Keywords: private nuisance, dclcnce, statutory authority, planning permission, environmental permit, injunction, damages
An activity causing a nuisance will often be subject to existing statutory controls. The relationship between such controls and the ability of those affected to bring a claim in private nuisance has been considered by the Court of Appeal in two important cases, decided within three weeks of each other. In Coventry (t/a RDC Promotions) v Lawrence  EWHC 360 the claimant had argued successfully at first instance that the fact that a racing circuit had been authorised by various planning permissions was not relevant to a claim in nuisance, it was possible for activities at the circuit to be organised so that they did not cause a nuisance to the claimants, and an injunction was granted. Bv contrast, in Barr v Biffa Waste Services Ltd  EWHC 1003 (TCC), the defendant landfill site operator successfully defeated a claim for odour nuisance in the High Court on the basis that it had complied with the detailed terms of its environmental permit. The Court of Appeal held that both decisions struck the balance incorrectly: failing to give sufficient consideration to the permitted activities in Lawrence and giving too much weight to the permit in Barr.
Carnwath LJ (now Lord Carnwath of Notting Hill) confirmed that the principles from the 19th century cases remain valid and that the application of those principles should be 'relatively straightforward'.' It remains to be seen whether such a prediction will be reflected in practice: the treatment of recent nuisance claims in the High Court has been lengthy and convoluted (the judgments in Barr ran to 585 paragraphs and in Lawrence to 325 paragraphs; Ramsey J's recent decision in the case on smells and mosquitoes from Mogdcn Sewage Treatment Works in Middlesex2 extended to 1,121 paragraphs). There is still scope for argument about when and how statutory controls become relevant to nuisance actions, especially controls outside of the sphere of town and country planning. The decision in Barr also opens up scope for discussion on whether an injunction or damages is the appropriate remedy once it has been established that an activity serving the wider public interest causes a nuisance. On both issues, the Court of Appeal's decisions point the way for future practice, but leave open a number of questions.