Facts
- The defendant, under planning permission, built and utilised a racing track and motocross (off road motorbiking) facilities starting in 1975
- The claimants moved to a house nearby in 2006
- The defendant carried out noise reduction works in 2006
- The claimants claim that the racing track is a nuisance
Issue
- Did the racing facilities constitute a nuisance?
Decision
- No, claim failed
Reasoning
- 20 years’ prescription defence ineffective as only 16 years; ok to have gaps, but 20 years not made
- Coming to a nuisance is no defence, however, where a claimant changes the use of his land after the nuisance started, the defence may be allowed (sympathetic to Lord Denning’s dissent in Miller v Jackson [1977]
- Planning permission will not assist a defendant in the defence of a nuisance claimant, except where conditions are stipulated, which may then be relevant (it is not for planning agencies to decide what is a nuisance)
- Where there is a nuisance, a claimant is entitled to an injunction unless the court has reasons to award damages instead
- In deciding whether to award damages in lieu of an injunction, the court is to consider the four tests set out by Lord Smith’s judgment in Shelfer v City of London Electric Lighting Co [1895] (below). The court may then use its discretion to award damages. Public interest and planning permission should also be considered in the decision.
- Is the injury to the claimant’s rights small?
- Can the injury be estimated in money?
- Can the injury be compensated by a small money payment?
- Would it be oppressive to grant an injunction?
