Watson and Others v Croft Promo-Sport Ltd
| Jurisdiction | England & Wales |
| Judge | The Chancellor,Lord Justice Richards,Lady Justice Hallett |
| Judgment Date | 26 January 2009 |
| Neutral Citation | [2009] EWCA Civ 15 |
| Docket Number | Case No: A2/2008/1108 & 1089 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 January 2009 |
[2009] EWCA Civ 15
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
Mr JUSTICE SIMON
7NE90066
The Chancellor of the High Court
Lord Justice Richards and
Lady Justice Hallett
Case No: A2/2008/1108 & 1089
MR DAVID HART QC & MR JEREMY HYAM (instructed by Messrs Richard Buxton Environmental & Public Law) for the Appellant
MR RICHARD JONES QC & MR GORDON WIGNALL (instructed by Cobbetts LLP) for the Respondent
Hearing dates: 15 January 2009
The Chancellor:
Introduction
The Croft Motor Circuit, covering about 195 hectares on the site of the Croft Aerodrome built in World War II at Dalton-on-Tees, near Darlington, Co. Durham, is occupied and managed by the defendants, Croft Promo-Sport Ltd. 300m to the north of the circuit, at Vince Moor East, lie the houses owned and occupied by the claimants, Mr and Mrs Watson and their daughter Mrs Wilson. On 16th March 2006 the claimants instituted proceedings against the defendants alleging that the use of the circuit by the defendants gave rise to excessive noise and constituted a nuisance. They sought an injunction to restrain continuation of the alleged nuisance and damages as compensation for its commission in the past.
The claim was defended by the defendants on a number of grounds. In particular they contended that, although their activities did cause noise and some discomfort and inconvenience to the claimants, there was no actionable nuisance because their use of the circuit was reasonable having regard to the nature and character of the area arising from the grant of planning permission in 1963 and 1998. In addition they claimed that if, contrary to that and their other defences, actionable nuisances had been caused the claimants should not be granted any injunction to restrain its future commission.
The action was tried by Simon J in Newcastle over six days in January 2008. In addition to hearing oral evidence from the claimants, the defendants and others, Simon J viewed the circuit and its immediate surrounding area, including the claimants' houses. On 16th April 2008 Simon J handed down his judgment setting out the reasons for his decisions, amongst others, that (1) the nature and character of the locality had not been changed by the planning permissions granted in 1963 or 1998 but remained essentially rural, so that (2) the activities of the defendants did constitute an actionable nuisance, but that (3) it was not an appropriate case for the grant of an injunction. In the event he awarded damages of £109,600 to Mr and Mrs Watson and of £40,000 to Mrs Wilson as compensation for the diminution in value of their properties and loss of amenity.
Both parties now appeal from the order of Simon J with the permission of Jacob LJ. The defendants contend that the judge was wrong on issue (1) and, for that reason, on issue (2). They submit that the action should have been dismissed. The claimants, by contrast, are content with the judge's decisions on issues (1) and (2) but submit that, given those conclusions, the circumstances did not justify his refusal of an injunction to restrain future nuisance so that he was wrong on issue (3). I will, in due course, consider the contentions of the defendants first and then, in the light of my conclusion in respect of issues (1) and (2), the claimants' submission that the judge should have granted injunctive relief. First, it is necessary to set out the facts and the judge's conclusions in a good deal more detail.
The Facts
As I have indicated, Croft Aerodrome was built in WWII and covers some 195 hectares. Between 1949 and 1957 it was used intermittently for car race meetings. In addition in 1951 it was designated as a relief airfield. In 1962 the then owner of the airfield applied for planning permission for a change of use so as to permit motor trials, motor and motor cycle races and other sporting events, including pedal cycling and athletics and use by aircraft, helicopters and gliders. The first application made in July was refused on grounds of anticipated noise. A second, amended, application was made in September. In the letter accompanying the amended application it was explained that the application had been amended so as to limit the use to not more than four race meetings per annum for formula cars in order to satisfy the Croft Council. This application was also refused by the local planning authority. The applicant appealed, a local enquiry was held in March 1963 and in his report to the Minister dated 28th April 1963 the Inspector recommended that the appeal be allowed.
In his report the inspector set out the rival contentions of the parties. He found as a fact that there was a need for a motor and motor cycle racing track in the North East. He noted that the only objection of the local planning authority was on grounds of noise. In his conclusion he indicated that he had been impressed by the evidence of need for the proposal and the apparent convenience of the site to satisfy that need. He continued:
“In my opinion it has not been demonstrated that the disturbance to the public due to noise would be sufficient to justify rejecting the proposal, provided the use is restricted by the conditions which the appellant indicated would be acceptable.”
The Minister accepted the recommendation of his Inspector and in a decision letter dated 15th August 1963 granted planning permission for:
“(a) the use of that part of Croft Airfield…shown on the plan submitted with the application for motor and motor cycle events, for driving tuition and as a sports centre…”
There followed a number of conditions and further permission as set out in paragraph (b) none of which is material. Neither the permission granted in paragraph (a) nor the conditions attached to it reflected the restriction to not more than 4 race meetings a year to which the letter accompanying the amended application had referred.
From 1963 to 1979 the part of the airfield to which the permission extended was used for motor racing on not more than 20 racing days a year together with additional days of practice associated with the racing days. In 1979 the airfield, including the racing circuit, was sold. In 1981 the new owner applied for planning permission for the formation of spoil heaps of concrete and stone from the old runways which would arise if his intention to return the airfield to agricultural use was implemented. Such permission was granted but not implemented. In the period 1979 to 1994 there was no motor racing on the airfield except for rallycross on 10 days a year and some engine testing on other days. (Rallycross consists of racing modified production cars on a mixture of loose and sealed surfaces.)
By about 1994 the defendant had acquired a leasehold interest in, at least, that part of the airfield occupied by the circuit. It implemented the planning permission granted in 1963 by resurfacing the circuit and certain other works. In May 1995 there was held what was called the Croft Renaissance Meeting. In late 1996 and early 1997 the configuration of the circuit was changed. Motor racing recommenced in April 1997 under the auspices of the Croft Classic and Historic Motorsport Ltd to which a management contract had been awarded by the defendant in 1996.
In September 1998 there was a further public enquiry in relation to a deemed refusal of permission for the removal of the conditions imposed in 1963 and for other matters. After the hearing, on 8th October 1998, the defendant, as lessee, the freehold owner of the airfield and circuit and their mortgagee executed a Unilateral Undertaking made under s.106 Town and Country Planning Act 1990 for the regulation of the circuit for motor and motor cycle events, for driving tuition and as a sports centre. The defendant agreed to ensure that no vehicle using the circuit should exceed certain maximum noise levels and that the use of the circuit for motor and motor cycle events should be limited by reference to noise levels measured at a defined point on the circuit. The details are not material. It is sufficient to summarise them by reference to type of event, noise level and frequency as follows:
| Event | level | frequency |
| N1 | under 95dBA | no more than 10 days |
| N2 | 93dBA | 40 |
| N3 | 85dBA | 70 |
| N4 | 78dBA | 110 |
| N5 | 70dBA | unlimited |
By his letter dated 26th October 1998 the Inspector allowed the appeal. In paragraphs 7 to 16 he rejected the argument that the permission granted in 1963 was subject to the limitation to not more than 4 race meetings a year expressed in the letter accompanying the amended application but not carried forward into the permission actually granted. In paragraphs 17 to 22 he rejected the argument that the 1963 permission had been abandoned. In paragraphs 24 to 32 he considered the issues. He concluded that
“the project would seriously diminish residential amenity in a rural area especially in the summer and at weekends.”
In paragraphs 33 to 42 he referred to other material considerations. These included the 1963 permission, the s.106 Agreement and its detailed terms. In that connection he considered that:
“[37] Bearing in mind the very wide planning use rights which the site now enjoys, I am very firmly convinced that the project would strengthen significantly the ability of the local planning authority to control noise at this long established circuit.
[38] By the s.106 Agreement...
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