Nuisance and Planning

Published date01 July 1993
Date01 July 1993
DOIhttp://doi.org/10.1111/j.1468-2230.1993.tb01888.x
The Modern Law Review
[Vol.
56
disclosure. Though Mr Heseltine denied that he was expected to be involved in
the conduct of the trial when signing the certificate,” both he and Mr Riflcind were
at pains to point out that the prosecution was abandoned only because of the evidence
of
Alan Clark and not because the documents were dis~losed.~~ This may be
literally true as a matter
of
timing, but there can be no doubt that the documents
disclose highly embarrassing Government complicity in secretly relaxing the guide-
lines for exports to Iraq.39 It is the use of public interest immunity to hide this
embarrassment which is the worst aspect of the
affair.
It may be salutary to remember
in
this
context that President Nixon claimed executive privilege when asked to produce
the Watergate tapes during the
trial
of his staff, a claim that was resoundingly rejected
by the
US
Supreme Court.40 Whether
this
analogy can be pressed any further
depends on the outcome
of
the inquiry into the Matrix Churchill affair being
undertaken by Lord Justice Scott.41
Nuisance and Planning
Jenny Steele*
and
Tim
Jewell*
Where a commercial venture has developed pursuant to and within the terms of
a permission from the appropriate planning authority, can an action in nuisance
be brought which would effectively close it down? This is a simple question, but
its importance should not be underestimated.
Gillingham
BC
v
Medway
(Chatham)
Dock
Co
Ltd’
was a first instance decision
of Buckley J. Its particular facts were unusual and, although leave to appeal was
granted planning permission for the operation of a commercial dockyard in part
which it raises will therefore have to wait, but those issues are of fundamental
importance and are certain to arise again. Beyond the distinction between statutory
authority and planning permission, and their relative effects in the law of nuisance,
the inescapable question is whether the tort
of
nuisance can continue to exist alongside
other mechanisms for the regulation
of
land use.
In
1982,
the closure of the naval docks at Chatham threatened the local area with
economic decline and severe unemployment. In
1983
,
Gillingham Borough Council
granted planning permission for the operation of a commercial dockyard in part
of’the old port. This commercial venture was no doubt regarded as being in
the
best interests of the commuhity, and it was accepted that the docks would (and must,
if to be commercially viable) operate around the clock.
In
1988,
the same Council initiated proceedings in public nuisance against the
dock company, apparently in order to protect the interests of residents affected by
the noise of heavy goods vehicles going
to
and from the port between the hours
37
38
39
40
41
*Lecturers
in
Law, University
of
Southampton.
See
supra
n
3,
col
649.
ibid
cols
650
and
707.
See
The
Guardian,
13
November
1992.
US
v
Nixon
(1974)
418
US
683.
See Attorney-General’s statement,
supra
n
2.
1
[1992] 3
WLR
449.
568
0
The
Modern
Law
Review Limited
1993

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