Planning permission does not create rights
- AuthorRobert Clark
The judge in a nuisance case in relation to noise generated by a local business raised some very interesting issues which could have relevance to those considering similar types of action.
In this case, a local resident complained about noise nuisance from a speedway venue that was situated close to their property. The speedway venue had originally been built, and had received planning permission, in 1975; albeit that there had been some issues over the years relating to its use vis-à-vis the original activities for which planning permission had been granted. A residential property, called “Fenland” was about 500m from the venue and had been purchased by the complainants in January 2006. In April 2006 the complainants raised the issue of noise nuisance with the local authority with the result that a noise enforcement notice was served on the venue and various modifications to the venue were required to mitigate the noise emanation. This did not resolve the matter, which ultimately ended up in court.
The court examined the arguments and came to some very interesting findings:
- It is not a defence to a claim in nuisance to show that the claimant had acquired, or started to occupy, their property after the nuisance had started: that is, it is no defence that “the claimant had come to the nuisance”.
- It might be a defence for a defendant to contend that, as it was only because the claimant had changed the use of, or built on, their land that the defendant’s pre-existing activity was claimed to have become a nuisance, the claim should fail (albeit that this argument was not applicable in the present case).
- It is not a defence, in and of itself, to a claim in nuisance that the activity which is said to give rise to the nuisance has the benefit of a planning permission; albeit that this would be a factor that would be taken into account (in this case, in relation to the noise levels referenced in the planning permission).
The court, in this case, found for the complainant and issued an order for damages and placed an injunction on further operation of the venue in its current form (allowing for the injunction to be lifted if certain specific changes were made).
Robert Clark comments “This judgement gives hope to the beleaguered and also sends a message to local businesses not to rest simply on the paperwork for their planning permission. As the judge said in this case, the speedway venue had not achieved the right by dint of its planning permission to make noise”.