A nuisance is an action carried out by one landowner that unduly interferes with another landowner’s use of its land. It can include noise, smell, physical encroachment and obstruction of rights of light. Property developers often find themselves on the wrong side of claims for nuisance, simply because of the nature of construction activities.
The remedies for nuisance include injunctions, which can be extremely harsh on the developer. For example, in a recent high profile case a Court ordered the developer to take down an entire floor of an office block, because it interfered with the neighbour’s right to light.
The law of nuisance is a bit of a dog’s breakfast, and it can be very difficult to predict whether an activity will actually constitute a nuisance. This is because the question of whether the activity constitutes a nuisance partly depends upon the character of the locality in which the activity is being carried out. As one judge put it “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”.
Of course, the character of a locality can in large part be determined by planning permissions, particularly wide-ranging or ‘strategic’ planning permissions. A famous example of such a planning permission was the planning permission for the Canary Wharf tower which entirely altered the character of the surrounding area.
An argument has therefore developed over the last 20 years that if the activity that is being complained of is being carried out under a planning permission (particularly a strategic one), then it becomes part of the character of the locality, and as such the activity cannot be a nuisance. This was, of course, a particularly attractive argument for developers, and it found favour with the courts too.
Unfortunately, a recent Supreme Court decision* has put a stop to this line of argument. Here the developer tried to argue that because the activity (speedway racing) was being carried out under a planning permission, then it formed part of the character of the locality, and therefore it had a defence to the nuisance claim made in respect of that activity. The Supreme Court did not agree. It did not think that the fact that an activity has planning permission means that a person should be prevented from having a claim in nuisance in respect of that activity. There may be some circumstances where compliance with the conditions of a planning permission might indicate that an activity is not a nuisance, but the existence of the planning permission itself cannot constitute a full defence.
Developers therefore need to be aware that the mere fact of a planning permission will not protect them from a claim in nuisance. This is not news that developers will welcome, but this does contain some good news, particularly in relation to when injunctions will actually be granted, which we will be covering in our next blog post.
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*Coventry v Lawrence