The right to commit a noise nuisance: Coventry and others v Lawrence and another [2014] UKSC 13

The Supreme Court has recently considered noise nuisance, and in particular whether a right to commit a noise nuisance can arise by way of prescription.

In the case of Coventry and others v Lawrence and another [2014] UKSC 13, the Supreme Court considered, amongst other things, the extent to which it was open to a defendant to argue that he had established a prescriptive right to commit what would otherwise be a nuisance by means of noise.

In this case, planning permission was granted for the construction of a stadium for speedway racing and motorcross activities in the Suffolk countryside in 1975. Whilst initially limited to a period of 10 years, it was renewed on a permanent basis in 1985. A certificate for lawful use was also obtained for stock-car and banger racing. In 2006, the appellants (Lawrence) moved into a bungalow located near the stadium and in 2008 they issued proceedings against the operators of the stadium for an injunction prohibiting their activities on the ground that they gave rise to a nuisance by noise.

At first instance the appellants were successful and the Judge made an order for an injunction limiting the level of noise emitted by the activities of the defendant. However, the Court of Appeal overturned the decision, stating that the appellant had failed to establish that the activities constituted a nuisance (placing heavy weight on the planning permission that was granted).

The Supreme Court disagreed and restored the injunction granted by the Judge at first instance.

At the appeal, the respondent stadium operators argued (amongst other things) that they had established a prescriptive right to commit what would otherwise be a nuisance by noise. The Supreme Court initially agreed that such prescriptive right could come into existence. However, whilst the Supreme Court concluded that "it is possible to obtain by prescription a right to commit what would otherwise be a nuisance by noise, or, to put it another way, to transmit sound waves over neighbouring land", such right had not been established by the defendants in the immediate case.

The defendants had not shown that their activities over a period of 20 years amounted to a nuisance. To justify the establishment of a right to create a noise by prescription, it was not enough just to show that the activity which now created the noise had been carried on for 20 years, or that it had created a noise for 20 years. What had to be established was that the activity had created a noise nuisance over 20 years. The defendants had to show that the noise caused by their activities was created "as of right" and not merely "of right". The mere fact that planning permission was granted did not amount to a prescriptive right of its own accord.

The defendants did not satisfy this test and accordingly the Supreme Court ordered that the injunction be restored.

There have been very few rulings on private nuisance at Supreme Court level, and some conflicting lower level judgements have created uncertainty in this area of the law. Whilst the Supreme Court has now clarified at least that the grant of a statutory authority does not necessarily permit a nuisance to take place, the ability to acquire a right to make noise may present future challenges for those who are slow to take on a noise nuisance claim.