Lawful noise from speedway track could still be a nuisance to homeowners, Supreme Court rules

The UK's highest court reinstated Kate Lawrence and Ray Shields' claim, which has been upheld by the High Court but overturned by the Court of Appeal. In his leading judgment, Lord Neuberger said that the noisy activities at the site came under the law of private nuisance, and that the operators of the stadium and track had "failed to establish a prescriptive right" over the past 20 years to carry out those activities.

Property litigation expert Matthew Baker of Pinsent Masons, the law firm behind Out-Law.com, said that what was particularly notable about the case was that the court had opened up the possibility of the couple obtaining damages for the nuisance, rather than an injunction preventing the activities altogether. This overturned previous case law in this area and could impact on a wide variety of property rights cases, he said.

"Although an injunction is the prima facie remedy in these types of cases, by opening up the possibility of damages being awarded in place of the injunction the Supreme Court has overruled the long-established case of Shelfer v City of London Electric Lighting Co.," he said.

"This may have a significant impact on a wide variety of property cases where parties claim injunctions to protect their property rights. Recent examples are rights to light cases such as Heaney, where Pinsent Masons acted for the successful party. Here, the court applied the 'Shelfer test' and held that it was appropriate to award an injunction for the removal/demolition of a development that interfered with a right to light," he said.

The couple claimed that they had been unaware that Fenland, the residential property they purchased in 2006, was less than one kilometre away from West Row stadium, home of the Fen Tigers speedway team. In 2009, they obtained an injunction and damages against the operators of the stadium from the High Court.

The law of nuisance covers actions, or failures to act, which interfere with somebody else's enjoyment of their land. There are various circumstances in which the right to carry out an activity which would otherwise be considered a nuisance can be expressly granted, but it can also be granted by prescription where the activity is carried out uninterrupted for 20 years 'as of right', without objection.

The problem in this case was that although the stadium had been used for speedway for more than 20 years, what had to be established was that that activity had created a nuisance for the prescribed period, according to Lord Neuberger. "Otherwise, it could not be said that the putative servient owner had the opportunity to object to the nuisance, or could be said notionally to have agreed to it," he said.

He also pointed out that it was not a defence to show that the person making a nuisance complaint "came to the nuisance". The fact that Lawrence and Shields were using the property for "essentially the same purpose as that for which it has been used ... since before the alleged nuisance started" was relevant here, he said. There could only be room for argument where the person making the complaint had built on or changed the use of the property, he said.

It was also irrelevant that, in this case, the operators of the track had been granted planning permission to use the site for speedway-related activities, albeit with restrictions on the days and times at which they could do so, he said. Although a grant of planning permission could "give rise to a change in the character of the locality", activities that caused a nuisance could not be included as part of the character test to the extent that they were a nuisance, he said.

Fenland has since been destroyed in a fire, so the Supreme Court stayed the injunction until the couple's home was rebuilt. However, Lord Neuberger said that when and if the matter returned to the High Court, the judge should be entitled to consider whether to discharge that injunction and instead award damages for future nuisance, while allowing the activities to continue. The Shelfer test for when damages should be granted instead of an injunction, should not interfere with the court's discretion, he said.

"The court's power to award damages in lieu of an injunction involves a classic exercise of discretion, which should not, as a matter of principle, be fettered, particularly in the very constrained way in which the Court of Appeal has suggested in [subsequent cases]," he said. "And, as a matter of practical fairness, each case is likely to be so fact-sensitive that any firm guidance is likely to do more harm than good."

However, that did not mean that damages should be granted instead of an injunction in every case, he said.

"Having approved that statement, it is only right to acknowledge that this does not prevent the courts from laying down rules as to what factors can, and cannot, be taken into account by a judge when deciding whether to exercise his discretion to award damages in lieu. Indeed, it is appropriate to give as much guidance as possible so as to ensure that, while the discretion is not fettered, its matter of exercise is as predictable as possible. I would accept that the prima facie position is that an injunction should be granted, so the legal burden is on the defendant to show why it should not," he said.