circuit. However, it invites the Court to consider the respects in which it has acted as a considerate neighbour: for example, its attempts to reduce the noise by landscaping and moving the course of the track away from the Claimants.

Conclusion on Issue 2

60. The defence of reasonable user was described by Lord Goff in Cambridge Water v. Eastern Counties Leather [1994] 2 AC 264 at 299D-F:

… although liability for nuisance has generally been regarded as strict, at least in the case of a defendant who has been responsible for the creation of a nuisance, even so that liability has been kept under control by the principle of reasonable user - the principle of give and take as between neighbouring occupiers of land, under which 'those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action:' see Bamford v. Turnley (1862) 3 B. & S. 62, 83, per Bramwell B. The effect is that, if the user is reasonable, the defendant will not be liable for consequent harm to his neighbour's enjoyment of his land; but if the user is not reasonable, the defendant will be liable, even though he may have exercised reasonable care and skill to avoid it.

61. In the light of the evidence I have heard as to the intensity, the frequency and duration of the noise (as well as the Defendant's realistic concession) I am clear that the Defendant cannot establish the defence of reasonable user.
62. Two essentially unchallenged passages from the 1st and 3rd Claimant's witness statements illustrate the point.

… each time that either an N1, N2, N3, N4 and, at times and N5 event, is carried on at the circuit we are unable to use our home to the extent that we cannot sit out in our garden while the circuit is in use. We have to remain indoors and keep windows closed [Mr Watson's 1st witness statement at §24]

In essence the noise caused by activities at the Croft Circuit is severe, intense and very stressful. It is not just the level or volume of noise which is significant but that it carries on throughout the whole day (except for a short break at lunchtime) and that this occurs on most days during the spring, summer and autumn months, including Sundays. [Jill Wilson's witness statement at §6]

63. The noise at the Claimants' properties coming from the track during the N1-N4 events is repetitive, continuous and intrusive. In 1998 the Inspector reported at §30,

I am fully satisfied that the noise has at times been of such character, duration and intensity and tone as to seriously harm the amenity to which residents reasonably feel they are entitled …

So far as the Claimants are concerned this is still true.

64. The next matter to be considered is the number of days of N1-N4 days which would constitute a reasonable use. The Claimants contend that a fair balance between the Defendant's reasonable use of the Circuit for its core activities and the excessive noise caused to the Claimants would be 20 N1-N4 days. In his 2^nd Witness Statement at §3, Mr Watson pointed out that out of the 189 activity days from February to October 2007 there were only 33 days when spectators attended.
65. The Claimants case is that the N1-N4 noise from the circuit should be confined to 20 days which represents the threshold of the nuisance; and that 40 days would be acceptable upon the payment of compensation for the difference between 20-40 days. This would accommodate what they describe as 'the core' activities of the circuit
66. It seems to me that, even adopting the Claimants' approach, the threshold for which they contend is too low. In striking a proper balance between the respective legitimate interests of the parties, in the light of the past and present circumstances, it seems to me that it is appropriate to take a threshold figure of 40 N1-N4 days.

Issue 3: Did either of the Claimants 'come to the nuisance' and if so does that amount to a defence to their Claims?

The parties' submissions

67. The Defendant submits that it had operated the Circuit under the broad 1963 planning consent for a number of years before Mr and Mrs Watson bought Pond House in 1990; and before Mrs Wilson moved to The Granary in 2000. In these circumstances it submits that they came to the nuisance and should not be heard to complain about a feature of the neighbourhood of which they must or should have been aware. Mr Wignall submits that the law should now recognise this common sense approach.
68. For the Claimants, Mr Hart QC submits that the law is now well established: coming to a nuisance is no defence, see Miller v. Jackson [1977] 1 QB 966; and that, in any event, the Claimants did not acquire their interests in the properties with a knowledge of the nuisance.

Conclusion on Issue 3

69. In Sturges v. Bridgman (1879) 11Ch D 852 the defence of 'coming to the nuisance' was rejected by the Court of Appeal. The decision was followed in Miller v. Jackson (above). In the latter case, at p.987B, Geoffrey Lane LJ acknowledged that the rule may work injustice and that, in the absence of authority, the matter might have been decided differently. I agree that the rule may work injustice (although not in the present case); but, short of the House of Lords, the law is clear and binding on me.
70. The reason why it works no injustice in the present case is that the Defendant cannot show that that the Claimants came to the nuisance with full knowledge of it. The evidence of Mr Watson is that, when he moved in, he was aware of a disused racing track close by which was used infrequently for rallycross events. He was unaware of the 1963 permission and, in any event, the rallycross events did not disturb him. Mrs Wilson's position is slightly more complicated. She had moved into the Old Farmhouse in 1989-1990 and it was due to the break-up of her marriage that she was away from the area in the 12 months before November 1997. On this basis it is acknowledged on her behalf that she 'came to the nuisance.' However it seems to me that there is a considerable difference between the position of someone who acquires property in the full knowledge of a nuisance (with the consequent reduction in value) and the position of Mrs Wilson whose options were limited, due to her adverse domestic circumstances. However, as is clear, the law does not presently draw any such distinction; and this Defence must fail.

Issue 4: Have the Claimants acquiesced in the infringement of their common law rights such that it would be unconscionable for them to be granted (1) equitable relief in the form of an injunction, and/or (2) a remedy in damages?

The parties' submissions

71. The Claimants draw attention to the broad way in which the acquiescence argument is pleaded; and the confined way in which it was argued following the evidence. In §11.1 of the Defence it is contended that,

… the First Claimant had led CCHM and the Defendant …to believe that [he] was in favour of an intensification of motor racing activities at the circuit… the First Claimant also made his plans to profit from the Circuit by the hotel application.

72. In its closing submission the Defendant contended that the Defendant has spent approximately £1.75m in developing the circuit and had used the track for racing since 1995. By at least 1998 it was, or should have been, clear to Mr Watson that there could be no alternative to litigation. Instead of bringing proceedings in private nuisance promptly he waited until March 2006. During the intervening period Mr Watson had done nothing significant to enforce his rights and Mrs Wilson did nothing at all. The Claimants had therefore acquiesced in the nuisance; and it would be 'dishonest and unconscionable' for them to seek to enforce their rights, see Gafford v. Graham and Grandco Securities Ltd (CA) (1988) 77 P & C R 73. Mr Wignall further submitted that it is not necessary for a defendant to show that it has suffered a detriment where a defence of acquiescence is relied on, see Harris v. Williams-Wynne [2006] EWCA Civ 104.
73. The Claimants' response was that the Claimants had acted reasonably in not bringing proceedings before March 2006 and that, in any case, it was neither dishonest nor unconscionable for them to enforce their rights. Mr Watson's evidence was that he aware from Mr Wilson of a proposal for development to allow racing by classic and historic cars, as to which he was neutral. So far as the development of a hotel was concerned, his hope was to recover £250,000 which Mr Wilson owed him.

Conclusion

74. Acquiescence is an equitable doctrine under which equitable relief (whether by way of injunction or equitable damages) will be barred on the ground that there has been delay coupled with matters which, in all the circumstances, makes it unconscionable for a party to continue to seek to enforce rights which he had at the date of the complaint, see Gafford v. Graham (above) at p.80-81. If detriment is present it will usually lead the court to conclude that it would be unconscionable for the claimant to seek to enforce those rights, see Harris v. Williams-Wynne (above) at [39],

But absent detriment the court needs to find some other factor which makes it unconscionable for the party having the benefit of the rights to change his mind.

75. In view of the nature of this equitable defence it is unsurprising to find that reported decisions are fact-specific.
76. The evidence about the relationship between the Watsons on the one hand and Mr Chaytor-Norris on the other hand was clear: from about 1995 there was little communication on a personal level. Each side's position had become entrenched. Mr Watson was content to allow some development of the track to allow racing by classic and historic cars; but was strongly opposed to the development which CCHM and the Defendant had in mind. The matter was complicated by the separation and divorce of Mr Watson's daughter (Mrs Wilson) and his son-in-law, which was fraught with financial and personal complication.
77. In his evidence Mr Watson described the position in terms which I accept,

We sought to pursue our complaints through the Parish Council. We did all we could in the light of the circumstances at the time. I find it hard to be criticised for being so tenacious in using the Council route. I can't really see that a direct letter to the Circuit would have been any better. In any event, I am sure that Circuit would have received copies of our letters and complaints

78. After the 1998 Inquiry and Report, Mr Watson continued his complaints to the Council, and made a complaint to the Ombudsman; and, in February 2000, an abatement notice was issued. Proceedings for private nuisance were threatened by letter before action in September 2002, and there was some further subsequent correspondence. There was however a significant lack of activity between March 2003 and February 2005.
79. The factual difficulty for the Defendants is that up until 1996 the Circuit was either preparing or conducting the 'core' racing activities to which Mr Watson did not object. From about 1994 Mr Watson focussed his complaints through the Action Group, from that point on he was well-known as an objector to the development of the Circuit beyond its core activity. The correspondence shows that he was pressing the Council to serve abatement notices in relation to what he considered to be statutory nuisance.
80. While the lack of activity in most of 2003-4 lays a factual framework for the acquiescence defence, it is important to bear in mind that the Claimants do not seek to prevent the core-racing activities of the Circuit; and that such expenditure as the Defendant has incurred during the periods of nuisance was incurred largely so as to enable racing to take place.
81. In the light of the above I have concluded that there has been neither conduct nor inactivity by the Claimants such that it would be 'unconscionable' for them to continue to seek to enforce their rights; and that the Defendant has not made out a defence of acquiescence so as to defeat the Claimants' equitable claims. I note that the Claimants also have continuing rights at common law; although I would not have been persuaded that the existence of those rights favours 'the equitable solution … to capitalise such claims … into one award of damages ...', as Mr Hart submitted.

Issue 5 and 6 what order should the Court make?

82. It is convenient to take Issues 5 and 6 together when considering the order which should be made.

The parties' submissions

83. The Claimants accept that the Court has a discretion as to whether to grant an injunction; but submit that a party in their position should not be deprived of its right to an injunction except in very exceptional circumstances, see Shelfer v. City of London Electric Lighting Co [1985] 1 Ch 287. There are, submits Mr Hart, no exceptional circumstances as identified in the Shelfer case such as to deprive the Claimants of an injunction in the terms which they seek
84. For the Defendants, Mr Wignall submits that there is no basis on which the Court could properly grant an injunction. There is no good reason why, for example, the Court should draw the line at 20 N1-N4 days (as the Claimants claim) rather than any other figure. There is no reason why the limits should not be determined by the s.106 Agreement which was recognised by the Inspector as striking a balance between the respective interests.

Conclusions

85. In Regan v. Paul Properties Ltd (CA) [2007] Ch 135 at §§34-59 Mummery LJ considered the power to award damages under s.50 of the Supreme Court Act 1981 (formerly Lord Cairns's Act 1858) in substitution for an injunction against the continuance of a wrongful act; and, in particular, the case of Shelfer v. City of London Electric Lighting Co (CA) [1895] 1 Ch 287.

35. Shelfer is the best known case. It is a decision of the Court of Appeal. It has never been overruled and it is binding on this court. The cause of action was nuisance, as in this case, though in the form of noise and vibration rather than interference with a right of light.

36. Shelfer has, for over a century, been the leading case on the power of the court to award damages instead of an injunction. It is authority for the following propositions which I derive from the judgments of Lord Halsbury and Lindley and AL Smith LJJ:

(1) A claimant is prima facie entitled to an injunction against a person committing a wrongful act, such as continuing nuisance, which invades the claimant's legal right.

(2) The wrongdoer is not entitled to ask the court to sanction his wrongdoing by purchasing the claimant's rights on payment of damages assessed by the court.

(3) The court has jurisdiction to award damages instead of an injunction, even in cases of a continuing nuisance; but the jurisdiction does not mean that the court is "a tribunal for legalising wrongful acts" by a defendant, who is able and willing to pay damages: per Lindley LJ at pages 315 and 316.

(4) The judicial discretion to award damages in lieu should pay attention to well settled principles and should not be exercised to deprive a claimant of his prima facie right "except under very exceptional circumstances." (per Lindley LJ at p 315 and 316).

(5) Although it is not possible to specify all the circumstances relevant to the exercise of the discretion or to lay down rules for its exercise, the judgments indicated that it was relevant to consider the following factors: whether the injury to the claimant's legal rights was small; whether the injury could be estimated in money; whether it could be adequately compensated by a small money payment; whether it would be oppressive to the defendant to grant an injunction; whether the claimant had shown that he only wanted money; whether the conduct of the claimant rendered it unjust to give him more than pecuniary relief; and whether there were any other circumstances which justified the refusal of an injunction: see AL Smith LJ at pages 322 and 323 and Lindley LJ at page 317.

37. In my judgment, none of the above propositions has been overruled by later decisions of any higher court or of this court.

86. On the face of it this passage provides clear guidance on the limited circumstances in which the Court can grant damages in lieu of an injunction. There may be good reasons in modern times why the Court should adopt an approach which more readily puts a financial value on a claim rather than granting prohibitory injunctions; but that is not the present state of the law. However, the guidance in the Shelfer case is not a forensic straight-jacket for what is ultimately a matter of judgment and discretion in the particular circumstances of the case. In Jaggard v. Sawyer (CA) [1995] 1 WLR 262 at 278B Sir Thomas Bingham MR described the propositions set out in the judgment of AL Smith LJ as 'a good working rule'; and Millet LJ, having cited the judgments in Shelfer, stated at p.286D,

Laid down just one hundred years ago, AL Smith LJ's checklist has stood the test of time; but it needs to be remembered that it is only a working rule and does not purport to be an exhaustive statement of the circumstances in which damages may be awarded instead of an injunction.

At 288A he added,

Reported cases are merely illustrations of circumstances in which particular judges have exercised their discretion, in some cases by granting an injunction, and in others by awarding damages instead. Since they are all cases on the exercise of a discretion, none of them is binding authority on how the discretion should be exercised

87. I am firmly of the view that this is not an appropriate case for granting an injunction. First, although falling short of giving rise to a defence of acquiescence, there has been considerable delay in bringing these proceedings. Secondly, the Claimants have shown that they are prepared to be compensated for noise on N1-N4 days on more than 20 days, up to 40 days. Whilst a willingness to compromise should not count against a party, it seems to me that a willingness to accept compensation instead of an injunction constitutes a matter which counts against granting an injunction. Put in conventional terms, it demonstrates that the Claimant can be compensated by the award of damages. For these reasons I decline to grant an injunction.
88. There is one further matter which in my judgment can properly be taken into account without disregarding the approach set out in the Shelfer case. The Circuit is a well-run business providing both employment locally and an opportunity for those who wish to race cars at speed, legally and in relative safety. The racing of cars at speed is plainly enjoyed by some people; and I suspect that part of the enjoyment comes from the loudness of the noise which comes from the racing, just as the loudness of music at outdoor venues may be the source of enjoyment for others. Although it was not investigated at trial, it is clear that there are a limited number of places where the range of activities carried out at the Circuit can take place. It seems to me that this is a legitimate matter to be taken into account when balancing the interests of the parties to this private dispute. However, as I have indicated, I have come to the conclusion that an injunction is not an appropriate remedy without taking these matters into account.

Issue 7: Damages

89. The claim for damages is put on the basis of losses over the past 6 years and the loss in capital value to the Claimants' properties or 'blight'.
90. Seven issues were investigated in the course of the trial: (1) the un-blighted value of Pond House as at 2008; (2) the un-blighted value of the Granary as at 2008; (3) Deductions which should be properly made from such un-blighted values to take into account (a) a Permissive Right of Way which affects the properties, and (b) a Boundary Dispute in relation to Pond House; (4) the blighted value of Pond House as at 2008; (4) the blighted value of the Granary at 2008; (5) an assessment of the blighted value of Pond House if the N1-N4 days were reduced to 20 days; (6) damages for past nuisance.
91. The witnesses called were Mr Mark Bird of Knight Frank LLP (for the Claimants) and Mr Christopher Orme, lately of Strutt & Parker (for the Defendant). Both were well qualified to express expert opinion on the valuations. Mr Bird was less experienced; but his research and analysis had greater depth. For reasons which I will come to later, I have concluded that the proper approach to the calculation of damages involves a rather broader approach than that advanced by the experts.

(1) The un-blighted value of Pond House as at 2008

92. In Mr Bird's view the un-blighted value of Pond House was £775,000; in Mr Orme's opinion it was £650,000. Whereas one might have expected a difference in views on the blighted value the difference in opinion as the un-blighted value is stark. Mr Bird's approach was to assess value by reference to a list of comparable properties. It seemed to me that this was a justifiable approach; although I accept the point made by the Defendant that the closest comparable property by value (Bridge House, a Grade II listed Georgian Village House, sold for £775,000) would be likely to have a greater value than Pond House. In Mr Orme's view Pond House was a 'a clever conversion' with 'a pleasing outcome'. Having seen the house I agree with this description. In Mr Orme's view, it was a barn conversion rather than a classic house. In the light of this he had valued the house at £575,000 in his report of October 2006 and increased this to £650,000 in the light of Mr Bird's comparables.
93. In my view Mr Orme's revised figure is still too low; and Mr Bird's view slightly too high. In my judgment the Court should approach the calculation of damages on the basis that the un-blighted value, taking into account the points made by the experts in relation to comparable properties, the floor space and the particular features of the property, is £735,000.

(2) The un-blighted value of the Granary as at 2008.

94. No issue arises on the un-blighted value of the Granary since the experts agreed a figure of £400,000.

(3)(a) The deduction which should be properly made from such un-blighted values to take into account the Permissive Right of Way which affects the properties.

95. In Mr Orme's view the issue as to the existence of the Permissive Right of Way was a factor which significantly reduced the value of these properties: by £40,000 in the case of Pond House and by £10,000 in the case of the Granary. In Mr Bird's opinion the Permissive Right of Way issue has no effect on the values. His evidence was that Rights of Way issues may affect the value of properties either where privacy is an issue or in cases of properties with a high value; but not in the present case.
96. In my view no deduction should be made in relation to the Granary since the Permissive Right of Way does not significantly impact on the value of the property. So far as Pond House is concerned, I have concluded that Mr Orme's deduction is too high. It is to be noted that his deduction to take into account the noise from the racetrack is £56,000. In these circumstances his deduction of £40,000 to take into account a right of way which is largely along a farm track beside the house is difficult to justify.
97. In my judgment the better approach in calculating damages is to view this issue together with the next issue as amounting to a matter which has a modest overall effect on the value.

3(b) The deduction which should be properly made from such un-blighted values to take into account a Boundary Dispute in relation to Pond House

98. This issue relates to a Boundary Dispute with the surrounding Croft Estate. It relates to the positioning of a fence close to Pond House and the adjacent track which passes by the side of the house. The Croft Estate maintains that the fence encroaches on its property and that the right of way is, and the track should be, very close to the window of Pond House. In June 2000 the Croft Estate agreed to settle this dispute with Mr Watson for the payment of £10,000 plus costs. That offer has since been withdrawn.
99. I have little doubt that this neighbour dispute could and should have been easily settled years ago with goodwill on each side; and the lack of goodwill is the result of each side regarding the other side's approach to the wider issue of noise from the track as being unreasonable. In my view Mr Orme's opinion that a further deduction of £50,000 from the value of Pond House is unjustified; not least because it again represents such a significant reduction in value when compared to what he is prepared to concede in relation to the noise.
100. Nevertheless a purchaser would be likely to raise the uncertainty in relation to the boundary dispute and the issue over the Right of Way; and the seller would be likely to concede something on the price. Although Mr Bird said that he had taken 'the privacy issues' into account when assessing his un-blighted value for Pond House, I have concluded that these points affect the value of Pond House by reducing its overall un-blighted value by £15,000: in other words to a value of £720,000.

(4) The blighted value of Pond House as at 2008

101. In Mr Bird's opinion the level of diminution in value due to the blighting by the Motor Racing Circuit is 20%. His view was based on evidence from the sale of the Old Farm House in May 2001; and discussions with a representative of the District Valuer's Office and colleagues whose views appeared to be that properties significantly affected by noise commonly resulted in reductions in value of 15-20%.
102. Mr Orme had also spoken to the District Valuer and had considered comparable properties affected by noise. As a result he had concluded that the effect of the blight was no more than 10%.
103. The District Valuer's experience in dealing with Part 1 claims under the Land Compensation Act 1973 would be more helpful if the experts had been able to agree on what they had been told by the District Valuer. It seems to me that the noise from the Circuit during the times and at the levels previously identified is not the most significant blight that may be encountered. It is not continuous (as, for example, from a motorway) and it is not as intense (as, for example) as produced at houses close to runways. In these circumstances, I have concluded that the appropriate deduction would be 15%.

(5) The blighted value for the Granary

104. Mr Bird considers that the appropriate deduction is 13%. In Mr Orme's view it is, again, no more than 10%. Taking into account my views expressed in (4) above and the fact that the Granary does not overlook or face the track; and that the impact of noise is therefore less, I have concluded that the appropriate deduction is10%.

(6) An assessment of the blighted value of Pond House if the N1-N4 days were reduced to 20 days

105. Mr Bird considered that this would have a negligible effect on the value of the properties (£10,000 and £5,000 respectively); and that a small percentage reduction of 1.3% and 1.25% was reasonable and appropriate. These figures were not challenged in cross-examination.

Conclusion on the net diminution due to the nuisance

106. In my judgment the proper balance to be drawn between the Defendant's right to use the circuit for N1-N4 events and the Claimants' rights to enjoy their land is 40 days of N1-N4 events. The Claimants concede that 20 days is appropriate; but in my judgment this is too few. No calculation has been carried out by the experts on this basis. I propose to make the following adjustments:

i) 2% in the case of Pond House: this takes into account Mr Bird's figure and the fact that the activity is, on this basis, not an actionable nuisance.

ii) 1.5% in the case of the Granary, on a similar basis.

107. It follows that this damage is to be calculated as follows:

Pond House un-blighted £720,000

Blighted value (ie less approx 15%) £108,000

Less 2% (£14,400) £93,600

Granary un-blighted £400,000

Blighted value (ie less 10%) £40,000

Less 1.5% (£6,000) £34,000

(7) Damages for past nuisance.

108. The Claimants also claim general damages for past loss representing loss of amenity to Pond House and the Granary in respect of the circuit in so far as it exceeds 20N1-N4 days from 16 March 2000. The Claimants advance a claim of £10,000 per annum in respect of Pond House and £5,500 per annum in respect of The Granary over a period of 8 years.
109. The Defendant submits that an appropriate award of damages would be the equivalent of a modest holiday, see Anthony v. Coal Authority [2006] Env LR 17 at §§114-117 and 163

Conclusion on damages for past nuisance

110. It is clear that an award representing loss of amenity arising from noise nuisance is an appropriate head of damages, see Dennis v. Ministry of Defence [2003] EWHC 973 (QB) at §§84-89, where Buckley J considered that a figure of £50,000 to cover a period of over 10 years did justice to a serious loss of amenity. The nuisance in the present case is less serious in the Dennis case; and I propose to make an award which is equates to an annual award of £2,000 in the case of Mr and Mrs Watson and £750 in the case of Mrs Wilson.

Summary

111. Subject to any detailed argument on the sums awarded, there will be judgment

i) for Mr and Mrs Watson in the sum of £93,600 and (£2,000 for 8 years) £16,000: total, £109,600; and

ii) for Mrs Wilson in the sum of £34,000 and (£750 for 8 years) £6,000: total, £40,000.