Lawrence (Katherine) and Another v Fen Tigers Ltd & others

Hearing dates: 13th, 14th and 15th December 2011 and 16 th February 2012

This judgment is in seven parts, namely,

Part 1. Introduction,

Part 2. The Facts,

Part 3. The Present Proceedings,

Part 4. The Appeal to the Court of Appeal,

Part 5. The Law,

Part 6. The Planning Permission Issue,

Part 7. The Application for Remission

Part 8. Conclusion.

This is an appeal by the second and third defendants against a finding that noise generated by motor sports which they organise constitutes a private nuisance. One of the central issues in this appeal concerns the implications of the fact that the various motor sports are being carried on with the benefit of planning permissions and also a certificate of lawful use.

I should begin by explaining the various forms of motor sport which are in issue. "Speedway racing" means racing speedway motorcycles over several laps of a circuit. "Stock car racing" involves racing between various classes of typical road cars, which have been modified to make them safer to race. "Banger Racing" is a form of stock car racing, but it involves using older and less road worthy vehicles. "Motocross" means racing motocross motorcycles on an undulating track.

In this judgment I shall refer to the Town and Country Planning Act 1990 as "the 1990 Act".Section 171B of the 1990 Act provides:

"171B Time limits.

(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.

(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.

(3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach."

Section 191 of the 1990 Act provides:

"191 Certificate of lawfulness of existing use or development.

(1) If any person wishes to ascertain whether —

(a) any existing use of buildings or other land is lawful;

(b) any operations which have been carried out in, on, over or under land are lawful; or

(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,

he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.

(2) For the purposes of this Act uses and operations are lawful at any time if —

(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and

(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.

…

(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.

(5) A certificate under this section shall—

(a) specify the land to which it relates;

(b) describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class);

(c) give the reasons for determining the use, operations or other matter to be lawful; and

(d) specify the date of the application for the certificate.

(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed."

It can be seen that a certificate of lawful use issued under section 191 of the 1990 Act has the same practical effect as a grant of planning permission for that use of the property.

The Town and Country Planning (General Development Procedure) Order 1995 at the relevant time required each local planning authority to maintain a planning register, which is open to public inspection. The planning register contains details of planning permissions granted and also details of certificates of lawful use which have been issued.

I shall refer to the Environmental Protection Act 1990 as "the EPA".Section 79(1) of the EPA defines statutory nuisances. These include:

"(g) noise emitted from premises so as to be prejudicial to heath or a nuisance".

Section 80 of the EPA requires the local authority to serve an abatement notice on a person responsible for a statutory nuisance if it is satisfied that a statutory nuisance exists, or is likely to occur or recur, and that person can appeal to a magistrates' court.Section 82 allows a private complainant, not a local authority, to bring proceedings for statutory nuisance in a magistrates' court against a person who is causing a statutory nuisance.Section 82 (6) requires that before bringing such proceedings the complainant must first serve a notice on the intended defendant. That notice gives the defendant an opportunity to abate the nuisance.

Section 80 (7) and section 82 (9) of the EPA state that in proceedings for statutory nuisance it shall be a defence "to prove that the best practicable means were used to prevent, or to counteract the effects of, the nuisance".

After these introductory remarks, I must now turn to the facts.

Mr. Terence Waters is a farmer and landowner in the Mildenhall area. In 1975 he obtained planning permission to construct a sports complex on part of his land, namely a field by the junction between Hayland Drove and Cooks Drove just outside the village of West Row. Mr. Waters constructed a stadium with associated facilities, surrounded by banks and trees. I shall refer to this as "the Stadium".

Once the Stadium was constructed Mr. Waters entered into an arrangement with a company called Fen Tigers Ltd, under which that company used the Stadium for speedway racing. A speedway racing team called "the Fen Tigers" was formed. In 1979 the Fen Tigers won the British National League Championship for speedway racing. It appears from press articles and other contemporaneous documents that this was a cause for considerable local celebration.

As time went on, additional activities were introduced at the Stadium. Stock car racing and banger racing began in 1984. Greyhound racing began in 1992.

The local councils appear to have been supportive of these activities. In 1979 both the Mildenhall Parish Council and Forest Heath District Council presented the Fen Tigers with certificates congratulating them on their success. On 25 ^th July 1997 the Forest Heath District Council issued a Certificate of Lawful Use, stating that stock car racing and banger racing on not more than 20 days per year had become an established use of the Stadium; it was therefore lawful within section 191 of the 1990 Act.

In 1992 Mr. Terence Waters entered into an arrangement with Mr. Stuart Nunn, a former Motocross British Champion. Under this arrangement a Motocross Track ("the Track") would be constructed on land to the rear of the Stadium. That land is and was at all material times owned jointly by Mr. Terence Waters, his wife Margaret and a local farmer, Anthony Morley.

On 4 ^th March 1992 Mr. Waters and Mr. Nunn applied to Forest Heath District Council for planning permission to use the land to the rear of the Stadium as a motocross track. That application was supported by the Eastern Council for Sport and Recreation for three reasons, namely:

"a) shortage of such facilities in the region. The applicants' site at Chippenham has had a regional significance to motocross participants.

b) the applicants have experience of operating such a track and offers close participation with the Local Planning Authority to ensure minimum effect on the neighbourhood.

c) sensible landscaping and shared facilities with the speedway stadium will minimise effects."

In their report on the planning application the council's officers commented as follows:

"OFFICER...