Planning & Environment

Can a planning permission be taken into account in deciding whether there is a nuisance? That was one of the questions before the Supreme Court in a recent case in which the appellants claimed that noise emanating from the nearby motor sports stadium amounted to a nuisance.

Motor sport had a long history at the stadium – planning permission for the speedway racing was first granted in 1975. Later, permissions for motocross, stock car racing and banger racing were also granted.

In January 2006, the appellants bought a property nearby. By April 2006, they had become concerned about the noise emanating from some of the stadium events, and in 2008 they issued proceedings for an injunction to restrain the nuisance. They were successful at first instance, but the decision was overturned by the Court of Appeal. The Appellants appealed to the Supreme Court.

The Supreme Court found that the activities at the stadium do constitute a nuisance, and in allowing the appeal, held (among other things) that:

  • the existence of planning permission for a given use is normally of very limited relevance to the question of whether that use constitutes a private nuisance;
  • it may provide some evidence of reasonableness of the particular land use in question, but planning powers do not exist to enforce or override private rights in respect of land use;
  • it would be wrong in principle that, through a grant of planning permission, a planning authority should be able to deprive a property owner of a right to object to what would otherwise be a nuisance, without providing them compensation;
  • a planning authority is expected to balance competing interests as best it can in the overall public interest and some of those interests play no part in the assessment of whether a particular activity constitutes a nuisance;
  • there may be occasions where the terms of a planning permission could be of some relevance in a nuisance case, for example, if a planning authority takes the view that a noisy activity is acceptable after 8.30am in a particular location, that may be of value in a case where a claimant argues the activity gives rise to a nuisance if it starts before 9.30am.

On the question of remedy, the Court was of the view that the existence of a planning permission which expressly or inherently authorises carrying on an activity in such a way as to cause a nuisance can be a factor in favour of refusing an injunction and instead compensating the claimant in damages.

Planning & Environment

Brodies’ planning and environment teams represent clients involved in Scotland's biggest planning issues, offering expert advice to help clients navigate the sometimes daunting Scottish planning law landscape. The Brodies planning team was ranked top tier in both The Legal 500 and Chambers & Partners directories.
Planning & Environment