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HM Government responds to E-petition

February 3, 2015 by James Reay in BEC
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A couple of months ago we posted a link to an e-petition that wavered noise complaints made by new residents moving into the proximity of race track. The e-petition has to date over 39000 signatures. As the e-petition has received more than 10 000 signatures, the relevant Government department have provided the following response:

Introduction: The issues raised in this e-petition relate to land use in England and Wales. They touch on the law relating to the ownership of property and the private law of nuisance as well as the planning system, statutory nuisance and the regulation of public events. The underlying complaint is that new residents object to established activities within their new neighbourhood. Individuals are in general free to live in any part of England and Wales. They may buy, rent or be permitted to use a residence. On taking up residence they generally have the same rights as the existing inhabitants. Removing the rights of incomers to protect themselves against nuisances would discriminate against them and probably intensify the enquiries made by prospective residents, making transactions more complicated and expensive, as well as increasing the risk of post-transaction litigation about non-disclosure or limited disclosure.

The Government has no plans to change the law in this respect. The law of nuisance The private law of nuisance is a long-standing common law tort, or civil wrong, which affects a person’s private rights in relation to land. The law recognises that, in general, every person is entitled to the comfortable and healthy enjoyment of the land or premises owned or occupied by them. It is open to anyone with an interest in land to bring a civil claim where there has been an unreasonable interference with the use and enjoyment of their land as a result of the unreasonable use of neighbouring land by another person (the defendant).

Remedies available could include an injunction to moderate or cease the unreasonable use of the land and/or damages for the interference suffered. The standard to be applied by the courts in determining whether the claimant is entitled to a remedy is an objective one based on what is reasonable to the average person. It is also necessary to take account of the circumstances and nature of the locality in which the claimant is living.

While any benefit to the wider community arising from the defendant’s use of their land is not a defence against a claim, it may be a factor considered by the court when assessing if the use is reasonable. The fact that the defendant may have been using the land in that way before the claimant came to the vicinity is also not a defence, although the extent to which the claimant was aware of the activity when acquiring their interest in the land may be a factor that the court will consider as part of the overall picture.

Applying these general principles, the court has to reach a decision in the light of all the circumstances of the individual case. Achieving a just outcome in such civil disputes is a matter best left to the courts, and the Government has no plans to change the law in this area. There is also statutory nuisance legislation which draws on common law nuisance. It would apply to noise from premises that unreasonably and substantially interferes with a person’s enjoyment of their property or damages their health. It also places a duty on local authorities to take action, rather than individuals relying on seeking redress through the courts.

Before using this legislation, the local authority would assess whether a statutory nuisance exists based on the circumstances of the case, taking into account a range of factors including how the character of the locality (including existing noise sources) affects the situation. Individuals may also bring private actions under this legislation There are safeguards for motor sport venues in relation to complaints from nearby residents. When assessing statutory nuisance and deciding on potential enforcement action and whether mitigation measures are required, the venues – or any businesses – have a defence of best practicable means if they can demonstrate that they have done all they reasonably and practicably can to minimise the noise impact.

Planning: The planning system has an important role to play in helping to prevent nuisances occurring in the first place. National planning policy for England as set out in the National Planning Policy Framework expects local planning policies and decisions to avoid noise from giving rise to significant adverse impacts on health and quality of life as a result of new development, and mitigate and reduce to a minimum other adverse impacts on heath and quality of life arising from noise from new development, including through the use of conditions. However, it should be borne in mind that the grant of planning permission does not license a nuisance and in some cases businesses may need to do more than just comply with their planning conditions to avoid causing a nuisance.

Where appropriate, the courts will look at planning decisions and compliance with any planning decisions when assessing whether a nuisance exists. Elements of an ‘agent of change” or “right of first occupant” principle already exist within national planning policy and guidance.

The National Planning Policy Framework, for example, states that existing businesses wanting to develop in continuance of their business should not have unreasonable restrictions put on them because of changes in nearby land uses since they were established. In particular, the planning guidance supporting the Framework directly addresses the issue of noise sensitive developments, like new residential developments, where there is an existing noise source and includes advice on noise mitigation measures.

In a recent update of the guidance, the Department for Communities and Local Government underlined planning’s contribution to avoiding future complaints including through looking to developers building new homes near venues giving rise to noise to include sound-proofing in the homes.

Motor sports venues The Government fully recognises the huge popularity of motor sport in this country both on 2 and 4 wheels. Motor sport is important in terms sporting participation, volunteering, engineering, advancements in technology, job creation and wider economic benefits.

Summary: our policies and legislation, along with existing planning guidance, allow people to enjoy motor sport while managing the noise environment and without placing an unnecessary burden on businesses that operate as motor sport venues.

The Government considers that it is striking the right balance between those who welcome motor sport and those who have concerns about it. This e-petition remains open to signatures and will be considered for debate by the Backbench Business Committee should it pass the 100 000 signature threshold.

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