Archive for the ‘Planning’ Category

Easement by prescription to create a noise that would otherwise be a nuisance. Private nuisance and the public interest

September 29, 2014

In Lawrence v Fen Tigers Ltd ([2014] AC 822, SC) (Coventry v Lawrence) C used former farmland near a village for speedway and similar types of racing. The land used as the stadium had planning consent for the various types of races held there. A succession of temporary consents began in 1992 ending when permanent planning permission was granted in 2002. L was a resident in the village having moved there in 2006. L brought an action in nuisance because of the noise caused by racing and ancillary activities at the stadium. The Supreme Court decided that the judge at first instance had been right to find that the noise was a nuisance and that C had not acquired an easement by prescription entitling it to make the noise that was complained of (although the acquisition of such an easement was legally possible). The fact that the defendants had planning permission to carry on the noisy activity did not settle the question as to whether or not there was a private nuisance.

This note relies principally on the judgment of Lord Neuberger. Although the other judges agreed with him in general there were differences of approach on some issues.

Can an easement to commit what would otherwise be a nuisance by noise be acquired by prescription?

Lord Neuberger held that it is possible to acquire an easement to carry on an activity which results in noise ([33]) and it can be acquired by prescription ([37]). But it is not enough to show that the noise has been created for 20 years. It must also have constituted a nuisance during that time ([42]). Otherwise, the servient owner would not know that a claim was being made against his land ([43]).

Coming to the nuisance

It was no defence to say that the claimant came to the nuisance where the claimant continues to use the property in the way that it had previously been used by her predecessors ([51]). It may be different where the claimant built on the land or changed the use to which it was put after the alleged noise nuisance had started ([56]).

Reliance on the defendant’s own activities in defending a nuisance claim

The character of the locality is an important consideration in nuisance cases ([59]). The court has to have regard to ‘the established pattern of uses’ ([60]). On this basis, the defendant’s own activities clearly should be taken into account ([63]) to the extent that they have become part of the character / established pattern of uses but not to the extent that there has been some change / intensification that might constitute a nuisance ([65]). Even where it was originally a nuisance, the right to make the noise might have been acquired by prescription or sanctioned by a previous decision to award damages rather than an injunction for the breach ([69]). See also Lord Carnwath (at [187]).

The effect of planning permission on an allegation of nuisance

Lord Sumption explained the importance of this issue and the next (remedies):

‘It is, I think, worth pointing out that the question what impact the grant of planning permission should have on liability in tort for private nuisance and the question what remedies should be available for a nuisance are closely related. They both raise a broader issue of legal policy of some importance, namely how is one to reconcile public and private law in the domain of land use where they occupy much the same space?’ ([155]).

It is normally not a defence ([94]) but neither is it irrelevant; it may have evidential value ([96]).

The award of damages instead of an injunction

The role of this issue in the general scheme or design of the law in this area is explained thus:

‘What saves, or could save the law from anomaly and incoherence is the court’s discretion as to remedies. An injunction is a remedy with significant side-effects beyond the parties and the issues in the proceedings. Most uses of land said to be objectionable cannot be restrained by injunction simply as between the owner of that land and his neighbour. If the use of a site for (say) motocross is restrained by injunction, that prevents the activity as between the defendant and the whole world. Yet it may be a use which is in the interest of very many other people who derive enjoyment or economic benefits from it of precisely the kind with which the planning system is concerned. An injunction prohibiting the activity entirely will operate in practice in exactly the same way as a refusal of planning permission, but without regard to the factors which a planning authority would be bound to take into account. The obvious solution to this problem is to allow the activity to continue but to compensate the claimant financially for the loss of amenity and the diminished value of his property. In a case where planning permission has actually been granted for the use in question, there are particularly strong reasons for adopting this solution. It is what the law normally provides for when a public interest conflicts with a proprietary right.’ (Lord Sumption at [157]).

An injunction had been granted at first instance. C now contended that damages should be awarded instead. This issue and the question as to how damages should be assessed was an issue in all but one of the judgments. The Supreme Court clearly saw this as an important issue and an area that needed to be settled. Lord Neuberger envisaged that it would be argued and considered more fully in later proceedings ([152]).

Michael Lower


Judicial review of the Outline Zoning Plans for Causeway Bay and Wanchai

September 21, 2012

Hysan Development Co Ltd v Town Planning Board([2012] HKEC 1266, CFI) was an application for judicial review of the Town Planning Board’s decision to approve the Outline Zoning Plans (‘OZP’) for Causeway Bay and Wanchai. Hysan contended that the decision to impose Building Height Restrictions, Non-building areas and setbacks  ‘were either beyond the Board’s powers; unreasonable; irrational; arbitrary; based on erroneous appreciation of fact; the result of procedural unfairness; or an abdication by the Board of the proper exercise of its statutory duties.’ ([10]). Hysan succeeded in having the decision to approve one aspect of the Causeway Bay OZP quashed but otherwise the application failed entirely. The following principles were set out in the course of the judgment.

1. The Board does have power to impose restrictions on particular sites. Whether these restrictions do or do not ‘severely constrain design’ is for the Board to decide and the court (less equipped to make this judgment) will give due deference to the decision ([18]).

2. Briefing papers and minutes of meetings are to be ‘read liberally and in context’ and not as if they were statutes ([38]).

3. ‘ A developer has no legally protected right always to have the best of everything.’ It has to balance a range of competing design and profit-maximisation concerns with legal and physical constraints operating on a site.’ ([29])

4. Guidelines prepared by the Buildings Department have different objectives than decisions made by the Board. The former are concerned with building design while an OZP is prepared with urban design and planning objectives in mind. ([58]).

5. The OZP and its individual elements were not approved arbitrarily or irrationally where the proposals were tested against alternatives in a dynamic way, where independent expert advice was taken and the commercial impact of the decision was taken into consideration. The Board is entitled to a wide degree of deference ([79]). The mere fact that other decisions could have been made does not invalidate the decision actually reached ([146]).

6. Where, however, there was no clear rationale for a decision then it was arbitrary and could be quashed on that ground ([147] – [150]).

7. It was for the Board to satisfy itself that it had understood and given due weight (which might be more or less) to representations made to it. This might mean that it does not read all of the documents submitted to it or submit them to detailed analysis if it is reasonably satisfied that it has taken the points made in the documents into account. ([166] – [181]).

8. The fact that not all members of the Board were present at every stage of a Board meeting does not lead to a conclusion that there was procedural unfairness ([182] – [187]).

9. ‘The mere fact that zoning restrictions imposed in the public interest will lead to a diminution of property values will not, without more, amount to an unlawful deprivation of property contrary to the Basic Law. A landowner takes property subject to an implied condition that, for the public good, the Government may by regulation (including OZPs) limit the uses to which such land can be put in the future.’ ([195] per Reyes J).