A case about noise could light up the way for developers.
The case looked at a number of issues:
1. Whether you can acquire a right to do something that would otherwise be a nuisance;
2. Whether it is a defence to say that the claimant “came to the nuisance” and therefore cannot complain about it;
3. Whether the grant of planning permission has an effect on interpreting what is and what is not a nuisance;
4. The approach that courts should take when granting injunctions.
Although the case involved noise nuisance, it is just as relevant to right of light cases where an interference commits a nuisance of a different kind.
On the various issues, the Supreme Court found that:
1. one can acquire a right to do something that would otherwise be a nuisance (in this case, the right to emit noise);
2. it is no defence to argue that the claimant “came to the nuisance” eg where they move to a house knowing that it is the subject of a nuisance;
3. the grant of planning permission is relevant to the test of whether a particular activity causes a nuisance but only by way of background. To an extent, planning permission can change the character of the locality in which the alleged nuisance is taking place and therefore might alter the ‘test’ of whether the activity amounts to a nuisance. The planning permission would need to relate to a large area (or a strategic development) for the court to be able to conclude that the locality is changed and it is certainly the case that no planning permission could deprive a claimant from compensation where there is an actionable injury. But it is one of the factors to be taken into account when considering what is and what is not a nuisance;
4. the principles which guide the courts when deciding whether to grant an injunction (the Shelfer principles) may be outdated. Lord Neuberger held that when being asked to award damages instead of an injunction, the courts should be more flexible than they had been in recent cases when applying the tests in Shelfer. The fact that all the four conditions in Shelfer have not been met does not mean that an injunction should be granted. Lord Sumption went further and said that it was unfortunate that Shelfer had been followed “so recently and so slavishly”.
In summary, this case offers hope to those developers who have been paying out ransom fees to neighbouring owners in the fear that those owners could stop the development in its tracks. The case should also cast doubts in the minds of those who seek to ransom developers without any proper consideration of the legal principles and how they would be applied in each case.
by Mike Scott, Partner