It has long been an established principle of common law nuisance that it is no defence that the claimant ‘came to the nuisance’.
Thursday, 18 April 2019, Rob Biddlecombe
It’s not an uncommon scenario: a new block of flats goes up close to an industrial unit whose inhabitant operates at night. Residents move in.
The company in the industrial unit starts to get complaints about noise. Before they know it, the council’s EH team is involved and there’s a messy dispute.
Unfortunately, the business in this scenario doesn’t have much legal recourse at the moment. It has long been an established principle of common law nuisance that it is no defence that the claimant ‘came to the nuisance’. In other words, it is irrelevant that the claimant moved to the area after the activity that is alleged to constitute a nuisance started. Defendants often contend that it is unfair to prevent them from carrying out an activity, which they may have done for years without complaint from anyone, simply because a newcomer objects.
In the 1977 case of Miller v Jackson, the Court of Appeal found in favour of residents of a new housing development who were fed up with batsmen from the cricket club hitting balls into their gardens. The court granted an injunction forcing the club to cease playing or move, notwithstanding that the club had been playing there for 70 years. However, recent developments have suggested that this principle is being questioned in the courts and by policymakers.
First, in the 2014 case of Coventry v Lawrence, the Supreme Court suggested that in some instances a court might not hold that a defendant’s existing activity gives rise to a nuisance. This is in situations where a claimant builds on or changes the use of their land, and has provisos relating to the activity causing the issue:
it can only be said to be a nuisance because it affects the senses of those on the claimant’s land (for example, it was a noise or odour-related claim)
it was not a nuisance before the building or change of use of the claimant’s land
it is and has been a reasonable and lawful use of the defendant’s land
it is carried out in a reasonable way
it causes no greater nuisance than when the claimant first carried out the building or changed the use.
A new principle More recently, the revised National Planning Policy Framework introduced the ‘agents of change’ principle into the legislative planning framework. Essentially, the person responsible for the change to an area is responsible for the effects it may cause. For example, if a new housing development were built close to a major music venue, the developer and new residents would be responsible for taking steps to mitigate the effects, even though the potential noise nuisance would be produced by the venue operators.
Anyone who buys land near a music venue or airport should realise that noise levels will be quite high. However, any dilution of the ‘coming to a nuisance’ principle would place greater onus on developers and homeowners not to be caught out by ensuring that they carry out adequate pre-contract due diligence in order to identify sources of potential nuisance.
Rob Biddlecombe is a senior associate at Squire Patton Boggs.
This article is adapted from a piece that appeared in the April 2019 issue of EHN.