A. Locality and Costs of Avoidance

Allan Beever has convincingly argued that considerations of locality can be relevant to whether the defendant's interference is unreasonable because different localities impose different costs of avoiding an interference upon defendants.Footnote ³⁵ In essence, the argument is that it may be a very minor incursion on the defendant's liberty in a sparsely populated rural area not to cause noise of X dB at the point of interference, but a very significant one in a densely populated city area, with considerable background noise already lawfully in existence. For instance, suppose that the level of permissible interference were notionally set at 30 dB at the point of interference in both city areas and sparsely populated rural areas. Given the distance between neighbouring properties, this would allow defendants in rural areas to create enormous amounts of noise on their land, while being potentially very restrictive to city-dwellers. A differential level of permissible interference, by contrast, would reflect the different costs of non-interference for defendants.

Consider cities – in cities, there will be a very large number of acts which, considered individually, do not amount to a private nuisance. The occasional use of a car or walking down a street talking could not normally be considered wrongs. However, when there is a great multitude of such individually lawful acts, there can exist a large amount of lawful background noise. In view of this, it might be reasonable for the defendant to argue that the parties’ rights have to be determined against the background lawful noise created by multiple people, such that each person is entitled to slightly greater leeway vis-à-vis the other, so that their liberty to do ordinary valuable activities on their land is not overly curbed. In essence, the defendant's argument is that, given the nature of their surroundings, everyone needs more leeway in order to allow them to do ordinary valuable activities on their land.Footnote ³⁶

It might be objected that this argument problematically focuses on the defendant's liberty at the expense of the claimant's security: what concern is it of the claimant's that it is more difficult for the defendant to reduce its level of interference in some situations? But the point is rather that, in order to secure the basic goods which property rights serve for both claimant and defendant, each needs to be given some elbow room – some degree to which it is permissible to interfere with the other's amenity. Unless each party is given leeway in the level of mutual permissible interference, each will be much worse off than if no degree of interference were permitted. In this, reciprocal, way, the cost to the defendant of not being able to do certain things is relevant to the issue of reasonableness in so far as this is objectively, mutually, beneficial to the parties. Moreover, the degree of necessary normative elbow room in the use of one's property will plausibly vary depending upon the physical closeness of adjacent properties and the degree to which they are insulated from each other. If we live 300 yards apart, and I am faced with a recurrent 40 dB of noise from your property, this must be because you are creating an enormous amount of noise. You could hardly claim that the permission to create this level of noise is necessary so that each of us is secured a minimal liberty to use our property.Footnote ³⁷ Or suppose C and D live very close together and have thin joining walls whose soundproofing cannot be improved except at exorbitant cost. Each is exposed to substantial levels of noise by the other's doing everyday, ordinary, tasks, such as washing up or watching TV. C and D should not be held to be committing a nuisance against each other.Footnote ³⁸

This argument has the following two main virtues as an explanation of the law. First, it can explain why the locality principle does not apply to physical damage to the land cases (or rather, why the considerations behind that principle lead to the conclusion to that physical damage to the land is wrongful independent of locality).Footnote ³⁹ This is because it is unlikely to be mutually beneficial for both parties, in terms of the basic goods which their property rights ought to serve, to be permitted to inflict physical injuries of any kind upon each other.Footnote ⁴⁰ Second, on this account, although there is a variance in the level of permissible interference from locality to locality, this is a reflection of the same normative principle being applied to different factual situations – each person is entitled to the same balance of their interest against the defendant's interest, but how this balance is struck in concreto varies depending on the factual circumstances; to this extent, the concern of unequal rights is assuaged.

The cost explanation is of limited scope, however. It explains why permissible levels of interference with amenity can legitimately vary from sparsely populated areas compared to densely populated (difficult-to-insulate) areas where people live in very close proximity. But this does not explain why the standard varies between two equally densely populated areas, where one is an industrial area, while the other is residential. In short, the relevant costs of avoidance may be the same in two areas, yet, by virtue of their different “characters”, landowners receive differential protections in private nuisance. The cost explanation also seems inapt to explain why the fact that the defendant's activity is not ordinary in a particular area, even if it creates the same level of noise as other activities in the area, could be impermissible under the locality principle.Footnote ⁴¹ We must, therefore, turn to consider other possible explanations if the principle is to be justified in its current form.

B. Individual Consent

If A buys land next door to B, C, D, E and F’s factories, it might be said that A consents to a greater level of “normal” noise than if A had bought land in a quiet rural village. Thus, in assessing whether an interference constitutes a nuisance against A, it is assumed that a greater level of noise is non-wrongful than if A had bought the land in a village.

This explanation fails. First, it can happen that a locality changes incrementally over time, with the result that an initially rural area becomes industrialised; residential users can then become bound by the new standard, even if there is no specific indication of consent. Second, even if A broadcasts her non-consent to the noise produced by the factories, the locality will still be defined to take into account the normal operating noise of the factories. Or, if A builds a factory in a rural village, A’s activities will be assessed by the standards of a rural village, even if A clearly refuses to accept those standards. We could say that A will be “taken” to consent in these cases, but fictional consent is hardly an explanation. We then want to know why we should “take” A to have consented. Third, consent alone is an incomplete explanation: even if A’s consent removes A’s objection to the enforcement of a local standard, we still need a positive reason for doing so.

We can, however, imagine a world in which individual consent, or something close to individual consent, plays a normative role in justifying the locality principle. If people had adequate opportunities to avoid becoming bound by local standards, and those local standards were reasonable, then they could not reasonably object to being bound by them, when they move to that area or remain in the area. However, it is not the case that, as a general matter, and particularly in the case of residential uses of land, individuals have reasonably adequate opportunities to locate in particular areas, or that their moving away would be not be very costly.

C. Community Consent

Individual consent will not do as, quite simply, an individual can be held to the locality's standards even without their actual consent. But perhaps the locality principle can be justified by reference to the consent of the community as a whole.Footnote ⁴²

Suppose we understand community consent in broadly majoritarian terms as “general acceptance” within a locale, expressed implicitly through actual uses. Ultimately, this view is subject to the same problem as the individual consent explanation. The problem is that anyone's (be it one individual's, or a majority of individuals’) actual consent seems superfluous to the justification of the principle, since even express communication of the lack of consent by the majority will not prevent their being held to the principle. Imagine that every property owner in central London sent emails to each other explaining that they no longer consent to the general level of background noise in the city. Intuitively, it is difficult to believe that this should have any effect on the permissible levels of noise interference with land use in the city. If people are bound even where no one consents, then consent cannot be the full explanation of the principle. Compare one's reaction to a situation where everyone who used motorways said they no longer consent to the background risk of injury due to a faultless malfunction of another's car. Each such person must be taken to have consented to this risk, regardless of his or her actual consent; we then just postpone the question of why that is the case.

More generally, the idea of consent is a mismatch with the idea of an established pattern of use. The mere fact that most people agree on the appropriateness of some use of land does not itself make it an established pattern of use. If the locality principle were just about consent, why would it matter whether this consent were manifested in a practice?

It could be objected that this matters because tacit consent is only manifested by people's conduct. This would imply, however, that express manifestation of consent should suffice to alter the character of the locality. We would then expect that an inquiry into the character of the locality would take into account the proceedings of residents’ committees or the discussions in local council meetings concerning land developments in the area, but this does not appear to be the case. It would also suggest that, in so far as local planning authorities act as elected representatives of local communities, planning permissions would have a significant effect on the character of the locality. But this has been rejected.Footnote ⁴³

D. Social Rules and Autonomy

Nicholas McBride and Roderick Bagshaw suggest that “the reason the courts attempt to characterise different localities is because different social rules of ‘give and take’ … are likely to have evolved in different places”.Footnote ⁴⁴ This view has at least two virtues. First, it explains why the courts focus upon the actual practices (rather than, say, the future use of the area as stated in a planning permission) in a particular location in applying the locality principle. This is because social rules exist only to the extent that they are practised. It thus avoids the objection made in relation to community consent theory that it focuses on what people have agreed, rather than what they are doing. Second, it seems more equipped to explain the idea that it counts against an activity that it is not the done thing around here – that is, that the activity is excluded by kind, rather than by its level of interference; this simply depends upon the content of the social rule at issue.

There are, however, significant problems with this account. First, not all social rules of give and take will be enforced by the courts: if the industrial users of a certain vicinity have developed wholly unreasonable practices of needlessly causing large levels of noise, this rule will not be enforced.Footnote ⁴⁵ Second, even if the account could insist that its concern is only with “reasonable” social rules, there still remains the question of why the courts should give effect to social rules at all in private nuisance. Sometimes, of course, the courts do rely upon external (sometimes, customary) standards in determining the contours of reasonableness in other torts, such as the tort of negligence.Footnote ⁴⁶ But the main justification for deferring to customary (or other) professional standards seems to be epistemic: the courts are rightly sceptical of their competence in formulating or assessing rules of conduct in domains requiring specialist knowledge. This type of justification does not apply here. Third, it is not clear why one would attribute normative significance to local standards of give and take as they exist in social rules and yet attribute so little significance to planning decisions, at least where local land owners have had a reasonable opportunity to participate in the planning process.

At best, then, the social rules account, as formulated, is incomplete: it awaits a justification of why the courts should defer (to some extent) to local standards in determining what is a reasonable interference. In the next section, I consider whether an efficiency-based explanation could play this role. Here, I will raise another possibility. It seems to be a desirable feature of a system of property rules that it allows, within the boundaries of reasonableness, for the formation of different kinds of community. It is good to be able to choose to locate to different kinds of areas; it enhances one's autonomy to have different forms of social life available to one. It might be that different rules of give and take are necessary in order to preserve and support different kinds of (valuable) community. If it is true that it is good to have different kinds of social existence available to one, and that different rules of give and take in land use are necessary to secure these different kinds of social existence, then there is an autonomy-based case for the locality principle.Footnote ⁴⁷

There is a further connection between the locality principle and autonomy interests. By creating the locality principle, the law allows those living in areas where a particular use predominates the possibility of planning around the fact that one person is (normally) not going to be able to disrupt the predominant land uses in the locality. In this way, they are afforded a degree of stability that would not be accorded to them if the character of each person's use individually determined the appropriate standard of interference. This benefits both residential localities and industrial localities: the former can rely to some extent on the incentives provided by the locality principle for industries not to move to their area; the latter are not held ransom to an individual who changes their use in a departure from the nature of the locality.Footnote ⁴⁸

These autonomy-based arguments may help to justify the locality principle, but their role seems limited. First, even if there is an autonomy-based value in being able to choose between different kinds of locality, this needs to be weighed against the autonomy-diminishing effect the locality principle can have on individual uses of land. If your home is afflicted with substantial levels of noise from nearby industrial works, it is small comfort that, at a global level, the property system serves your autonomy interest. Further, it seems to me that, given the costs of relocation, and the relative permanence of several forms of land use, one generally has greater reason to value autonomy protection in relation to one's enjoyment of acquired land than to value having different localities wherein to locate. Moreover, for many people, the existence of several different kinds of locality has no practical value, because they do not have the resources to relocate. Second, it seems somewhat doubtful whether some applications of the locality principle really concern valuable forms of social existence. This somewhat romanticises the value of having industrial areas.

E. Cost Minimisation

Some activities cause more harm in some locations than in others. An industrial plant may cause more harm in a residential area than in an industrial area. In the interests of minimising harm, therefore, it may be desirable that some activities be located in particular areas.Footnote ⁴⁹ It can be argued that the locality principle, by making liability partly contingent on the nature of the area, provides some incentive for people to locate their activities in suitable locations.Footnote ⁵⁰

There is a question about whether harm minimisation is a desirable goal, and then a question about the role of private nuisance in achieving it. As to the former, an obvious concern is that a harm-minimising distribution of land uses could be an unfair one. For instance, suppose that A occupies property on a small island devoted to residential uses. Unforeseeably, A’s property breaks away from the island and accretes to another island, devoted to very noisy industrial activities.Footnote ⁵¹ It may be that locating all such uses on this island minimises harm, but unfair that A bear such a substantial cost without compensation.

This objection seems particularly apt in light of the majority's reasoning in Lawrence v Fen Tigers. According to Lord Mance, “The general public interest may have led to a particular private interest being overlooked or overridden. If it is to be acceptable to permit this, then it should at least be permitted on a basis that affords compensation”.Footnote ⁵² If the locality principle is based upon the public interest consideration of harm minimisation, is it not a logical consequence of this reasoning that it should be banished from the issue of whether the defendant has legally wronged the claimant?Footnote ⁵³ If the locality principle is based upon the public interest concern of cost minimisation, it should perhaps, therefore, be removed from the realm of liability to being at most a relevant consideration in relation to remedies.

Then there is the question of the tort's role in achieving efficient location of uses. Private nuisance is inept as a general tool for this purpose. One major reason for this is that the tort is only concerned with one type of harm – namely interference with the use and enjoyment of private land. Therefore, even if efficient location of uses were a desirable goal, private nuisance alone would not be an apt means of achieving it.Footnote ⁵⁴ This leaves open whether the tort has a subsidiary role to play or at least whether it should be designed in such a way as not to undermine the operation of the planning system. Whatever the merits of this position, the majority of the Supreme Court in Lawrence seems to endorse the view that private nuisance and planning law are, so far as the issue of whether a right is infringed, two separate domains, answering different questions.Footnote ⁵⁵ It may, finally, be noted in this connection that, if the locality principle were in the service of cost minimisation, it is odd that the Supreme Court in Lawrence would seek to downplay so greatly the role of planning permission in constructing the character of the locality, when this might be the best available evidence of the efficiency of a use.Footnote ⁵⁶

F. Equal Right

Gregory Keating offers an interesting argument for the locality principle:

The argument for the idea that “normal use is a natural focal point for a regime of equal right” is problematic. It is not clear why, in order for our rights to be equal, they must be rights to engage in similar activities to those immediately around us. We could conceivably each have a right not to suffer a uniform level of interference in relation to certain specified valuable activities on land, whatever our location. Keating may reply that such rights would not be “compatible” with each other. It may be that such a system would lead to more instances of rights violations, but that is not, without more, an argument against it.

G. Hypersensitive Claimants

Keating also points to a connection between the rules on hypersensitive claimants and the locality principle. A hypersensitive claimant cannot generally recover because whether an interference is substantial is normally judged from the perspective of an ordinary, reasonable, person.Footnote ⁵⁸ The fact that one person finds the smell of roses in others’ gardens physically sickening, with the result that they cannot use their own garden, does not mean, at least within the bounds of malice, that the others’ uses of their property are wrongful. As Keating observes, under both principles, there is a normative privileging of what is normal.Footnote ⁵⁹

The relationship between the two principles is not entirely clear. It might be argued that the objective test of substantial interference is locality-independent: it asks whether an ordinary, reasonable person would find the interference substantial, regardless of their locality. On this view, the hypersensitivity rule asks whether the claimant is particularly sensitive to interferences that are typical in any locality. If that is true, it might be thought that the justification of the principle does not apply to uses which are sensitive to the particular locality, rather than “universally” sensitive. But this seems to me more a difference of degree than kind. The fact that a person is sensitive to ordinary uses in any locality means that, if interfering with that person were wrongful, everyone's ordinary use of their property is potentially wrongful. By contrast, if interference with a locally sensitive use were wrongful, then only local uses would potentially become wrongful. But the difference is just one of numbers of people affected. Presumably, a person who finds the smell of roses physically sickening would still be counted as abnormally sensitive in England, even if it turned out that the 100,000-strong population of a small Pacific island were similarly disposed. If the numbers increase, then the position could change. This shows that the difference is one of degree.

H. Conclusion to Section III

This part has argued that the locality principle can partly be explained by considerations of the costs, for defendants, of avoiding an interference. It has entirely rejected individual consent and community consent as explanations, largely on the basis of lack of descriptive fit with the law. It also rejected Keating's claim that the locality principle is a requirement of system of equal right.

A tentative scepticism was expressed in relation to the cost minimisation and autonomy arguments. These arguments, and possibly also the hypersensitive claimant argument, are in one important respect similar. They suggest that the justification of the content of the primary right in private nuisance depends upon social goods, and not merely the interests of the claimant and defendant. Although this is probably not in itself problematic,Footnote ⁶⁰ the concern remains, on the one hand, that, under the locality principle, the collective interest impinges too greatly upon what an individual's interest alone would entitle them to in relation to others, without compensation, and, on the other, that the burdens of securing collective goods are borne unequally. These problems would be less pressing if we could be confident that private nuisance secures to everyone the basic minimum of protection which their individual interest justifies, but allowed for that level of protection to be intensified by locality principle; so long as everyone's basic individual interests are equally protected, there is less of a concern about inequality beyond that level of protection. Insisting that the locality principle does not concern purely conventional standards, but requires some limits on the level of permissible interference, regardless of local practices, would assist here.

So long as property owners’ security interests receive this basic protection, there may be room to ask some to bear very small burdens for collective gains.Footnote ⁶¹ Just as some have to put up with their neighbours’ crying children, some have to put with a slightly greater degree of noise than others, depending on the locality.Footnote ⁶² But to the extent that the locality principle requires some individuals to bear very substantial interferences, which they would not be required to bear were their individual interest considered alone in determining the duties owed to them, the principle cannot be justified.

A. What Role May the Parties’ Activities Play in Constructing the Locality?Footnote ⁶³

In many cases, the claimant and defendant's own conduct will make no difference to the character of the locality: the locality will still be of the same kind, regardless of their uses. One person's activities do not normally define a locality.Footnote ⁶⁴ This is the reason having a bigger pig farm than you did before does not alter the character of the locality.Footnote ⁶⁵ As Lord Mance stated in Lawrence: “… the character of an area may be susceptible over time to gradual change and development. Each step in the process may be said by itself to fit with the existing character and be largely imperceptible, though, ultimately, the difference resulting from the totality of all the steps may be considerable.”Footnote ⁶⁶

In many cases, then, it will make no difference to set aside the individual uses of the two parties before the court.

However, this is not universally so. We ought to distinguish between two types of case:

1. (a) Where the party or parties’ conduct is so significant in its alteration of the vicinity that it may plausibly have changed the locality, with the result that pre-existing uses would, if unreasonable interference were determined by reference to the altered character of the locality, be classified as nuisances by reference to the new locality, but would not have been such by reference to the prior locality standard.

2. (b) Where the party or parties’ conduct is so significant in its alteration of the vicinity it may plausibly have changed the locality, with the result that pre-existing uses would, if unreasonable interference were determined by reference to the altered character of the locality, have to tolerate interferences that they would not have had to tolerate under the prior locality standard.

Consider type (a) (‘claimant-change’ cases). The facts of the Arizona case Spur v Del Webb Industries are illustrative.Footnote ⁶⁷ The defendant operated a cattle feedlot on and around property that had been used for farming since around 1911. The claimant developer, in the 1950s, bought 20,000 acres of farmland to develop into residential plots. The claimant alleged that the defendant's activities amounted to a public nuisance because of the odour and flies that drifted towards the southern part of the land, making that part unsuitable for residential occupation.Footnote ⁶⁸ The Arizona Supreme Court upheld the injunction, shutting down the feedlot, but ordered the claimant to pay the defendant's relocation costs because it had come to, or brought people to, the nuisance. A presupposition of the Court's reasoning is that the locality by reference to which one assesses the interference is a predominantly residential one: only if the locality had changed would the interference count as a nuisance in respect of which an injunction could be upheld.

Consider now type (b) (‘defendant-change’ cases). Suppose that a very large shopping development is built and operated by D on the edges of a rural village. Suppose that, by reference to a “rural village” standard, the noise from lorries delivering goods to units in the shopping centre at 5 a.m. would amount to a private nuisance. Finally, suppose that D argues that the interference should not be judged by reference to a purely rural village standard, but by something closer to a “small town” standard.

How should English law's locality principle apply in these situations? A first point is that it seems difficult to justify treating these situations differently. That is, if claimant changes (do not) alter the permissible standard in the locality, then defendant changes should also (not) alter the permissible standard. Beyond this, a number of solutions can be envisaged:

1. (1) no immediate change to the locality, but change after a period;

2. (2) immediate change to the locality;

3. (3) no change to the locality;

4. (4) the party's use is relevant to the determination of the locality except to the extent that it is a private nuisance.

Lord Neuberger proposed (4) in the context of type (b) situations in Lawrence.Footnote ⁶⁹ The difficulty with this formulation is that, in order to know whether the defendant's activity can be taken into account in defining the character of the locality, we already need to know whether the defendant's activity forms part of the character of the locality, since the defendant's interference is only a nuisance by reference to a specified locality. With respect, this logical problem is the death knell for this analysis.Footnote ⁷⁰ It is intolerable on rule-of-law grounds for the test of whether an element of a cause of action is satisfied to require us already to know whether the cause of action is satisfied by reference to unarticulated criteria.

In relation to one kind of type (a) situation, where the claimant alters the use of their land in such a way as to render the defendant's pre-existing use a private nuisance (to the amenity of the claimant's land), Lord Neuberger stated, obiter, that this could sometimes be a “defence”.Footnote ⁷¹ Further, the preclusion of the claim in this circumstance “could and should normally be resolved by treating any pre-existing activity on the defendant's land … as part of the character of the neighbourhood”.Footnote ⁷² Lord Neuberger is here addressing the question of how the permissibility of one pre-existing use should be affected by the arrival of one novel use. It is not clear that his remarks touch upon the Spur situation where the novel use(s) can plausibly be said to be so significant in character that it has altered the nature of the locality. Regardless of this, as a matter of consistency, it is not clear why this type of situation should be treated differently to the type (b) situation, such that the claimant's activity has a partial relevance to the character of the locality. Lord Neuberger seems to adopt option (3) for type (a) situations, but option (4) for type (b) situations.

A new start is needed. First, consider situations where only the claimant and defendant's use exist in the area. Suppose that D runs a garage in a relatively isolated area. C then later builds a residential use nearby. There are no other properties in the vicinity. It is not clear that the locality principle should have much, if any, application in these situations. Neither party can claim to be more in conformity to the predominant land use in the area. Although connected, the essence of D’s argument is more “I was here first” than “this is the way most people use their land in this area”. In this type of case, the courts ought directly to consider whether D’s interference is unreasonable by reference to the relative weighting to be given to C and D’s uses. There might be a case for giving D’s interests an extra weight given the temporal priority of D’s use, but this does not seem best expressed through the locality principle.

It might be objected that the locality principle is itself justified by the absence of a general defence of coming to the nuisance. On this view, the principle is a way of providing some protection to existing uses from novel uses. If so, then Lord Neuberger's proposal to treat a defendant's pre-existing use as “part of the character of the neighbourhood” is a logical development of the principle. This objection succeeds if the normative point of the locality principle is simply to protect pre-existing uses. But this is difficult to reconcile with the focus of the principle on a pattern of uses, and with the traditional focus on the “character” of the locality, which also suggests a concern with a multiplicity of uses. It is true, however, that the bald statement that the tort of private nuisance recognises no defence of coming to the nuisance needed qualification even prior to Lawrence: the locality principle has the consequence that novel uses are to some extent bound by pre-existing standards.

Second, consider now type (b) situations where there are a number of pre-existing land uses of a certain kind, but either a large-scale novel use (e.g. a football stadium) or a number of novel uses (e.g. a new set of shopping units) might be considered to have altered the locality. If the first, cost of avoidance, rationale were considered the sole normative justification for the locality principle, the correct approach would simply be to treat type (b) situations in the same way as situations in which only two persons inhabited the locality, by directly balancing the claimant's use against the defendant's use, bearing in mind the difficulty of avoiding the interference depends on the proximity (etc.) of the properties, without concern for how other people are using their land in the area. This is not best described as any of options (1)–(4), but would rather amount to a significant departure from the existing locality principle.

The justifications for the principle that focus more upon collective interests tend to support option (1) or (2). For instance, if the locality principle is connected to the idea behind the hypersensitivity rule – roughly the idea that the claimant's idiosyncratic use should not dictate the use to which most people put their property – then one would expect that the fact that the predominant land use in an area has changed should alter the entitlements of persons in that area. To the extent that the law remains committed to a version of the locality principle that is based on such considerations, this may be the most consistent approach. On this approach, then, the law will generally follow the changed factual circumstances in the area and departures from “the presumption of reality”Footnote ⁷³ will be limited.Footnote ⁷⁴ If this approach is applied to type (a) situations, the result may be that uses like the defendant's in Spur will become private nuisances and, subject to the possibility of damages being awarded in lieu of injunction, may be required to cease.

It might be objected that this is overly favourable to persons whose conduct changes the nature of the locality. If the defendant's own activity is always taken into account in full, then claimants will never succeed. The force of this objection can be blunted in three ways. First, it will most often be the case that one individual's conduct does not alter the nature of the locality, so the defendant's conduct can be effectively ignored. Second, even if the defendant's own activity is taken into account in full, it does not follow that the claimant must fail. Suppose that the defendant erects a football stadium near a residential area and that the football stadium is taken into account in constructing the locality.Footnote ⁷⁵ It may still be that the activities amount to a nuisance. Even if the football stadium is permitted to create more noise than an ordinary residential user of land, it may not be permitted to create as much noise as a football stadium in an industrial area. Moreover, as suggested earlier, there ought to be limits on permissible interference even in amenity cases. Finally, it may be that a distinct principle should be recognised in private nuisance to the effect that an individual's reasonable pre-existing use should have greater weight (than it would if it were a novel use) in the unreasonable interference inquiry.Footnote ⁷⁶

B. The Relevance of Planning Permission

In Gillingham Borough Council v Medway Dock Co. Ltd., Buckley J. held that, where planning permission had been lawfully obtained for a development of land, the character of the surrounding area had to be determined by taking into account the permitted development.Footnote ⁷⁷ His reasoning rested upon an analogy with the defence of statutory authority. That defence, in his view, rested (at least in part) on the basis that Parliament had ranked the public interest in a particular development of land as outweighing the private interest(s). The statutory scheme for the conferral of planning permission similarly, in his view, rested upon Parliament's delegating power authoritatively to weigh the public interest against the private for particular developments. In short, planning permission provides authoritative evidence of where the public interest lies.

The majority of the Supreme Court in Lawrence has firmly rejected this reasoning and with it the idea that planning permission can play this sort of role in determining the character of the locality.Footnote ⁷⁸ Planning permission can only function as evidence of the character of the locality, but it is not constitutive thereof.Footnote ⁷⁹ The central strands of their reasoning were as follows. First, the Gillingham decision essentially created a public interest defence to private nuisance by the back door. This was inconsistent with the general role of the public interest in private nuisance. The effect was injustice: private rights were taken away or substantially weakened without compensation.Footnote ⁸⁰ Second, the planning legislation authorising the conferral of planning permissions does not itself confer the power on planning authorities to authorise what would otherwise be a nuisance.Footnote ⁸¹ The analogy with statutory authority therefore fails. The second argument is correct, but the logic of the locality principle, if the argument of Section IV is correct, is that individual interests can receive significantly less protection by virtue of a substantial change in the nature of the locality in order to serve a collective interest. The logic of the majority's position is that the locality principle itself is problematic.

A remaining question is whether the absence of planning permission should affect the issue of whether the interference is unreasonable. Lord Neuberger suggests that the absence of permission (or the absence of the likelihood of such permission) should exclude the defendant's conduct from the characterisation of the locality.Footnote ⁸² This makes some sense in so far as the locality principle is based on the cost-minimisation idea that the defendant's activity is in a suitably placed area: without planning permission, there may not be much evidence of this. But there is a tension here. The main logic of the majority's reasoning implies that planning permission should be entirely irrelevant. If the reason why planning permission cannot authorise a nuisance is that the claimant's rights should not be cut back without compensation unless there is statutory authority, surely the defendant's private law rights should not be cut back without compensation either.