You can't stop me – I have planning permission

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16 November 2009

It is a long-established principle that planning consent cannot authorise a nuisance. A local planning authority may authorise an activity, but a court may still impose restrictions (or even a complete ban) if the activity is causing a nuisance.

It is true to say that the grant of planning consent and its subsequent implementation can change the character of a location, which is one of the considerations when deciding whether a nuisance is occurring in the first place. Therefore, an activity that would have been an actionable nuisance prior to a planning consent may no longer be a nuisance once development has commenced.

The interaction of these principles can cause grey areas for landowners. The recent Court of Appeal decision in Watson v. Croft Promo-Sport [2009] illustrates this. The Defendant was a motor racing operator with planning permission to race on 210 days of the year. The residents of neighbouring properties considered that the noise was excessive and brought a civil claim in private nuisance.

The High Court considered that the planning consent had not altered the character of the (predominantly rural) area and found that the noise from the motor racing was a nuisance. However, the High Court also considered that the neighbours could be adequately compensated in monetary terms and refused an injunction. Both parties appealed.

The Court of Appeal upheld the High Court's finding that there was a nuisance, but held that the lower Court was wrong to refuse an injunction. It granted an injunction limiting the racing to 40 days of the year.

The case is a useful reminder of the interaction between the planning regime and the tort of private nuisance. All landowners seeking to develop their land or branch into new revenue generating activities should be aware that planning permission does not provide absolute certainty when interference (such as noise or odour) from a development may affect the local community. Landowners should actively engage with the local community at an early stage in the planning process to reduce the chances of private claims by disgruntled neighbours once the development is in operation.

If you would like further information please contact Michael Barlow by e-mail or by telephone on +44(0) 117 902 7708 or Simon Tilling by e-mail or by telephone on +44(0) 117 902 7794.

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