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Implications for the Scots Law of Nuisance: Coventry v Lawrence

Document Cited authorities 13 Cited in Related
Vincent
AuthorElspeth Reid
DOI10.3366/elr.2014.0230
Date01 September 2014
Pages383-388
Published date01 September 2014
THE FACTS

The mediaeval market town of Mildenhall achieved moderate fame in the 1960s when it was identified by the pop group Pink Floyd as the site where extraterrestrial beings made landfall.2

As narrated in their song, Let There Be More Light: “Then at last, the mighty ship, Descending on a point of flame, Made contact with the human race at Mildenhall.”

A decade or so later it was stock cars rather than starships that were troubling the tranquillity of this corner of rural Suffolk.3

A nearby military airbase at RAF Mildenhall cannot have been a silent neighbour either, but its proximity did not appear to influence the reasoning in this case.

 In 1975 the defendants were granted planning permission to construct a stadium on agricultural land just out of town and an outdoor race track was added later. The events taking place at the site over the years included speedway, stock car, “banger”, motorbike, and greyhound racing, all as covered by planning permissions duly obtained from the local authority. Half a mile away is a bungalow called “Fenland”, built in the 1950s and acquired by the claimants in 2006. Soon after moving in the claimants complained to the local council and noise abatement notices were served, resulting in attenuation works being carried out at the stadium in 2009. In the meantime, however, the claimants had issued proceedings for an injunction to restrain the nuisance. In this recent decision the Supreme Court ruled that, notwithstanding the various planning permissions, the noise made by the defendants did constitute a nuisance, although damages instead of an injunction were ultimately to be awarded. While the English and Scots law of nuisance plainly differ in important respects, the issues engaged in Coventry v Lawrence raise intriguing questions as to how a nuisance of comparably long standing would be judged north of the border POSSIBLE DEFENCES Prescription

Prescription was perhaps the most obvious defence in these circumstances, since racing had been going on at the site for decades. The court held that a right to emit noise, if sufficiently loud and constant over a twenty-year period, could be constituted as a positive easement, capable of becoming established by prescription.4

Paras 28-46 per Lord Neuberger; see also J Murphy, The Law of Nuisance (2010) paras 5.13-5.15.

Here, however, prescription did not operate because the defendants could not prove that their activities caused a nuisance of this order to the claimants’ property over the requisite time-frame – the evidence was of intermittent complaints only before the claimants moved to “Fenland” in 2006.5

Paras 145-146 per Lord Neuberger, although it was accepted that a two-year interruption in the defendants’ activities was not of itself sufficient to halt the prescriptive clock (para 140).

Scots law would tackle this question from a different premise. Although the category of existing positive servitudes may, exceptionally, be extended,6

Moncrieff v Jamieson 2008 SC (HL) 1; see also Title Conditions (Scotland) Act 2003 s 76 for servitudes created in writing after 28 November 2004, abolishing the rule that they must be of a “known type”.

the prevailing view is that a praedial servitude right to create excessive noise would not be recognised.7

D J Cusine and R R M Paisley, Servitudes and Rights of Way (1998) para 3.39, arguing that noise “arises directly from personal behaviour” and cannot therefore be “made into a real right”.

 At the same time, negative prescription might come into play, so that the right to restrain nuisance by interdict might be extinguished by the long negative prescription under the Prescription and Limitation (Scotland) Act 1973.8

On negative prescription in this context see Harvie v Robertson (1903) 5 R 338 at 343 per Lord President Balfour, although the court also referred to the defender establishing “a prescriptive right to use his own property in the way he is using it now”, at 344 per Lord Kinnear.

 If this right is seen as the correlative of an obligation upon the nuisance-maker to abate, it falls within the ambit of section 7.9

See discussion in N R Whitty, “Nuisance”, in The Laws of Scotland: Stair Memorial Encyclopaedia, Reissue (2001) para 123; D Johnston, Prescription and Limitation, 2nd edn (2012) para 7.14.

 The logical consequence is arguably that the obligation recurs whenever the nuisance is created,10

See Stevenson v Pontifex & Wood (1887) 15 R 125 at 129 per Lord President Inglis, observing: “he who commits the nuisance is under a constant legal obligation to abate it, and so long as he fails in performing that legal obligation he is every day committing a fresh nuisance”.

 which means that the prescriptive clock is constantly returned to zero and the pursuer must instead seek a remedy in the law of acquiescence.11

See E C Reid and J W G Blackie, Personal Bar (2006) paras 18.13-18.17.

 The approach followed by the courts has been rather different, however. In the only comparable recent case, Webster v Lord Advocate, the court appeared to accept that what was at issue was simply a “right relating to property” and therefore section 8 would be applicable.12

1985 SC 173; see in particular the judgment of the Lord Ordinary, Lord Scott, 1984 SLT 13 at 16.

 This is in line with the analysis in the early twentieth-century case of Harvie v Robertson 13

(1903) 5 R 338 (cited as mirroring the South African law in R G McKerron, The Law of Delict, 7th edn (1971) 233).

 in which the pursuer had only recently taken exception to a nuisance that had commenced sixty years previously. In refusing interdict, the court ruled that the right of action began with the nuisance and that prescription had begun to run as of that point. Johnston similarly distinguishes the right to seek reparation and the right to seek abatement of a nuisance and suggests that prescription may run on the latter from the time when the nuisance first occurs.14

Although a new right arises, and the prescriptive clock returned to zero, as soon as...

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