Members of the MIA will recollect the devastating law decision regarding the Croft racing circuit in 2010 the upshot of which has been that the activities at Croft circuit have been drastically curtailed. Croft was a private nuisance action brought by the ex-wife of the track owner and her parents who lived adjacent to the circuit itself. The case went to appeal on two main grounds - firstly that monetary damages (which was the remedy provided by the initial court) was not an adequate remedy and secondly that the grant and implementation of planning permission for motorsport usage had changed the character of the area and should be taken into account in assessing whether a legal nuisance existed. Unfortunately for motorsport the Court of Appeal decided that an injunctive remedy was appropriate (restricting the number of days use to 40) and that planning permission alone (save for exceptional circumstances such as national importance) would not normally have any bearing on whether a nuisance existed or not.
The issue of whether planning permission changes the character of an area is a facet of a larger legal question namely what defines an area and legitimises its activities. Planning permission is one of the key constituents in this process but it has always been held by the courts that planning permission of its own does not grant legitimacy to something which might already be a nuisance. In that sense Croft upheld the prevailing view. However this is also linked to the question as to how far a person who is new to an area must accept the prevailing conventions and character of that area. Historically the law has always been that it is no defence to claim that a newcomer should take subject to pre-existing problems and illegalities such as noise nuisance.
The recent case out of Mildenhall Stadium (February 2012 Court of Appeal) goes a long way to providing a counterbalance to the Croft decision.
The facts of the case were that Mildenhall Stadium (speedway track) has existed for many years. The track benefits from a certificate of lawful use for planning purposes. (This is essentially a planning permission granted by virtue of long use). Stock car racing, banger racing and motocross all take place in the stadium or its immediate vicinity. In 2002 permanent planning permission was granted for a motocross track although this was subject to quite strict conditions as to times of use and noise levels. In 2006 Mr and Mrs Shields (the claimants in the case) bought a property in the vicinity of the stadium and track (somewhere in the region of 600m away). They made various complaints to the local council regarding noise from the motorsports as a result of which the council enforced the conditions relating to the planning permission and served a noise abatement notice on the venue owners. During 2008 works were carried out to reduce the noise emanating from the stadium and motocross track and the council declared that it was satisfied as to the outcome. It did not pursue the matter further. As a result Mr. and Mrs Shields brought a private nuisance action against the track owners alleging noise nuisance.
At first instance the Court found in favour of Mr. and Mrs Shields and the matter went to appeal. The grounds for appeal were:
(1) That the original trial judge had failed to take account of the planning permissions which had been granted to the operators and the fact that those permissions had changed the character of the area.
(2) That the claimants had moved into an area which had been subject to high levels of noise for many years and had therefore purchased subject to those levels.
(3) That long use by the owners of the stadium had created an easement of noise and this negated the possible nuisance.
The Court of Appeal examined the law in detail and unanimously decided that by obtaining and implementing the planning permissions together with long usage, motorsport noise had become integrated into the character of the area. Accordingly the noise generated by the motorsport was legitimate at the levels created and so no nuisance had occurred. Following on from this the court concluded that since the noise was well established and legitimate by the time that Mr. and Mrs Shields purchased the property they took subject to it. Indeed the court was perhaps a little sceptical of the claim that the claimants were not aware of the noise and stated that the planning permission situation could have been checked with the local authority at the time of purchase.
Lord Justice Lewison also passed comment on the question of whether an easement of noise could exist (in other words a right to transmit a certain level of noise over another person's land). He stated that although this would be unusual, an easement of noise was not something which was impossible to create.
Mildenhall is a very important judgment in motorsport terms. Unfortunately it does not overturn the Croft decision but leaves Croft as a standalone decision turning on its own factual merits. The principle that an implemented planning permission can affect the character of an area is likely to weaken many claims for nuisance and will make it much harder for residents who are new to an area to claim nuisance. The decision also casts some doubt on the merits of one of the frequently used methods of noise assessment i.e. a comparison of the noise levels in the area with and without the noise complained of. This means for example that if weekend motorsport is a legitimate established part of the noise climate then it must be included as part of the ambient/background noise assessment during that period. This supports the expert opinion of Mr Doug Sharps which has already been accepted judicially in the Bruntingthorpe and Dunkeswell cases. The judicial comment that an easement of noise can exist may give considerable hope to long-standing tracks who feared noise nuisance action and lawyers will now be looking at how such claims can be established.
Mildenhall is also an important decision for statutory nuisance because it highlights the contradiction which occurs in so many cases where a local authority has granted planning permission for motorsport activities but subsequently declares those activities to be a statutory nuisance. In such instances it will be easier for the court to conclude that the local authority is the architect of its own problem.
Mervyn Rundle, Solicitors Title firstname.lastname@example.org