Hayley Tam and Colleen Theron, from LexisPSL, analyse a judgment confirming that planning permission doesn't offer protection from nuisance claims

The grant of planning permission or of an environmental permit is not a defence to private law nuisance. However, the effect that any statutory authority may have on a nuisance claim depends on the type of permit or licence and the facts of the case.

In Lawrence and another v Fen Tigers Ltd and others [2012] All ER (D) 180 (Feb), the Court of Appeal (CA) confirmed that the grant and implementation of planning permission may change the “character” of a locality, and that offensive activities in the area may cease to constitute a nuisance.

However, in Barr and others v Biffa Waste Services Ltd [2012] All ER (D) 141 (Mar), the Court of Appeal (CA) found that there was no authority to extend this principle to waste permits. Therefore, the grant and implementation of an environmental permit is unlikely to change the character of a locality.

In Lawrence, the CA allowed an appeal against the High Court’s decision that noise from a motor racing stadium constituted a nuisance. In 2006, the claimants bought a house next to an existing motocross stadium. They were unaware of the different forms of motor sports carried out at the site and complained to the authority about noise.

The local authority subsequently served two notices of breaches of the planning permission and issued an abatement notice. Works were completed in 2009 to the satisfaction of the authority. The claimants then brought an action in private nuisance against the defendants.

The critical issue for the CA was what effect the granting of planning permission had on the character of the locality. When the claimants purchased their property, various forms of motor sports had been taking place at the stadium for 13 years.

The court held that the noise emanating from the track and stadium, although unwelcome, was an established, and indeed dominant, part of the character of the locality. It could not be left out of account when considering whether the noise levels constituted a nuisance.

Lord Justice Jackson summarised the law on nuisance as follows: the grant of planning permission cannot authorise a nuisance, but the implementation of the grant of planning permission could change the character of a locality. However, this is a question of fact in every case.

The question of whether the activity constitutes a nuisance must be decided against the background of that change in character; and a consequence of the change in character might be that otherwise offensive activities in that locality ceased to constitute a nuisance.

It is a reminder to those involved in planning to check the character of the area where they are developing projects.