UKSC 13
On appeal from:  EWCA Civ 26
Coventry and others (Respondents) v Lawrence and another (Appellants)
Lord Neuberger, President
JUDGMENT GIVEN ON
26 February 2014
Heard on 12, 13 and 14 November 2013
Stephen Hockman QC
(Instructed by Richard Buxton Environmental and Public Law)
Robert McCracken QC
(Instructed by Pooley Bendall Watson)
The issues raised by this appeal
• The extent, if any, to which it is open to a defendant to contend that he has established a prescriptive right to commit what would otherwise be a nuisance by means of noise;
• The extent, if any, to which a defendant to a nuisance claim can rely on the fact that the claimant "came to the nuisance";
• The extent, if any, to which it is open to a defendant to a nuisance claim to invoke the actual use of his premises, complained of by the claimant, when assessing the character of the locality;
• The extent, if any, to which the grant of planning permission for a particular use can affect the question of whether that use is a nuisance or any other use in the locality can be taken into account when considering the character of the locality;
• The approach to be adopted by a court when deciding whether to grant an injunction to restrain a nuisance being committed, or whether to award damages instead, and the relevance of planning permission to that issue
A summary of the substantive facts
The judgments below
Acquiring a right to commit what would otherwise be a nuisance by noise
"Coming to the nuisance"
Reliance on the defendant's own activities in defending a nuisance claim
"[A]nything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop"
The effect of planning permission on an allegation of nuisance
"The common law of nuisance has co-existed with statutory controls, albeit less sophisticated, since the 19th century There is no principle that the common law should 'march with' a statutory scheme covering similar subject matter Short of express or implied statutory authority to commit a nuisance…, there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights"
The award of damages instead of an injunction
"[E]ver since Lord Cairns' Act was passed the Court of Chancery has repudiated the notion that the legislature intended to turn that court into a tribunal for legalising wrongful acts;or in other words, the court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict Neither has the circumstance that the wrongdoer is in some sense a public benefactor (eg, a gas or water company or a sewer authority) ever been considered a sufficient reason for refusing to protect by injunction an individual whose rights are being persistently infringed"
"[A] person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the court to sanction his doing so by purchasing his neighbour's rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be In such cases the well known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff's legal right has been invaded, and he is prima facie entitled to an injunction
There are, however, cases in which this rule may be relaxed, and in which damages may be awarded in substitution … In my opinion, it may be stated as a good working rule that - (1) If the injury to the plaintiff's legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction - then damages in substitution for an injunction may be given"
"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 a binding authority on how the discretion should be exercised The most that any of them can demonstrate is that in similar circumstances it would not be wrong to exercise the discretion in the same way But it does not follow that it would be wrong to exercise it differently"
"In some cases, of course, an injunction is necessary - if, for instance, the injury cannot fairly be compensated by money - if the defendant has acted in a high-handed manner - if he has endeavoured to steal a march upon the plaintiff or to evade the jurisdiction of the Court In all these cases an injunction is necessary, in order to do justice to the plaintiff and as a warning to others But if there is really a question as to whether the obstruction is legal or not, and if the defendant has acted fairly and not in an unneighbourly spirit, I am disposed to think that the Court ought to incline to damages rather than to an injunction It is quite true that a man ought not to be compelled to part with his property against his will, or to have the value of his property diminished, without an Act of Parliament On the other hand, the Court ought to be very careful not to allow an action for the protection of ancient lights to be used as a means of extorting money"
"The defendants had committed a breach of covenant, the effects of which continued The judge was not willing to order the defendants to undo the continuing effects of that breach He had therefore to assess the damages necessary to compensate the plaintiffs for this continuing invasion of their right He paid attention to the profits earned by the defendants, as it seems to me, not in order to strip the defendants of their unjust gains, but because of the obvious relationship between the profits earned by the defendants and the sum which the defendants would reasonably have been willing to pay to secure release from the covenant"
"In my view there is no reason why compensatory damages for future trespasses and continuing breaches of covenant should not reflect the value of the rights which she has lost, or why such damages should not be measured by the amount which she could reasonably have expected to receive for their release"
The resolution of this appeal
"The competing arguments in the present case, and the difference in the views of the members of this court, reflect a controversy which has persisted since the dispute between Sir Edward Coke and Lord Ellesmere LC Sir Edward Coke resented the existence of an equitable jurisdiction which deprived the defendant of what he regarded as a fundamental freedom to elect whether to carry out his promise or to pay damages for the breach Modern economic theory supports Sir Edward Coke;an award of damages reflects normal commercial expectations and ensures a more efficient allocation of scarce economic resources The defendant will break his contract only if it pays him to do so after taking the payment of damages into account;the plaintiff will be fully compensated in damages;and both parties will be free to allocate their resources elsewhere Against this there is the repugnance felt by those who share the view of Fuller CJ in Union Pacific Railway Co v Chicago, Rock Island and Pacific Railway Co (1896) 163 US 564, 600 that it is an intolerable travesty of justice that a party should be allowed to break his contract at pleasure by electing to pay damages for the breach English law has adopted a pragmatic approach in resolving this dispute The leading principle is usually said to be that equitable relief is not available where damages are an adequate remedy In my view, it would be more accurate to say that equitable relief will be granted where it is appropriate and not otherwise;and that where damages are an adequate remedy it is inappropriate to grant equitable relief"
i) Prescriptive right
ii) "Coming to the nuisance"
iii) The defendant's activity as part of the "character of the area"
iv) Relevance of planning permission
"Reasonableness is a relevant consideration here, but the question is neither what is reasonable in the eyes of the defendant or even the claimant (for one cannot by being unduly sensitive, constrain one's neighbour's freedoms), but what objectively a normal person would find it reasonable to have to put up with" (Weir An Introduction to Tort Law, 2nd ed (2006), p 160)
"The character of the locality"
"…the lineaments of the law of nuisance were established before the age of television and radio, motor transport and aviation, town and country planning, a 'crowded island', and a heightened public consciousness of the need to protect the environment All these are now among the factors falling to be taken into account in evolving the law…" (p 711 D-E)
Lord Hoffmann, in the majority, also commented on the significance of the introduction of modern planning control, which he saw as an argument against further extending the law of 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 …" (p 710B-D)
Relevance of the defendant's activity
"… who may well like peace and quiet but will not complain, for instance, of the noise of traffic if he chooses to live on a main street in an urban centre, nor of the reasonable noises of industry, if he chooses to live alongside a factory" (p 692)
Thus the defendant's activities, at their previous level, were accepted as part of the established pattern of uses in the area, also reflected in the development plan zoning (p 688), and thus as the starting point for consideration of the alleged nuisance
"It is not realistic to look for a single, across the board response to the complicated relationship between tort and regulation, or even just nuisance and planning permission… Courts are not generally in a position to assess the substantive quality of regulation…" (Nuisance and Regulation in the Court of Appeal  JPEL 277, 284)
She suggests that an examination of the process followed by the regulation could help the court to determine how much authority the external assessment of the public interest should have, but that no single process issue could be decisive (p 284)
Gillingham Docks and subsequent cases
"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" (p 359)
"It would be a task for which a court would be ill equipped, involving as it would the need to consider the interests of the locality as a whole and the plaintiff's and county council's plans in respect of it In some cases even the national interest would have to be considered These are matters to be decided by the planning authority and, if necessary, the minister and should be subject only to judicial review" (pp 360-361)
"Prior to the Gillingham case the general assumption appears to have been that private rights to claim in nuisance were unaffected by the permissive grant of planning permission, the developer going ahead with the development at his own risk if his activities were to cause a nuisance The Gillingham case, if rightly decided, calls that assumption into question, at any rate in cases, like Gillingham itself, of a major development altering the character of a neighbourhood with wide consequential effects such as required a balancing of competing public and private interests before permission was granted I can well see that in such a case the public interest must be allowed to prevail and that it would be inappropriate to grant an injunction (though whether that should preclude any award of damages in lieu is a question which may need further consideration) But I am not prepared to accept that the principle applied in the Gillingham case must be taken to apply to every planning decision 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 and are difficult to challenge" (p 35)
"The Canary Wharf project in general, and the tower at One Canada Square in particular, were obviously of a scale totally transforming the environment… In these circumstances, to adopt the words of Staughton LJ in Wheeler v J J Saunders Ltd, at p 30, the tower falls fairly within the scope of 'a strategic planning decision affected by considerations of public interest'" (p 722E)
"… 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 and to apply to the present case as far at least as television reception is concerned Although it did interfere with television reception the Canary Wharf Tower must, I think, be accepted as a reasonable development in all the circumstances" (p 722F-G)
Relevance of planning history
i) It may provide evidence of the relative importance, in so far as it is relevant, of the permitted activity as part of the pattern of uses in the area;
ii) Where a relevant planning permission (or a related section 106 agreement) includes a detailed, and carefully considered, framework of conditions governing the acceptable limits of a noise use, they may provide a useful starting point or benchmark for the court's consideration of the same issues
(i) Relative importance
The judgment of the Court of Appeal
"(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" (para 65)
"71 The judge, at para 158, identified the following question as an important issue in the case:
'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'
72 The judge did not immediately state his answer to that question It is clear, however, from the later passages, as Mr Peter Harrison for the claimants concedes, that the judge's answer to that question is 'no' In my view, that is the wrong answer Throughout the period when the claimants were living at Fenland the noise generated from time to time by motor sports was 'one of the noise characteristics of the locality'
73 The judge, at para 203, stated his conclusion as follows:
'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'
74 In my view that conclusion is flawed The noise of motor sports emanating from the track and the stadium are an established part of the character of the locality They cannot be left out of account when considering whether the matters of which the claimants complain constitute a nuisance
75 I quite accept that if the second and third defendants had ignored the breach of condition notices and had conducted their business at noise levels above those permitted by the planning permissions, the claimants might have been able to make out a case in nuisance It appears, however, that this was not the case Abatement works were carried out in 2008 to the satisfaction of Forest Heath District Council No breach of condition notices have been served since then, apart from one which did not relate to noise level"
"The fact that something should go ahead in the public interest does not tell us where the costs should lie;we need not assume that injured parties should bear the burden associated with broader social benefits… The continued strength of private nuisance in a regulatory state probably depends on a more flexible approach to remedies…" (Tort Law and Regulation: Planning and Nuisance (2011) 8 JPL 986, 989-990)
"To the extent that this is an appeal to set the public interest ahead of the private interests of the plaintiffs, then I regret that authority requires me to close my ears to it"
So also in Ireland, in the leading case of Bellew v Cement Ltd  Ir R 61, the majority adopted a strict Shelfer approach Maguire CJ said:
"I am of the opinion that the court is not entitled to take the public convenience into consideration when dealing with the rights of private parties This matter is a dispute between private parties, and I think that the court should be concerned, only, to see that the rights of the parties are safeguarded" (p 64)
"An injunction will not be granted where, having regard to all the circumstances, to grant it would be unjust;and the disparity between the advantage to the plaintiff to be gained by the granting of that remedy and the inconvenience and disadvantage which the defendant and others would suffer in consequence thereof may be a sufficient ground for refusing it" (para 252)
Similarly, in Bottom v Ontario Leaf Tobacco Co  2 DLR 699, in refusing an injunction to close a factory, the court gave weight to the fact that closure would cause unemployment which would be disastrous to a small community Riddell JA said (para 3):
"The public good can never be absent from the mind of the Court when dealing with a matter of discretion"