Supreme Court's New Approach to Remedies for Interference with Property Rights, Exercises of Private law

Download Supreme Court's New Approach to Remedies for Interference with Property Rights and more Exercises Private law in PDF only on Docsity! Summary Supreme Court ruling heralds a fresh approach to the remedy available for interference with property rights. Supreme Court ruling heralds a fresh approach to the remedy available for interference with property rights The 20-second summary The Supreme Court, in a noise nuisance claim brought by residential house owners against owners of a neighbouring motor cross race track, took the opportunity to offer guidance on when it is appropriate to award an injunction or damages in lieu when property rights are interfered with, and also commented on the appropriate measure of damages in nuisance claims (including therefore rights of light).  The case offers these rays of hope to developers: There is no longer a presumption (at least in cases of impact to commercial properties) that any interference with property rights (no matter how small) is to be prevented by an injunction.  Rather, the Shelfer test should be applied more flexibly in future, with everything taken into account including the wider public interest and the grant of planning permission. There are some helpful dicta about the basis of calculation of damages so that we may now see a shift back to damages based on diminution in value rather than profit share. This will take some time to play out but will be helpful where extortionate sums are being demanded for a relaxation or release of rights. Background March 11, 2014 Injunction discretion – a paradigm shift? Page 1 of 5 Private nuisance arises where a private property owner carries out a legitimate activity on his own property which interferes with the reasonable use and enjoyment of a neighbouring owner. Where nuisance is established, the neighbouring owner is entitled to claim an injunction to prevent the nuisance and/or damages.  The nuisance claimed here was nuisance in the form of nuisance by noise, rather than actual injury to the neighbouring property, such as removal of support, loss of light, or discharge of noxious material, but the principles enunciated by the Supreme Court apply across the full range of private property nuisance claims, and indeed wider property interference claims. In examining the defences to be applied in establishing whether an activity amounts to a nuisance, the Supreme Court concluded that: It is not a defence to show that the claimant acquired or started to occupy his property after the nuisance activity had started.  A nuisance claim runs with the land if the claimant’s use and enjoyment of the property remains the same as that of the previous owners. In assessing the established pattern of uses in the locality, so as to measure whether the activity amounts to a nuisance (“what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey” Thesiger LJ in the 1879 case of Sturges v Bridgman), the defendant is entitled to bring into account his own activities in establishing those patterns of uses but only to the extent that his activities are not unlawful or otherwise give rise to an actionable nuisance; but if they do so, they must be discounted. It is not a defence to show that the activity in question has the benefit of planning permission; planning permission for an activity does not cut down private law rights.  Nevertheless, the terms of a planning permission regulating the conditions for an activity may be relevant evidentially in assessing the pattern of uses in the locality or on the question of what the appropriate remedy may be. It is possible to acquire a prescriptive right to create a nuisance, in the same way as it is possible to acquire other prescriptive rights (e.g. rights of way or rights of light).  So, in principle, it is possible for a property owner creating a nuisance to legitimise that activity as a prescriptive easement if the activity is carried on and positively asserted, against the neighbouring property owner ‘as of right’ for over 20 years. Page 2 of 5