Affected by noise? Mildenhall Judgment

Noise nuisance at Race Track – Court Decided that Planning Permission has little if any relevance to the private nuisance.  No defence of “the track was here first”.  Possibility of a right to make a nuisance if it can be proven over a period of 20 years.  Cessation of activity upheld as primary remedy instead of damages.

Serious implications for all those affected by noise or responsible for making noise in particular track operators and track day organisers.

The recent Supreme Court decision in Coventry v Lawrence regarding the Mildenhall speedway and motocross track is a very important case for motorsport and noise nuisance providing much needed clarification of a number of issues which had been in doubt following the Court of Appeal’s ruling over the Croft race track some 4 years ago.

The case concerned a family who moved nearer to a speedway and motocross track and subsequently began private civil proceedings for private noise nuisance. The Supreme Court has ruled in their favour i.e. that the track has created a noise nuisance.

The court led by Lord Neuberger has confirmed that, except for very exceptional cases, private legal rights are not removed or diminished by the grant of planning permission for the activity in question. This is crucial for motorsport operators to understand because it means that there is no “immunity” from a civil action just because the circuit is operating legitimately in accordance with the requirements of the local authority and planning laws.

Secondly the court upheld the historic ruling that it is not a defence to claim that “the track was here first”.  A new resident has the same rights of complaint as those who have traditionally lived in the area. The court did suggest that this might be subject to a limitation where there has, perhaps, been a new housing development but offered no more guidance than this. The upshot therefore is that it only needs one new resident to claim noise nuisance even though the existing local population are quite happy.

The court also gave some guidance as to the appropriate remedies in the event of a successful nuisance claim. Once more it upheld the ruling of the Court of Appeal in the Croft case which was that an injunction (i.e. cessation of the nuisance activity) is the normal and preferred method of remedying noise nuisance. Having said that the court did suggest that in cases where there has been historic activities supported by planning permission then it might look to damages rather than order cessation.

The court stated that nuisance might be assessed by considering the uplift in the noise which causes the nuisance and then comparing to the background level without such noise.  It also thought that considering the levels and usage of other circuits might give a guide to acceptable noise levels.

The court offered one hope to motorsport operators and said that it might be a defence to a noise action to claim that the noise has been ongoing for more than 20 years without interruption. In other words it might be possible to claim an “easement of noise”. However the court discussed this in a fairly summary way without looking at how the mechanics of such a claim might be established. It did however suggest that only the element of nuisance would give rise to an easement of noise and that it would be necessary for the operator to provide substantial evidence to support such a claim. This is perhaps akin to the mechanism for obtaining a certificate of lawful use in planning terms where the party claiming the right has to show that it has been in breach (i.e. operated illegitimately) of the relevant planning law. Of course it will be immediately apparent to any reader that this could be something of a double jeopardy because it would have to, in effect, admit to causing a noise nuisance in order to gain legitimate protection. Many operators and lawyers are likely to feel nervous about such an approach especially as it will be likely that the actual noise nuisance in question will not have been decided in law at the time when the claim is formulated. This could well be a circular argument and the penalty for losing could be severe. No doubt there will be a lot of lawyers reading their textbooks on prescriptive rights in an attempt to provide clarification to the thoughts of the court.

In general terms the decision of the Supreme Court is likely to work against motorsport that there will be more private noise nuisance claims supported by costs insurance.  The real problem is that although the courts are unlikely to order the outright closure of tracks they may well order a reduction in activity levels to a point where many tracks become unviable economically and thus indirectly will close. This may affect track days especially and track day operators.  In the long term the risk of ongoing noise nuisance action from new residents to an area and may well deter operators from investing in their tracks. It may also lead to teams, their supporting engineers and manufacturing bases moving abroad to locations where racing and the necessary testing is without the threat of noise nuisance action.

Posted: 27/11/2015
Categories: News