Lawrence & Anor v Fen Tigers Ltd & Ors [2011] EWHC 360 (QB)

[2011] EWHC 360 (QB)Case No HQ09X04659
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/03/2011
Before
HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.(sitting as a Judge of the High Court)
Between
KATHERINE LAWRENCEClaimantsRAYMOND SHIELDSClaimantFEN TIGERS LIMITEDDefendantsDAVID MITCHELL COVENTRY trading as RDC PROMOTIONSDefendantMOTO-LAND UK LIMITEDDefendantTERENCE RAYMOND WATERSDefendantANTHONY WALTER MORLEYDefendantJAMES EDWARD WATERSDefendant
Peter Harrison Q.C. and William Upton (instructed by Richard Buxton Environmental and Public Law) for claimantsRobert McCracken Q.C. and Sebastian Kokelaar (instructed by Pooley Bendall & Watson LLP for second and third defendants and by Hewitsons LLP for the fourth, fifth and sixth defendants) for The first defendant did not appear and was not represented.Hearing Hearing dates: 26, 27, 28, 31 January, 1, 2, 3, 4, 7, 8 and 11 February 2011
Judgment
[1]This action arises out of the use of two pieces of land at Hayland Drove, West Row, Mildenhall, Suffolk.[2]One of those pieces of land (“the Stadium”) is used, amongst other things, for speedway racing and for stock car, or banger, racing. It is also, apparently, used on occasions for greyhound racing, but that use is not material to any issue in this action. There are also occasional uses for exhibitions and circuses, but again that use is not material to any issue in this action.[3]The other piece of land is close, but not immediately adjacent, to the Stadium. It is laid out as a motocross track and is used for that purpose. In this judgment I shall refer to it as “the Track”.[4]The claimants, Miss Katherine Lawrence and Mr. Raymond Shields, are the freehold owners of land known as and situate at Fenland, Cooks Drove, West Row (“Fenland”). They purchased Fenland in January 2006 and moved into the property on 26 January 2006. From that date until 21 May 2010 Miss Lawrence and Mr. Shields were also the occupiers of Fenland. Miss Lawrence is a management consultant and did much work from her home. Mr. Shields is a fireman employed by the London Fire Brigade. He works shifts. The basic shift pattern is two days and nights at work, followed by three rest days.[5]Hayland Drove has a junction with Cooks Drove. The Stadium is situated at that junction, with boundaries onto both Hayland Drove and Cooks Drove.[6]The distance from the boundary of Fenland to the centre of the Stadium has been measured by Mr. Douglas Sharps, who was called to give expert acoustic evidence on behalf of the second to sixth defendants, inclusive, at 560.16 metres. Mr. Sharps also measured the distance from the boundary of Fenland to the centre of the Track. He found it to be 864.16 metres.[7]The Track lies almost due south of Fenland. The Stadium is a little further east, to the south-south-east of Fenland.[8]In his report (“the Sharps Report”) dated 20 August 2010 prepared for the purposes of this action Mr. Sharps, at paragraph 2.6, summarised what he understood to be the activities carried on at the Stadium and the Track in this way:- “1 Speedway racing. This consists of the racing of four speedway motorcycles over four laps of the speedway circuit within the stadium. The speedway circuit is separate to [sic] the inner circuit used by the stock cars. The typical duration of a single speedway race, over four laps, is 54 seconds. There are around 15 races within an event. The events are usually held on a Sunday between around 1700 and 1930 hours although, occasionally they run later. There are up to around 22 such events a year between May and October. The speedway pits are within the stadium allowing the stadium doors to be closed before the event starts. 2 Stock car racing. This consists of racing between various classes of typical road cars that have been modified to make them safer to race. Different types of road cars are employed but classes include: Ford Sierras, single-seater purpose built vehicles, “ministox” (minis with 11 to 16 year old drivers), and Reliant Robins. The racing can be either non-contact or contact. The duration of such events varies with a maximum observed of around 13 minutes. There are up to 17 races within an event. The events that we observed were on a Saturday evening between 1830 and 2300 hours and on a Sunday afternoon between 13.30 and 1800 hours (four and a half hours duration). There are around 24 events a year between March and October. The stock car pits are outside the stadium … but the stadium doors are closed before races commence. 3 Motocross. Motocross activity consists of either practice or races on an undulating track by motocross motorbikes (“bikes”). The motocross track is located to the west of the stadium … The use of the track is controlled by conditions imposed with a grant of planning permission of 3rd July 2002 (issued 22nd July 2002). These require that from April to October, inclusive, the track will be used every other Sunday. On six occasions the use is restricted to events (between 1000 and 1800 hours) whilst for the remaining Sundays the track may be used for practice (between 1000 and 1600 hours). From November to March, inclusive, the condition requires the track to be used every Sunday (between 1000 and 1600 hours) with five events during this period. On each Thursday in the year, practice is allowed between 1000 and 1600 hours. On the above occasions, from April to October, the number of riders on the track is restricted to 30. On each Tuesday of the year the track may be used as training, practice or nursery days between 1000 and 1600 hours with a maximum of 10 riders at any one time. On three Saturdays a year the track may be used to host a British schoolboy or schoolgirl championship round. The noise emissions from the site are limited to LAeq1hr= 85dB at the boundary of the site (the LAeq1hr index denotes the average noise energy level over an hour).”[9]In detail the evidence as to the use of the Stadium for speedway racing, and stock car, or banger, racing, and as to the use of the Track, departed a little from the summary in the Sharps Report, but for present purposes it seems to me that the passage which I have quoted is a helpful summary of the relevant activities.[10]The original allegation of the claimants in this action was that the use of the Stadium and of the Track in the manner described by Mr. Sharps in the passage which I have set out generated such noise as to amount to a nuisance to the occupiers of Fenland from the date Miss Lawrence and Mr. Shields moved in. However, pursuant to an order made by Edwards-Stuart J on 12 October 2010, the scope of the issues in this action was widened. The learned judge gave permission to the claimants to amend the Particulars of Claim to include allegations which were said to justify awards of aggravated and exemplary damages. In relation to the claim for aggravated damages allegations of a most serious kind were made, to the effect that the second to sixth defendants, or persons instigated or encouraged by them, had sought to intimidate Miss Lawrence and Mr. Shields into abandoning their claims in this action. The alleged intimidation included an attack, by a forklift truck, at about 3.00 a.m. on 21 April 2010 upon the motor vehicles of Miss Lawrence and Mr. Shields parked at Fenland, driving Miss Lawrence’s car into the oil tank at the property, and thereby fracturing it and causing central heating oil to flow into the bungalow (“the Bungalow”) at Fenland. As a result of that incident it was necessary for Miss Lawrence and Mr. Shields to vacate the bungalow on 21 May 2010 and live elsewhere, pending the undertaking of remedial works. At about 3.00 p.m. on 11 June 2010 it was noticed by Mrs. Antonia Le’vell that the Bungalow was on fire. The structure of the roof of the Bungalow was seriously damaged before the fire brigade could attend and extinguish the fire. It was the case for Miss Lawrence and Mr. Shields that the fire was caused deliberately as part of the campaign of intimidation which I have mentioned. There was no dispute that the attack by a forklift truck which I have described took place and equally no dispute that the Bungalow had caught fire. Each of the second to sixth defendants denied any involvement in the attack by the forklift truck or in the starting of any fire at Fenland. There was no direct evidence that any of the second to sixth defendants, or any other identified individual, had been involved in either of those events. Mr. Peter Harrison Q.C., who appeared with Mr. William Upton on behalf of the claimants, invited me to conclude from circumstantial evidence that the miscreants were the second to sixth defendants. The alleged circumstantial evidence amounted to little more than the coincidence of the attacks upon Fenland during the period in which this action was pending, coupled with the contention that there was no obvious reason, unrelated to this action, why Fenland should have been attacked. Mr. Robert McCracken Q.C., who appeared with Mr. Sebastian Kokelaar on behalf of the second to sixth defendants, did, in cross-examination, suggest to both Miss Lawrence and to Mr. Shields, possible causes for the attacks which did not involve any of the second to sixth defendants. These included revenge attacks by members of the traveller community in respect of perceived misfortunes at the hands of Miss Lawrence or Mr. Shields in the form of being reported to the police for hare coursing, and, in relation to the fire, Mr. Shields having started it himself in order to raise funds from an insurance claim.[11]There were other, less dramatic, alleged incidents in the campaign which were said to have been committed by one or other of the defendants, or family members or close associates. Most of these allegations were denied by those against whom they were levelled. That which was admitted was either said not to be the responsibility of any of the defendants or was contended not to have been undertaken with a view to dissuading Miss Lawrence or Mr. Shields from complaining about noise or to discontinue this action.[12]Counter-allegations of boorish or ill-mannered behaviour were put in cross-examination to Miss Lawrence and Mr. Shields. The purpose of this line of cross-examination, I think, was to seek to discredit the evidence of Miss Lawrence and Mr. Shields by suggesting that they were trouble-makers who had difficulty in living in a civilized fashion alongside other people by showing the degree of flexibility and taking account of the needs and wishes of others which alone make society function tolerably.[13]It seems to me convenient to defer consideration of the issues to which the alleged campaign of intimidation give rise until after considering the questions which need to be determined in relation to the primary claim, that in respect of alleged noise nuisance.[14]However, before coming to the evidence as to whether or not there was actually a nuisance, and, if so, of what form and of what duration, it is, I think, necessary to distinguish the different positions and interests of the second to sixth defendants. The case for the claimants was very much put on the basis that the second to sixth defendants acted collectively, so that each was as liable for what any one of them was alleged to have done as if he, or it, had done it himself or itself. However, for the reasons which I shall explain, that did not seem to me to be at all appropriate.

The defendants

[15]The first defendant, Fen Tigers Ltd., went into liquidation on 27 July 2010. It took no part in this action. During its existence Fen Tigers Ltd. promoted speedway racing at the Stadium.[16]The second defendant, Mr. David Coventry, and his brother, Ronald, trade together under the name “RDC Promotions”. They are the current freehold owners of the Stadium. The Coventry brothers purchased the freehold from the sixth defendant, Mr. James Waters, completion of the purchase taking place on 4 April 2008. RDC Promotions promotes stock car and banger racing at the Stadium. Banger racing, it seems, is the same as stock car racing, only using vehicles in the relevant races which are not in roadworthy condition, but have been prepared to a condition fit to participate in the race. The Messrs. Coventry seem, from the witness statement of Mr. David Coventry prepared for the purposes of this action, to have been involved in promoting stock car and banger racing at the Stadium since 1 January 1993, in the first instance operating as licensees of others. It appears that speedway racing still takes place at the Stadium, despite the demise of Fen Tigers Ltd. Who organises it was not revealed by the evidence, but it seemed that RDC Promotions at least permitted the Stadium to be used for the purposes of speedway racing.[17]The third defendant, Moto-Land UK Ltd. (“Moto-Land”) is a company of which Mr. Clifford Bastick is the managing director. Mr. Bastick and his wife are the owners of all the issued shares in Moto-Land. The business of Moto-Land is the operation of the Track. Mr. and Mrs. Bastick purchased the issued shares in Moto-Land from Mr. and Mrs. Stuart Nunn in March 2003.[18]The freehold owners of the Track are the fourth defendant, Mr. Terence Waters, his wife, Margaret, and the fifth defendant, Mr. Anthony Morley. It is convenient for the purposes of this judgment to refer to the freehold owners of the Track collectively as “the Lessors”.[19]By a lease (“the Lease”) dated 10 September 2003 the Lessors demised the Track to Moto-Land for a term of 10 years from 6 June 2003 at an initial rent of £10,400 per annum. Provision was made in the Lease for the annual rent to be increased as from 6 June 2008 to £15,600, but it seems that that increase has not in fact been implemented.[20]The covenants on the part of Moto-Land in the Lease included:- “3.11.1 Subject to the Tenant being allowed to use the Premises for the Permitted User and taking into account the Permitted User not to do or bring on or in the Premises any other act matter or thing of a dangerous noxious noisome or offensive nature or of a nature likely to cause pollution as defined in the Environmental Protection Act or which may be or grow to be a danger nuisance annoyance or disturbance to the Landlord or to the Landlord’s tenants or occupiers for the time being of any Adjoining Property [defined at clause 1.1.1 of the Lease as, all property and premises adjacent or near to the Premises together with any buildings for the time being thereon or forming part thereof …] … 3.11.2 Subject to the Tenant being permitted to use the Premises for the Permitted User not at any time during the Term to use the Premises for or in connection with any illegal immoral offensive disreputable noisy or dangerous purpose whatsoever. … 3.12 To use the Premises for the purposes of an off-road motor cycle track and (subject to obtaining any planning permission required therefore [sic]) for all purposes reasonably ancillary thereto or for such other use as the Landlord may from time to time approve (such approval not to be unreasonably withheld or delayed).”[21]The Lease also included a proviso for forfeiture, so far as is presently material in these terms:- “6 PROVISOS Provided always and it is hereby agreed that:- 6.1 Forfeiture If at any time during the Term:-6.1.1 The Rents (or any of them or any part of them) shall be in arrear and unpaid for twenty-eight days after becoming payable (whether formally demanded or not) or6.1.2 There shall be otherwise any material breach non performance or non observance by the Tenant of any of the covenants and conditions contained in this Lease and the Tenant shall not have remedied the same within twenty-eight days of the Landlord serving notice on the tenant so to do … The Landlord may at any time thereafter (although it may not have taken advantage of some previous default of a like nature and notwithstanding the waiver of any previous right of re-entry) re-enter the Premises or any part thereof in the name of the whole and thereupon the Term shall absolutely cease and determine but without prejudice to any rights or remedies that may have accrued to the Landlord against the Tenant in respect of any antecedent breach (including the breach in relation to which re-entry is made) of any of the covenants and conditions in the Lease.” Provided always and it is hereby agreed that:-

If at any time during the Term:-

[22]In his closing submissions Mr. Harrison explained that the case against Mr. Terence Waters and Mr. Morley in nuisance was that they had the ability, under the Lease, to control activities at the Track, because they could have sought to forfeit the Lease for breach of the covenants in clause 3.11.1 and 3.11.2. Mr. Harrison also submitted, more generally, that the evidence indicated that each of the other defendants was accustomed to comply with wishes expressed by Mr. Terence Waters, and he had failed to express the wish that activities at the Track and at the Stadium should not be undertaken in such a way as to produce nuisance by noise.[23]The problems with these submissions are that they are wholly unsupported by authority, and there is authority to the effect that a landlord cannot be liable in nuisance for acts of his tenant where premises, which are not themselves a nuisance, are let for a purpose which can be achieved without a nuisance, but the tenant chooses so to use the demised premises as to create a nuisance. The relevant law is conveniently set out at paragraph 20-81 of Clerk & Lindsell on Torts, 20th edition, 2010:- “The owner is liable if he has let the premises to a tenant for the purpose of doing an act likely to cause a nuisance, for example burning lime, if he has authorised his tenant to do an act which is likely to cause a nuisance, or if he has let the premises with a nuisance on them. On the other hand:
“If a landlord lets premises, not in themselves a nuisance, but which may or may not be used by the tenant so as to become a nuisance, and it is entirely at the option of the tenant so to use them or not, and the landlord receives the same benefit whether they are used or not, the landlord cannot be made responsible for the acts of the tenant. [Rich v. Basterfield (1847) 4 CB 783]”
It is therefore not enough for landlords “to be aware of the nuisance and take no steps to prevent it. They must either participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property” [Southwark LBC v. Mills [2001] 1 AC 1 at 22, per Lord Millett]. The Court of Appeal therefore struck out a claim in nuisance against a landlord for failing to prevent his tenants from subjecting the claimant to racial harassment. Nevertheless, a landlord may be liable in nuisance if he allows “trouble-makers to occupy his land and to use it as a base for causing unlawful disturbance to his neighbours”. Thus in Lippiatt v. South Gloucestershire Council, in which the defendant failed to remove travellers who had encamped on its land and caused nuisances against neighbouring farmers, the Court of Appeal refused to strike out a claim against the defendant. Where the owner is liable, that does not relieve the occupier from liability.”[24]The covenants in the Lease which I have quoted demonstrate that the Lessors did not authorise the tenant, Moto-Land, so to use the Track as to create a nuisance or to engage in noisy activities, because there were specific covenants on the part of Moto-Land not to do so. The authorities noted in the passage from Clerk & Lindsell set out above demonstrate that a landlord is not liable in nuisance merely for not seeking to forfeit a lease for breach of a covenant not to cause a nuisance.[25]During the trial it was sought to portray Mr. Terence Waters as something of an eminence grise, orchestrating all of the matters on which reliance was placed as justifying an award of aggravated damages. Although I pointed out at the commencement of the trial that it was essential, if there was to be an award of aggravated damages for nuisance, that the person against whom such award was made had been found liable in nuisance, and although I also pointed out that many of the matters relied upon as justifying an award of aggravated damages seemed, if true, to amount to harassment, a separate statutory tort, no application was made on behalf of the claimants to amend further the Amended Particulars of Claim to include any claim against any defendant in respect of harassment. Again, although, at times during the trial, Mr. McCracken characterised what was being alleged on behalf of the claimants in relation to intimidation and harassment as a conspiracy, no application was made to re-amend the Particulars of Claim to include any claim in conspiracy.[26]In the result the claims against Mr. Terence Waters and against Mr. Morley could not succeed. Those claims fail and are dismissed.[27]The Stadium is part of land which Mr. Terence Waters acquired in about 1968. Mr. Terence Waters caused the structures which enable the Stadium to be used for speedway and stock car and banger racing to be constructed. The first speedway races seem to have been held at the Stadium on 18 May 1975.[28]It appears that Mr. Terence Waters sold the freehold interest in the Stadium to Mr. James Waters in 2005, with completion taking place on 5 September 2005. By a lease dated 14 September 2005, Mr. James Waters demised the Stadium to Mr. Carl Harris. By a deed of surrender dated 28 January 2008 Mr. Harris surrendered the lease of the Stadium. According to his evidence in his first witness statement, Mr. James Waters then tried to revive the commercial activities at the Stadium, before selling it to RDC Promotions on 4 April 2008. On those facts, for the reasons which I have explained in relation to Mr. Terence Waters and Mr. Morley, it would seem that Mr. James Waters is liable only for nuisance committed at the Stadium in the period 28 January 2008 to 4 April 2008. I shall consider the evidence in relation to use of the Stadium in that period later in this judgment.[29]In my judgment, Mr. Coventry is liable for any nuisance committed as a result of activities at the Stadium since Miss Lawrence and Mr. Shields moved to Fenland, as he has, with his brother, been the operator of the Stadium throughout the period, as well as the freehold owner, together with his brother, since April 2008.[30]Moto-Land, as the operator of the Track, is, as it seems to me, liable for any nuisance committed in the course of activities carried on there since Miss Lawrence and Mr. Shields moved to Fenland.

The nature of the locality

[31]There was no suggestion in this action that the noise of which the claimants complained had actually caused any physical damage to Fenland or any of the structures built upon it. The complaints of Miss Lawrence and Mr. Shields focused on the impact of the noise alleged upon their use and enjoyment of their property. Consequently, as was common ground, it was necessary, amongst other things, to consider the nature of the area in which the activities of speedway, stock car racing and banger racing were carried on at the Stadium and in which the activities of motocross were carried on at the Track. As Thesiger LJ memorably observed in delivering the judgment of the Court of Appeal in Sturges v. Bridgman (1879) 11 ChD 852 at page 865:- “… whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so [at least in 1879] in Bermondsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, Judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private and actionable wrong.”[32]I have already described the relationship between the Stadium, the Track and Fenland. Fenland itself is surrounded by agricultural land. It is something like a mile and a half from the small village of West Row. The nearest residential properties seem to be about half a mile away, respectively up, and down, Cook’s Drove.[33]West Row lies to the south-west of the United States Air Force base at RAF Mildenhall, which is the largest United States airbase in the United Kingdom. In an e-mail dated 8 July 2010 to Mr. James Waters, Squadron Leader Richard Fryer, the RAF Commander of RAF Mildenhall, described the base and its activities in this way:- “I can’t give definitive numbers but on average … RAF Mildenhall has in the region of 18000 – 19000 aircraft movements per year. In broad terms a ‘movement’ is … a take-off, a landing, an approach to the runway or an airspace transit. In respect of Mildenhall Stadium and properties near the Stadium, each of the above movements will fly close by since the Stadium is located approximately 1.5 miles from the end of the runway and a matter of only a few yards to the south of the extended runway centreline. When landing from the west, aircraft will pass the Stadium area at approximately 450 – 750 ft on their approach to Mildenhall. When taking off to the west, aircraft will normally be higher, perhaps 1000 ft or more, however at take off thrust they will be relatively noisier.”[34]No more detailed evidence as to the operation of RAF Mildenhall or the area around it by military flying was put before me. That was unfortunate.[35]There was no breakdown of how many movements consisted in taking off, how many in landing, how many in approaching the runway, and how many in flying over the area. Aircraft flying over the area would presumably be flying at some height, and therefore not as noisy as aircraft taking off or landing.[36]It was unclear whether “an approach to the runway”, was preparatory to taking off, preparatory to a landing or some sort of exercise on the ground not involving flight. If and insofar as “an approach to the runway” was by an aircraft about to take off or about to land, there seemed to be a risk of misunderstanding of the number of operations actually undertaken involving RAF Mildenhall. It may be that, in the military aircraft world, drawing a distinction between an aircraft approaching a runway, prior to taking off (one movement), and then taking off (a second movement), is sensible, but it seemed to have little purpose in terms of assessing the impact upon someone who had to listen to the entire operation of approaching the runway and then taking off. If an approach to the runway prior to taking off is a movement, and approaching the runway prior to landing is a movement separate from the act of landing, in real terms each take off is counted as two movements, as is each landing.[37]There was no evidence as to whether any take offs or landings at RAF Mildenhall were concentrated on particular days of the week, or particular times of day. 18,000 divided by 365 produces an average 49.315 movements per day. 19,000 divided by 365 produces an average of 52.055 movements per day. The average of those two figures is 50.685. If one divided that figure by 24 hours in a day the result is 2.112 movements per hour. There was some suggestion in the evidence of the acoustic expert called on behalf of Miss Lawrence and Mr. Shields, Mr. Michael Stigwood, that flying from a military airfield is concentrated on the days Monday to Friday, inclusive, and the hours 7.00 a.m. to 11.00 p.m. However, there was rather limited evidence on this point specific to RAF Mildenhall.[38]A copy of an Ordnance Survey map put in evidence showed that the main runway of RAF Mildenhall runs roughly north-west to south-east. A continuation of the southern side of the runway in a north-westerly direction takes one across the site of the Stadium. A continuation of the centre line of the runway in a north-westerly direction takes one between Fenland and the Stadium. Fenland itself is about two miles from the western end of the main runway.[39]There was no evidence as to whether aircraft taking off or landing at RAF Mildenhall habitually went in any particular direction. In theory an aircraft could, no doubt, as Squadron Leader Fryer envisaged, take off from the runway towards the north-west, or towards the south-east. The same options would appear to be available in relation to landing. No evidence was led before me as to what might determine in which direction the pilot of an aircraft might choose to seek to take off or to land.[40]The evidence as to actual flying hours in the vicinity of RAF Mildenhall against which to assess the information provided by Squadron Leader Fryer took the form of noise measurements made by Mr. Stigwood at Fenland, really for the purposes of assessing the noise generated by activities at the Stadium and at the Track, but on which he noted any aircraft noise which he detected, and comments from the valuation experts instructed on behalf of the claimants and the fourth, fifth and sixth defendants.[41]Mr. Stigwood took measurements on Sunday, 12 August 2007; Tuesday, 14 August 2007; Saturday 18 August 2007; Saturday, 15 September 2007; Saturday, 22 September 2007; Sunday, 23 September 2007; Tuesday, 14 July 2009; Sunday, 26 July 2009; Sunday, 13 June 2010; Tuesday, 20 July 2010; and Saturday, 24 July 2010. Copies of recordings of those measurements were adduced in evidence. The periods of time over which measurements were made varied. Some measurements were made in the evening. Obviously what was revealed in relation to aircraft activity was in the nature of a snapshot on each occasion upon which measuring took place. For what it is worth, on the eleven days on which measurements were made, and noting that the period of measurement on each of those days varied between a total of about half an hour and a total of about four and a half hours, four aircraft were recorded. Two were on Tuesday, 14 July 2009. The noise of the first was noted between 14:49:36 hours and 14:49:48 hours – in other words it lasted 12 seconds. The noise of the second was recorded between 14:53:36 hours and 14:54:00 hours, so it lasted 24 seconds. Aircraft noise was recorded on Tuesday, 20 July 2010 between 15:03:24 hours and 15:05:24 hours. Finally, so far as Mr. Stigwood’s measurements go, an aircraft was noted generating noise between 12:56:01 hours and 12:57:49 hours on Saturday, 24 July 2010. Thus, if this a fair picture, it suggests that aircraft passing overhead Fenland and generating audible noise is relatively infrequent, certainly nothing like twice an hour as the statistics might suggest, and of short duration.[42]The expert valuer instructed on behalf of Miss Lawrence and Mr. Shields was Mr. Mark Bird. He produced a report dated 31 August 2010. In his report, at paragraph 13.2, he explained that he had visited Fenland on Thursday, 22 July 2010, arriving at 10.45 a.m. At paragraph 13.5 he recorded that, “I did not encounter any incoming or outgoing flights”.[43]Mr. Rowland Beaney was the expert valuer instructed on behalf of the fourth, fifth and sixth defendants. He prepared a report dated 1 September 2010. At paragraph4.1 of his report Mr. Beaney explained that he had visited the area of West Row on Friday, 20 August 2010 and spent around an hour there from 1.45 p.m. On that occasion, “I did not notice any airplanes flying over or near Fenland when I was at the property”. Mr. Beaney returned specifically to view Fenland on Tuesday, 24 August 2010, as he recorded at paragraph4.2 of his report. He was there, he said, between 6.20 p.m. and 7.20 p.m. “Four transport planes took off from Mildenhall Airbase during the course of my visit and a further 3 airplanes took o[ff] when I was travelling”. Mr. Beaney is based in Bury St. Edmunds, which I think is about 13 miles from West Row.[44]There was some anecdotal evidence from witnesses of fact that aircraft flying from RAF Mildenhall were relatively infrequent and that the noise, as they flew over, was of limited duration. That evidence was supported by such, limited, objective evidence as there was in the form of the measurements of Mr. Stigwood and the comments of Mr. Bird and Mr. Beaney. Consequently I find that, despite the presence of RAF Mildenhall, the aircraft noise disturbance to the vicinity of Fenland was, at the material time, intermittent and, when occurring, of very short duration, a matter of a couple of minutes at most. Mr. Stigwood’s measurements appeared to bear out his contention that flying did not take place much at weekends, because that was when he made most of his measurements, and only detected one aircraft at a weekend, just before 1.00 p.m. on a Saturday. Insofar as Mr. Stigwood made measurements during the evening he did not record any aircraft noise. Although the greatest number of aircraft take-offs noted objectively were those Mr. Beaney saw in the early evening of Tuesday, 24 August 2010, it may be material that it was still daylight at that time on that date.[45]To the north of RAF Mildenhall lies a built up area including Beck Row. The substantial conurbation of Mildenhall itself lies to the south-east of RAF Mildenhall.[46]I have already observed that Mr. Terence Waters caused to be constructed the structures necessary to enable the Stadium to be used for speedway and stock car and banger racing, and that the first use of the Stadium for speedway races took place on 18 May 1975.[47]The material put before me indicated the planning history of the Stadium and the Track.[48]Outline planning permission for the construction of a sports complex, including a race track, enclosures, car park, toilet and changing room facilities at the Stadium was granted by Suffolk County Council (“the County Council”) on 27 February 1975. A condition of that planning permission was that:- “2. Unless planning permission is renewed the use permitted shall be discontinued, any buildings or structures shall be demolished and the land restored to its former use on or before 31st December 1984.”[49]A planning permission (“the Speedway Permission”) was granted on 27 February 1985, but issued on 18 March 1985, by Forest Heath District Council (“the District Council”). What was permitted was described in the permission in this way:- “Description of Development:- Retention of speedway and associated facilities upon land situate at Speedway Hayland Drove, West Row.” Hayland Drove, West Row.”[50]That permission was subject, inter alia, to these conditions:- “1. This permission shall relate solely to a sports complex for speedway racing with the following and associated facilities (previously approved by temporary consents): Grandstand cover for spectators (including bar, terracing and referee’s box); pay kiosks, pits building, balcony with stores under and concrete raised walkway; restaurant, kitchen, toilets etc. These uses are strictly in association with the speedway and no other form of commercial or industrial use shall be permitted to operate within the site. 2. This permission shall be personal to the applicant, Mr. T.R. Waters, and shall not enure for the benefit of the land. 3. No speedway racing or practising, nor any racing or practising involving mechanically propelled vehicles shall take place between the hours of 10 p.m. and 7 a.m.”[51]The use of the Track as an “OFF-ROAD MOTORCYCLE TRACK (MOTOCROSS)” was authorised by the District Council by a permission dated 30 April 1992 and issued on 28 May 1992. That grant of planning permission was subject to conditions, which included:- “1. The use hereby permitted shall cease, and the land be restored to its former condition within one year from the date of commencement of the use unless otherwise renewed by the grant of planning permission. The Local Planning Authority shall be notified of the date of commencement and be confirmed of the same in writing. Should no such notification be received by the Local Planning Authority within a period of twelve months from the date of issue of this permission the development rights hereby granted shall expire. … 5. This permission shall be personal to the applicants Mr. S. Nunn and Mr. T. Waters and shall not enure for the benefit of the land. … 10. The hours of operation of the site hereby approved shall be between 10am and 4pm on the specified days and at no other time unless a variation has previously been agreed in writing with the Local Planning Authority. …12. The use hereby approved shall operate on two days a week only, to include race days i.e. Sundays, and practice days. The practice day shall be agreed in writing with the Local Planning Authority before any development is commenced.13. Before any development is commenced, a scheme for minimising noise emission from the site, to include earth banking and fencing, shall be agreed in writing by the Local Planning Authority. Such scheme shall be implemented in accordance with a timescale to be agreed with the Local Planning Authority.”[52]A separate application was made for permission to erect structures on the Track. The District Council, on 31 March 1993, granted permission, issued on 6 May 1993, for a motorcross track, layout, toilets, control building and landscaping. Conditions subject to which that permission was granted included:- “2. This permission shall be personal to the applicants S. Nunn and T. Waters and shall not enure for the benefit of the land. … 8. The permission hereby granted is in respect of engineering operations and physical works only. The operation and use of the track shall be in accordance with the terms of consent issued under Register Index No. F/92/111 on 28th May 1992. 9. In the event of the permission granted under Register Index No. F/92/111 not being renewed, the buildings and works hereby approved shall be removed and the land restored to its previous condition within a period of 6 months from any decision being made not to renew such consent. 10. A two metres high earth bank shall be constructed along the southwestern boundary of the site in addition to the banking indicated on the approved layout plan. Such banking shall be planted in accordance with the details to be agreed in writing with the Local Planning Authority before any development is commenced.”[53]On 2 August 1994 there was a further grant of planning permission by the District Council in respect of:- “USE AS MOTORCROSS TRACK; EXTENSION OF OPERATING HOURS UNTIL 6PM ON SPECIFIED SUNDAYS; SITING OF THREE PORTABLE BUILDINGS TO PROVIDE OFFICES, REFRESHMENTS AND TOILETS; RESITING OF MOTORCROSS BRIDGE.”[54]Inevitably that grant was again subject to conditions, including:- “1. Unless planning permission is renewed the use hereby permitted shall cease and the land restored to its former use and condition on or before the last day of August 1995. 2. This permission shall be personal to the applicants Mr. S. Nunn and Mr. T. Waters and shall not enure for the benefit of the land. … 9. The use hereby approved shall operate on two days a week only to include race days i.e. Sundays and practise [sic] days. The practise [sic] day shall be agreed in writing by the Local Planning Authority before development is commenced. 10. Before any development is commenced a scheme for minimising noise emission from the site to include earth banking and fencing shall be agreed in writing by the Local Planning Authority. Such scheme shall be implemented in accordance with a timescale to be agreed with the Local Planning Authority. … 14. The hours of operation of the site hereby approved shall be between 10am and 4pm on the specified days and at no other time unless a variation has previously been agreed in writing with the Local Planning Authority. 15. The race and practice activities held on the site shall be supervised at all times, either by the applicant, Mr. S. Nunn, or his nominated representative, in accordance with the Auto Cycle Union code of practice.”[55]Permission for the continuation of the use of the Track as a motocross track was refused by the District Council on 4 October 1995 because:- “The Motorcross activity as proposed would, by virtue of the frequency of use and noise levels generated, create undue disturbance and detract unacceptably from the amenities of nearby residential occupiers, especially on Sundays.”[56]However, the District Council then granted, on 10 January 1996, permission for the continued use of the Track as a motocross track, subject, amongst others, to these conditions:- “1. Unless planning permission is renewed the use hereby permitted shall cease, and the buildings hereby permitted shall be removed and the land restored to its former use and condition on or before the last day of January 1997. 2. This permission shall be personal to the applicants Mr. S. Nunn and Mr. T. Waters and shall not enure for the benefit of the land. 3. The development hereby permitted relates to use of the land as an off-road motor cycle track only and to no other use. 4. The events and practise [sic] activities held on the site shall be supervised at all times, either by the applicant Mr. S. Nunn or by his nominated representative, in accordance with the Auto Cycle Union code of practice. 5. Unless otherwise agreed in writing with the Local Planning Authority, the track shall be used strictly in accordance with the details accompanying the amended application, namely:(i) From April to October inclusive, the track will be used every other Sunday only. Six of the Sundays during this period will be for events. The hours of operation for events during this period will be from 10am to 6pm. On other Sundays when the track is used during this period, the hours of use shall be from 10am to 4pm.(ii) From November to March inclusive, the track will be used every Sunday from 10am to 4pm. This use will include 5 event days to be completed by 4pm.(iii) every Thursday for practise [sic] days the hours from 10am to 4pm.(iv) Tuesdays as training/practise/nursery days with a maximum of 10 riders at any one time on the site and to operate from 10am to 4pm.(v) One Saturday only during the year the track shall be used, in conjunction with an approved Sunday, to hold an event to comprise a British schoolboy/schoolgirl championship round. The date for this event shall be previously agreed in writing with the Local Planning Authority and not less than one month’s prior notice shall be given to the Local Planning Authority that such an event is to be held. 6. Within three months of the date of this permission, unless otherwise agreed, in writing with the Local Planning Authority, the existing earth bank along the Haylands Drove frontage of the site shall be raised in height by 2 metres, topsoiled and seeded as indicated on the approved layout plan. … 10. On summer Sundays (i.e. during the period April to October inclusive) when the site is being used no motorbikes shall operate on the track between the hours of 12.30pm and 1.30pm. 11. Other than to call emergency services or to announce the commencements of a race, no tannoy system shall be used on the site.”[57]On 25 July 1997 the District Council issued a Certificate of Lawful Use or Development (“the Certificate”) in respect of the Stadium that there had “been regular and ongoing for a period of time in excess of ten years, prior to the date of the application for this Certificate”:- “The use of the land specified … for stock car racing (as hereinafter defined) up to and no more than twenty separate dates per annum, subject to the racing programme on any particular date commencing between 1.30 p.m. and 2.30 p.m. OR between 7.00 p.m. and 8.00 p.m. and ending (in any such case) by no later than 10.00 p.m. For the purposes of this Certificate the term “stock car racing” means (by way of limitation) stock car racing, banger racing, Ministox, Reliant racing or Hot Rod racing but excludes any other form of racing whatsoever.”[58]By a planning permission dated 9 April 1997 the continued use of the Track as a motocross track until 31 March 2002 was permitted on the conditions set out in the planning permission dated 10 January 1996, plus, so far as is presently material:- “5. … (iv) On practise on Thursdays and Sundays, during the summer period (i.e. April to October inclusive), no more than 30 riders at any one time on the site and to operate from 10am to 4pm. … 8. All vehicles using the track shall comply with current Auto Cycle Union noise regulations. 9. Records of all vehicle tests shall be kept by the track operator and produced for examination by the Local Planning Authority if required. 10. The level of noise emitted from the site shall not exceed LAeq85db over a time period of 1 hour at the boundary of the site. A system to assess compliance with this condition shall be established and maintained by the track operator and the results made available to the Local Planning Authority on request. The measurement method and locations shall be previously agreed in writing with the Local Planning Authority.”[59]The current planning permission in relation to the Track (“the Track Permission”) was granted by the District Council on 3 July 2002. It was granted without limit of time, but remains personal – now to Moto-Land. It requires personal supervision of events and practices at the site by Moto-Land. The only other difference from the conditions to which the immediately preceding grant of planning permission was subject is that now three Saturdays, rather than one, can be used to hold a British schoolboy/schoolgirl round.[60]It was common ground that the effect of the decision of the Court of Appeal in Wheeler v. J.J. Saunders Ltd. [1996] Ch 19 was that a grant of planning permission did not constitute a statutory authority to commit a nuisance. However, Mr. McCracken submitted that it did appear from passages in the judgments in that case that the character of a locality could be affected by the grant of a planning permission, or a series of planning permissions.[61]Mr. McCracken drew to my attention some observations of Staughton LJ in a passage starting at page 28D:- “One can readily appreciate that planning permission will, quite frequently, have unpleasant consequences for some people. The man with a view over open fields from his window may well be displeased if a housing estate is authorised by the planners and built in front of his house; the character of the neighbourhood is changed. But there may be nothing which would qualify as a nuisance and no infringement of his civil rights. What if the development does inevitably create what would otherwise be a nuisance? Instead of a housing estate the planners may authorise a factory which would emit noise and smoke to the detriment of neighbouring residents. Does that come within the first proposition of Cumming-Bruce LJ, that a planning authority has no jurisdiction to authorise a nuisance? Or is it within the second, that the authority may change the character of a neighbourhood?”[62]Staughton LJ went on to consider the decision in Gillingham Borough Council v. Medway (Chatham) Dock Co. Ltd. [1993] QB 343, and continued, at page 30C – E:- “I accept what was said by Cumming-Bruce LJ: first, that a planning authority has in general no jurisdiction to authorise a nuisance; and, secondly, if it can do so at all, that is only by the exercise of its power to permit a change in the character of a neighbourhood. To the extent that those two propositions feature in the judgment of Buckley J, I agree with his decision, but I would not for the present go any further than that. It would in my opinion be a misuse of language to describe what has happened in the present case as a change in the character of a neighbourhood. It is a change of use of a very small piece of land, a little over 350 square metres according to the dimensions on the plan, for the benefit of the applicant and to the detriment of the objectors in the quiet enjoyment of their house. It is not a strategic planning decision affected by considerations of public interest. Unless one is prepared to accept that any planning decision authorises any nuisance which must inevitably come from it, the argument that the nuisance was authorised by planning permission in this case must fail. I am not prepared to accept that premise. It may be – I express no concluded opinion – that some planning decisions will authorise some nuisances. But that is as far as I am prepared to go.”[63]The other members of the Court of Appeal, Peter Gibson LJ and Sir John May, agreed with the views of Staughton LJ. At page 37A – C Sir John May said:- “On the question of the possible legal effect, if any, of the grant of planning permission in the context of the alleged nuisance, in my opinion it is clear on the authorities referred to by Staughton LJ that, first, the exercise of the permission to develop granted by the local planning authority may have the result that the character of the neighbourhood changes and that which would previously have been a nuisance must be held no longer to be so: per Cumming-Bruce LJ in Allen v. Gulf Oil Refining Ltd. [1980] QB 156. In my opinion, however, the effect of the grant of planning permission cannot be treated, even in a limited sense, as the equivalent of statutory authority. As Staughton LJ has said, Parliament is supreme and can abolish or limit the civil rights of individuals. However, in general, planning is concerned with land use from the point of view of the public interest and as a generality is not concerned with private rights: see per Mr. David Widdicombe Q.C., sitting as a deputy High Court judge in the Queen’s Bench Division in Brewer v. Secretary of State for the Environment [1988] JPL 480.”[64]While it is, I think, plain, that, dependent upon the evidence in a particular case, the effect of a grant of planning permission can be to transform the character of a locality, or to affect its character significantly, it seems to me to be critical to consider the nature of the planning permission.[65]In the present case the Speedway Permission is without limit of time, but personal to Mr. Terence Waters. While it is possible that, if a modification of that condition to substitute a different person as the beneficiary of the Speedway Permission were made, such might be granted, as happened in the relation to the personal permission in relation to the Track, the possibility that the personal condition might not be modified introduces an element of contingency which it is material to notice in considering whether the character of the neighbourhood in which the Stadium and Fenland is situate has been altered from what it was before the Stadium was developed. The same point applies in relation to the fact that the Track Permission is personal to Moto-Land. The Certificate was not expressed to be issued in favour of any individual or legal person. However, it was expressed to relate to use for stock car racing, as defined, no more than 20 days use per annum, and no day’s use extending beyond the hours 1.30 p.m. and 10.00 p.m. The use of the Stadium for speedway racing permitted by the Speedway Permission was not limited in terms of the number of days, but it was limited in relation to the hours during which speedway racing or practising could take place. The Track Permission also circumscribed the days and hours of permitted use.[66]The limitations on days and hours of use of the Track, and of the Stadium for stock car racing, as defined in the Certificate, and the limitations on hours of use of the Stadium for speedway racing, are unusual features in a planning permission, as are the personal natures of the Speedway Permission and the Track Permission. These features mean that, outside the permitted hours of use of the Stadium and the Track, the area in which they and Fenland are situated is an agricultural area close to a military airfield operations from which affect the residents of the locality in the rather limited way which I have found. During the permitted hours on the permitted days to the extent that there is use of the Stadium or the Track noise is generated by the activities permitted. That will continue so long as those having the benefit of the personal Speedway Permission and the personal Track Permission wish to continue to avail themselves of those permissions or so long as any permitted variation in favour of some other person continues to be utilised. Consequently, it cannot be said that the existence of the Speedway Permission, the Certificate or the Track Permission have altered the character of the locality of the Stadium, the Track and Fenland permanently. All they have really done is to permit, at identified times on identified days, or on a set number of days per year, activities which otherwise are not permitted.[67]In those circumstances it seems to me that what was more important, in terms of considering whether the nature of the locality had been altered, and, if so, in what way, by the grant of the Speedway Permission, the issue of the Certificate, and the grant of the Track Permission, than the fact of grant or issue, was what effects had been produced in the locality as a result of the relevant grants and issue.[68]The evidence as to the use made of the Stadium for speedway races took the form of a spreadsheet produced by Mr. James Waters and exhibited to his second witness statement, dated 8 November 2010. Mr. Waters explained that the information in the spreadsheet had been generated from fixture lists in old speedway programmes. The picture presented in the spreadsheet was of variable use. In terms of numbers of days of speedway racing the picture was:- Year Number of days racing 1975 23 1976 33 1977 35 1978 35 1979 34 1980 33 1981 30 1982 32 1983 28 1984 23 1985 27 1986 27 1987 30 1988 26 1989 23 1990 0 1991 0 1992 32 1993 0 1994 0 1995 30 1996 20 1997 0 1998 21 1999 16 2000 0 2001 18 2002 22 2003 0 2004 28 2005 25 2006 27 2007 26 2008 23 2009 16

Year Number of days racing

[69]About that pattern Mr. Waters commented at paragraph 4 of his second statement:- “Unfortunately, the spreadsheet is not complete as we have not been able to obtain programmes for each of the years in question. However, I can confirm from my own recollection that speedway racing did take place at the Stadium in those years and that the number of races would have been similar.”[70]Given that there was, ignoring the years for which a zero appears in the foregoing summary, a range of between 16 and 35 days racing in any given year, it is unclear what the second sentence of paragraph 4 of Mr. Waters’s second witness statement should be interpreted as meaning. He was not asked about it in cross-examination.[71]Mrs. Barbara Thomas, who has been employed at the Stadium since 1984, was also called to give evidence on behalf of the second to sixth defendants in relation to the use which had been made of the Stadium over time. In her witness statement, dated 5 November 2010, she said:- “2. I moved to the Mildenhall area in 1984 and shortly afterwards that year I started work at the Stadium, helping the Operator, Bernie Klatt, with Speedway meetings, as by then the Fen Tigers Team were in the Second Division, with home matches nearly every week. Over time, I took on an increasing amount of responsibility at the Stadium, and since approximately 1994, I have worked full time at the Stadium, undertaking various cashier and book-keeping duties. 3. I attend almost all events held at the Stadium and, as I am required to deal with the takings each evening, I am usually one of the last staff to leave. 4. The number of Speedway events taking place at the Stadium has reduced over the years I have worked there. In the 1980s, when the Speedway team were doing well, there would have been home matches almost every week during the season which runs from March to October. This has reduced due to the Fen Tigers Team now being in a lower league, resulting in home matches only on average once a fortnight. Regular training sessions for Speedway also used to be held at the Stadium, but these stopped around 8 years ago. 5. From 1984 to approximately 2002, Speedway sessions always started at 3.30 pm on a Sunday and finished around 6.30 pm, with mid-week sessions usually starting at 7.30 pm and finishing around 10.30 pm. In the last five or so years, the operators have experimented with other start times such as 5 pm to try to encourage higher attendances. The Speedway sessions now start at 4.30 pm and finish at around 7.30 pm.”[72]The evidence of Mrs. Thomas was broadly to the same effect as that of Mr. Waters’s spreadsheet in relation to the trend in the number of speedway races at the Stadium, but she was not able to supply any detail to remedy the deficiencies in the material contained in the spreadsheet for years in which no figures were recorded.[73]Evidence as to the use which had been made of the Stadium for stock car and banger races since 1983 was given on behalf of the second to sixth defendants by Mr. Derek Smith. Mr. Smith was an interesting character. His evidence was not substantially in dispute. So far as is presently material what he said in his witness statement dated 5 November 2010 was this:- “3. I began collecting the programmes for banger racing events approximately 20 years ago and I have approximately 30,000 programmes now stored at my house covering events at more than 100 stadiums in England. Approximately 500 of those programmes relate to banger and stock car racing events that have taken place at Mildenhall Stadium. 4. I attach to this statement as Exhibit “DS1”, a copy of a schedule I have compiled by reference to my collection of programmes for events at Mildenhall Stadium. The column headed “PROG.DATE” shows the dates of the banger and stock car racing events at Mildenhall Stadium. I have compiled the list of dates from the fixtures lists contained in each of the programmes. 5. … 6. I was present at the very first stock car meeting at Mildenhall Stadium which took place on 20 November 1983. The first meetings were run by Spedeworth and after 14 September 1984, the meetings were run by Peter Bains. Vince Moody and Trackstar then took over the running of the meetings in 1987, and in 1993, the current promoters, Ron and Dave Coventry, trading as RDC Promotions, took over the organisation of the meetings.”[74]Mr. Smith’s Schedule (“the Smith Schedule”) showed that there had been one stock car race meeting in 1983, what appeared to be two in 1984, but then 22 in 1985, 19 in 1986, 23 in 1987, 4 in 1988, 16 in 1989, 17 in 1990, but none in either 1991 or 1992. In 1993 there were 27, and the annual numbers thereafter were:- Year Number of days racing 1994 22 1995 21 1996 21 1997 22 1998 23 1999 23 2000 23 2001 23 2002 23 2003 22 2004 21 2005 22 2006 22 2007 24 2008 24 2009 25

Year Number of days racing

[75]In cross-examination Mr. Smith explained that he was interested in stock car racing, and regularly attended meetings. He lived in Great Dunmow, Essex, and the Stadium was a venue which he attended regularly. He agreed with the suggestion that the lack of programmes in his collection for 1991 and 1992 indicated that there had been no stock car or banger races at the Stadium in those years. I accept that evidence.[76]It appeared that, after the commencement of the use of the Track for motocross, full advantage was taken of the permitted days and hours of use; that is to say, essentially the Track was used for motocross to the full extent permitted.[77]Mr. and Mrs. Robert Relton purchased Fenland in April 1984. They remained in occupation until they sold to Miss Lawrence and Mr. Shields in January 2006. Mrs. Relton was called to give evidence on behalf of the second to sixth defendants. She made a witness statement dated 6 December 2010 in which she said:- “4. I am unable to recall precisely when the Motocross first began at the Stadium but when my husband, Robert, became aware of this proposed activity, he expressed his concern about the possible and inevitable increase in noise level and wrote to the Council to convey his objections. I do not recall ever having had sight of any piece of correspondence between my husband and the Council and was not involved in any discussions between the two parties. Robert was approached by David, the gentleman who at that time was living in the Lock House. He advised Robert that he had also complained to the Council about the proposed Motocross. Whilst Robert and David met on two occasions, their dealings with the Council were totally independent of one another. From my own personal point of view, the Motocross activity at the Stadium did not affect my enjoyment of living at Fenland. With the Motocross taking place alternate Sundays during summer time and each Sunday during winter, I was able to work with this and did not find that it affected me in any particular way. 5. [Mrs. Relton described the circumstances in which a meeting came to take place between she and her husband, Mr. Terence Waters and Mr. and Mrs. Stuart Nunn in 1995] 6. At this meeting Robert aired his views and expressed his concerns regarding the increased noise level which would result from Motocross activity. Terry and Mr. & Mrs. Nunn accepted that the noise levels would be increased and proposed building a bank on the perimeter of the Stadium closest to our land, and planting conifers to help with abatement of any additional noise. They also offered to pay for us to have double glazed windows installed in Fenland. We declined this offer as we felt that accepting such a payment could compromise a need, should there be one, to discuss with them any future development of the Stadium. Also, we had decided to have replacement windows fitted as a necessity. With Fenland being in a particularly exposed position, we felt that high-spec double glazed windows would help with heating costs and also what is known locally as the ‘fen blow’. This happens approximately twice yearly and involves the top layer of the fen soil being blown across the fens rather like a sand storm. Even with double glazing, unless of high specification, the peat soil will enter through the windows. Resulting from this meeting Robert agreed to withdraw his complaint and, accordingly, wrote to the Council to inform them of his decision. … ”[78]Copies of contemporaneous correspondence between Mr. Relton and the District Council were put in evidence. They put a rather different complexion on how he, at least, viewed the Stadium and the Track from time to time from that indicated by Mrs. Relton’s witness statement. The correspondence also needs to be viewed in the context of other matters current at the time the various letters were written.[79]Mr. Relton wrote a letter dated 23 March 1992 to the Chief Development & Planning Officer of the District Council in which he made these, among other, points:- “I would refer to your reference as above for the proposed Moto X Track to be sited to the rear of the Mildenhall Speedway Stadium. I draw to your attention my objections as listed below: a). This particular facility will result in considerably more noise and traffic than the already sited Speedway Track which is used for a variety of activities such as banger racing, greyhound racing, rock concerts and all night raves, all of which generate an unacceptable noise level at unsociable hours in a particularly rural area which normally would have little or no existing noise or noise barriers. … c). These races will not only encourage yet more traffic than the Speedway but will also result in almost continuous noise, taking into consideration that Moto X consists of forty riders per race as opposed to four for Speedway, with each race being thirty minutes long with six races per minimum three hour meeting. Unlike Speedway which consists of sixteen races with each race lasting less than one minute. …”

I draw to your attention my objections as listed below:

[80]The terms of that letter suggest that Mr. Relton felt that the noise generated by the use of the Stadium was unacceptable at least during unsocial hours, but that the anticipated use of the Track would be much worse. Mr. Relton reiterated his points in a further letter to the Chief Development & Planning Officer of the District Council, Mr. Peter Nock, dated 6 January 1993.[81]In a letter dated 27 April 1993 to the District Council Mr. Relton complained about the noise generated by banger racing:- “I would like to make a complaint about the amount of noise generated by the banger racing held at the Speedway Stadium, Cooks Drove, West Row Fen, on Fri 23 April 93. This series of banger racing which commenced on New Years Day 1 Jan 93, have since then made progressively more noise at every meeting (more unsilenced cars are being run at every meeting). On the 26th March 93 I could lay in my bath and through 3 walls the outer one insulated with Rockwool & double glazed windows the noise was most certainly above an acceptable level to myself. Last night 23 April 93 [sic – the letter was dated 27 April 1993] it most certainly was no quiter [sic] plus they were running until 12 midnight. …”[82]There was further correspondence between Mr. Relton and officers of the District Council in 1993 and 1994, but, for present purposes it is not necessary to refer to any of the correspondence until Mr. Relton’s letter to Mr. Nock dated 28 July 1994. That letter set out objections to the renewal of planning permission in relation to the Track. It included:- “I would refer to your proposed Moto X track, to be sited to the rear of Mildenhall Speedway Stadium, West Row Fen. I would draw to your attention my objections as listed below: a). This particular facility will result in considerably more noise and traffic than the already sited Speedway Stadium, which is used for a variety of activities such as Speedway, Banger Racing and Greyhound Racing, all of which generate an unacceptable noise level at unsociable hours in what is an extremely rural location. Since the original application was applied for in 1992, ref.F/92/111 with regard to the Moto X track, the Speedway Stadium has increased it’s [sic] activities considerably, therefore increasing the amount of noise and traffic nuisance generated from this site. Though some members of the Development Committee are inclined to regard the location of the Speedway Stadium as an excuse for allowing the siting of the Moto X track at it’s [sic] present location. Neither, the amount of aircraft noise or boat traffic on the River Lark can be used as justification in siting the Moto X track in Haylands Drove. The aircraft noise is general to the West Row and Beck Row area and the suggestion of boat traffic making a noise is questionable?”

I would draw to your attention my objections as listed below:

[83]In a letter dated 14 May 1995 to Mr. R.N. Plowman, Development Control Manager of the District Council, Mr. Relton commented that:- “The introduction of the Motorcross [sic] has resulted in an unreasonably high increase of noise generated by the Speedway Stadium, from approximately 160 hours annually this now exceeds 750 hours annually!”[84]On 9 August 1995 the District Council served an abatement notice, pursuant to the provisions of Environmental Protection Act 1990 s.80, on Mr. and Mrs. Nunn in relation to the noise generated by the use of the Track.[85]In a letter dated 15 August 1995 to Mr. Nock, evidently written after the meeting of which Mrs. Relton spoke in paragraph 6 of her witness statement, Mr. and Mrs. Relton wrote as follows:- “Further to recent discussions with Mr. & Mrs. Nunn, the Operators of the above mentioned facility [i.e. the Track], we write to confirm our wish to withdraw our complaint concerning the noise generated by use of the Motorcross [sic] site. Our meeting with Mr. & Mrs. Nunn was held with the intention of reaching a mutual compromise. This, fortunately, we managed to achieve with the assistance of Mr. Terry Waters. We, Mr. & Mrs. Nunn and Mr. Waters feel that with certain improvements carried out to the site, i.e. increasing the height of the earth banks, the planting of trees and, also, a reduction of the weekend usage, the noise should be sufficiently reduced to be considered a ‘reasonable level’. We would, however, like to state, that this agreement, which can only be viewed as a ‘positive move’ was arranged and concluded by ourselves, Mr. & Mrs. Nunn and Mr. Waters. We did consider it would be prudent to involve the Council (purely as a neutral body) prior to putting our wishes in writing, but unfortunately experienced considerable negativity. This we found rather difficult to understand, as surely any agreement between both parties must be considered beneficial to all concerned, and also of course, as a move in the right direction?”[86]By a complaint issued on 22 August 1995 Mr. and Mrs. Nunn appealed against the abatement notice pursuant to Environmental Protection Act 1990 s.80(3) and Statutory Nuisance (Appeals) Regulations 1990 reg.2. The appeal was heard by justices sitting at Stowmarket on 9 and 10 November 1995 and was successful. The District Council decided that it wished to appeal against the decision of the justices by way of case stated. However, the justices refused to state a case. The District Council then sought an order of mandamus compelling the justices to state a case. The application for an order of mandamus was heard by Ognall J on 19 July 1996. He made the order sought. The justices appealed that decision to the Court of Appeal. That appeal was heard on 30 April 1997. The Court of Appeal allowed the appeal, essentially on the grounds that the District Council wished to dispute the findings of fact of the justices, and the appropriate mechanism was by way of appeal to the Crown Court.[87]Hewitsons LLP, solicitors acting on behalf of the fourth, fifth and sixth defendants, undertook an analysis of complaints made to the District Council between 1997 and 2010, separately in relation to the noise from activities at the Stadium and noise from activities at the Track. How, precisely, the analysis had been undertaken was unclear. The methodology was explained in a letter dated 18 January 2011 from Hewitsons LLP to Messrs. Richard Buxton Environmental & Public Law, the solicitors acting on behalf of the claimants, in this way:- “We have compiled these summaries from the complaints histories disclosed to both parties. We feel that these summaries will be useful for the Court and, to that end, we should be grateful if you could please confirm by return that the contents of the summaries are agreed and that they may be included in the trial bundle.”[88]They were put in the trial bundle, and I understood that they were agreed. However, I had some difficulty reconciling them to copies put in evidence of documents called “Complaint Details” produced, it seemed, by, or on stationery provided by, Northgate Information Solutions, and which appeared to record, amongst other things, the making of complaints by members of the public to officers of the District Council about noise from activities from the Stadium or the Track. There seemed to be a separate “Complaint Details” form in relation to each complainant and for each of activities at the Stadium and activities at the Track. Thus for each complainant who made complaints about activities at the Stadium and about activities at the Track there were two separate “Complaint Details” forms.[89]The analysis used letters to identify individual complainants, but I was not told their names. According to the analysis, nine people complained about activities at the Stadium, whilst twelve complained about activities at the Track. Between the beginning of 1997 and the end of 2010 there were, according to the analysis, 25 complaints about activities at the Stadium and 60 complaints about activities at the Track. Complainant A made 11 complaints during the period about activities at the Stadium, and 36 about activities at the Track. Thus 47 out of 85 complaints came from one individual. No other complainant produced a total of more than five, as recorded on the analysis, although three complainants, B, G and K, did complain five times. The analysis did condescend upon a reasonable degree of particularity as to the precise nature of each complaint. In particular, it identified the date of each complaint summarised.[90]My difficulty in accepting the summaries as precisely accurate was that there were entries in “Complaint Details” forms copies of which were put before me which seemed to record complaints, yet the complaints were not included in the analysis produced by Hewitsons LLP. In particular, Mr. Peter Brooks, a chartered electrical engineer who had a residence at Isleham Marina in Cambridgeshire, just over a mile to the south-west of the Stadium, and rather less from the Track, had made, according to a “Complaint Details” form of which a copy was put in evidence, complaints about noise from the Track on 21 February 2006, 20 March 2006, 21 March 2006, 4 April 2006, 27 April 2006, 30 May 2006, 1 June 2006, 15 June 2006, 3 August 2006, 10 August 2006, 14 August 2006, 24 August 2006, 28 August 2006, 29 August 2006, 19 October 2006, 22 October 2006, 24 October 2006 and 26 November 2006, yet the Hewitsons LLP analysis only included two complaints about noise from the Track in 2006, on 20 June and 29 August. It thus appeared that the Hewitsons LLP analysis might understate significantly the actual number of complaints.[91]However, for present purposes, the annual distribution of the complaints included in the analysis, whatever criteria were used to decide what should be included, and how many were made in each year by each of the principal complainants, was interesting.

(G) 2008 1 2 (1A, 1B) 2009 4 (3A) 9 (6A) 2010 1 (B) 4 (1A, 1B)

[92]It is always possible that the number of complaints of noise to the District Council was affected by such considerations as whether the District Council appeared to take effective action upon a complaint. However, it does appear that persistent complainants, like A and B, made complaints from time to time throughout the period analysed. Assuming a degree of consistency on the part of the complainant, that is, that he or she made a complaint whenever he or she thought that there was something about which to complain, what is striking about the analysis is how variable the picture is. 2001 seems to have been a particularly bad year for the activities at the Track, but generated only one complaint in relation to activities at the Stadium. The number of complaints generated between 1997 and 2000, both inclusive, seem to be almost de minimis. Track activities in 2002 and 2003 produced a fair number of complaints, but only one a year was generated by Stadium activities. 2004 appears to have been a year of little complaint. However, activities at the Track produced a significant number of complaints in 2005, but in the same year there were no complaints about the activities at the Stadium. 2006, however, was the worst year in the period for complaints about activities at the Stadium. Interestingly, the same year produced a substantially fewer number of complaints about activities at the Track than the previous year, using whatever criteria were used to compile the analysis and pace my observations concerning the complaints of Mr. Brooks. 2007 was a quiet year in relation to activities at the Track, judging by the number of complaints to the District Council, but complaints in relation to activities at the Stadium continued at a level, compared with its past record, which was significant. However, 2008 was a quiet year, according to the number of complaints received, both for the activities at the Stadium and for activities at the Track. 2009, on the other hand, was a bad year, based on comparison with other years. There was still a significant number of complaints about activities at the Track in 2010, but only one complaint concerning activities at the Stadium.[93]Apart from variability over time of the frequency of complaints, the other striking feature of the analysis which I have summarised is the balance of complaints as between activities at the Stadium and activities at the Track.[94]Other evidence, more directly concerned with the actual experience of Miss Lawrence and Mr. Shields of noise from activities at the Stadium and at the Track suggested that, indeed, the noise generated from activities conducted at the Stadium or at the Track, was variable in terms of the impact which it produced in relation to noise. One feature which seemed to affect how matters were perceived at Fenland was the direction of the wind – whether Fenland was upwind or downwind of the activities.[95]In the result, I find, on the evidence led before me, that in the period prior to the purchase by Miss Lawrence and Mr. Shields of Fenland, the area including the Stadium, the Track and Fenland was an agricultural area in proximity to a military airfield, aircraft from which caused noise of brief duration from time to time, and in which noise was generated from activities at the Stadium and at the Track on occasions. However, it was not the case that the noise generated from activities at the Stadium or at the Track was constant in volume when activities were taking place, or constantly a feature of the locality. There were significant periods each week when no activities were in progress at the Stadium or at the Track. During those periods plainly there was no noise from such activities. When there was noise from such activities, sometimes they were sufficiently intrusive to generate complaints, and sometimes not. Logically, therefore, it seemed that it was possible so to organise activities at the Stadium or at the Track as not to produce intrusive noise affecting those residing nearby.

Evidence of nuisance

[96]Against the background of my findings as to the nature of the locality of Fenland when Miss Lawrence and Mr. Shields moved into the Bungalow, I turn to consider the evidence as to nuisance from noise generated by activities at the Stadium or at the Track.[97]The evidence as to nuisance, or not, took two forms.[98]There was factual evidence on behalf of the claimants as to the experiences of Miss Lawrence, Mr. Shields, Mr. Brooks, and three other residents of, or visitors to, the locality. One of these was Mr. William Hoskins, a barrister who owns Delph Cottage, which is something like a mile and a half away from the Stadium towards the north-west. Mr. Hoskins uses his cottage only occasionally. The other two witnesses owned properties at Isleham Marina. They were Mr. Anthony Mears, whose witness statement was admitted pursuant to the provisions of Civil Evidence Act 1995, and Dr. John Meers. There was also some limited factual evidence as to noise from the activities at the Stadium and at the Track given by witnesses called on behalf of the defendants. One such witness was Mrs. Relton, whom I have already mentioned. Broadly the effect of the factual evidence as to noise called on behalf of the defendants was to the effect that the noise from the activities at the Stadium and at the Track was not found by the witness to be intrusive or unacceptable.[99]In addition, there was expert acoustic evidence from Mr. Stigwood and from Mr. Sharps. As it seemed to me, the value of the expert evidence related to whether, on the assumption that I accepted the evidence of the claimants as to the effect upon them of the noise generated by the activities at the Stadium and the activities at the Track, a reasonable person would have been similarly affected. As each of Mr. Stigwood and Mr. Sharps recognised in their evidence, it was not for either of them to say whether the noise of which Miss Lawrence and Mr. Shields complained did amount to a nuisance or not.[100]Mr. McCracken sought, in cross-examination, to portray Miss Lawrence as difficult, unsympathetic to the needs and wishes of others, strong-minded, inflexible, and determined to stand upon what she perceived to be her rights. There was also, I think, a suggestion that she was unduly sensitive to noise and that she adopted an unreasonable attitude towards the noise generated by the activities conducted at the Stadium and at the Track. I reject all of these criticisms. I was very impressed by Miss Lawrence. She seemed to me to be a very balanced, reasonable person. Far from seeking to have the activities at the Stadium or at the Track discontinued, or hamstrung so as to be rendered, for practical purposes, difficult or impossible to pursue, she told me that all she was seeking was some appreciation of the impact upon her and Mr. Shields of some of those activities.[101]Miss Lawrence kept a diary, and in it noted occasions upon which the noise of activities at the Stadium or at the Track were, in her view, unacceptable. Copies of typescript versions of redacted entries were put in evidence.[102]At paragraphs 7 and 8 of her first witness statement prepared for the purposes of this action Miss Lawrence said:- “7. Having moved in on 26th January 2006, for the first two months (February to March) we were aware of motorbike activity from the vicinity of the Stadium but were busy unpacking or away on holiday, so we would not have witnessed all the activity. On the evening of 1st April 2006 we were inside the house with windows and doors closed when we heard revving and roaring engine noise, air horns (loud noise-making aerosol devices used by spectators), and music and tannoy that sounded as though it was coming from the adjacent field, although the motorsports facilities are in fact 500 metres away. The noise was so intrusive the television had to be turned up to uncomfortable levels in order to try to blot out the noise. The following day Ray [Mr. Shields] spoke to a local farmer who confirmed that the activity had been Banger racing and that both the Speedway and Banger seasons had now started. He also clarified that the bike noise we had heard the next day was Motocross (ie. at the motocross track behind the stadium) and not Speedway. 8. I telephoned Environmental Services at the council on 3rd April to register a strong complaint after this Saturday night of Banger Racing followed by a Sunday of motocross. The council confirmed that all three activities operated from the site and that for the council to investigate further I would have to make a formal complaint.”[103]On that evidence, which I accept, it seems that the first occasion upon which Miss Lawrence and Mr. Shields experienced noise which they considered to amount to a nuisance was on 1 April 2006. There was evidence that in the period between 26 January 2006 and 1 April 2006 there had been motocross activities at the Track on 25 occasions, always a Tuesday, a Thursday or a Sunday. It was suggested to Miss Lawrence in cross-examination that it was surprising, if her complaints of noise were genuine, that she did not complain earlier than the beginning of April. Her evidence was that she did not consider the noise to be a nuisance until she complained. There was no obvious reason for her to make a complaint at the beginning of April 2006 unless she considered the noise to be objectionable, and I accept her evidence on the point. It was not suggested to Miss Lawrence that the complaint of noise was fabricated to provide a pretext for some sort of campaign against the activities at the Stadium or those at the Track because she had a personal antipathy to those activities.[104]After Miss Lawrence made her first complaint to the District Council, she was provided with a “Noise Survey Form” to complete for the District Council, and did make entries on that form for the period 1 April 2006 until 6 March 2007. In June 2006 noise monitoring equipment was installed by the District Council and monitored by its officers. “Complaint Details” forms started to be completed in relation to Miss Lawrence, and copies of those forms were put in evidence. I was particularly impressed that in each of the contemporaneous records which Miss Lawrence maintained and in the “Complaint Details” forms as completed she seemed to be trying to be scrupulously fair. It was not a case of there being a constant theme of unacceptable noise. While the “Noise Survey Form” as completed included many records of loud noise and it being impossible to be in the garden at Fenland, there were numerous records of all windows in the bungalow at Fenland being closed, but no other comment, suggesting that with the windows closed the noise was not unacceptable, for on other occasions Miss Lawrence noted that she was unable to work in her office, or had to put her television on at a loud volume to exclude the noise from outside, even with the windows shut. Dates noted on the “Noise Survey Form” as dates upon which “Interior – All Windows Closed”, or words to that effect, but no other note was made indicating difficulty in doing something, were 24 June 2006, 9 July 2006, 15 July 2006 between 10.00 a.m. and 4.00 p.m. (but not later that day after banger racing started), 20 July 2006, 22 July 2006 between 10.00 a.m. and 4.00 p.m. (but again not later in the day), 25 July 2006, 27 July 2006, 30 July 2006 between 10.00 a.m. and 4.00 p.m. (but not later in the day), 1 August 2006, 6 August 2006 between 10.00 a.m. and 4.00 p.m. (but not later in the day), 13 August 2006, 14 August 2006, 17 August 2006, 20 August 2006, 27 August 2006 between 10.00 a.m. and 4.00 p.m. (but not later in the day), 7 September 2006, 9 September 2006, 10 September 2006, 12 September 2006, 16 September 2006, 17 September 2006, 21 September 2006, 26 September 2006, 28 September 2006, 30 September 2006, 5 October 2006, 7 October 2006, 14 October 2006, 15 October 2006 between 4.00 p.m. and 6.30 p.m., 19 October 2006, 12 November 2006, 18 November 2006, 21 November 2006, 23 November 2006, 28 November 2006, 3 December 2006, 10 December 2006, 14 December 2006, 17 December 2006, and 21 December 2006. There were also entries which included the comment, “Not loud”. They were on 2 January 2007, 4 January 2007, 9 January 2007, 16 January 2007, 18 January 2007, 21 January 2007, 23 January 2007, 25 January 2007, 30 January 2007, 1 February 2007, 6 February 2007, 8 February 2007, 18 February 2007, 27 February 2007 and 6 March 2007.[105]There was also contemporaneous evidence in the “Complaint Details” forms prepared in relation to Miss Lawrence of visits to her at Fenland by officers of the District Council who recorded their own views about what could be perceived. One such visit was by Mr. Keith Mumford, a Principal Environmental Health Officer, on 21 January 2007, a date upon which Miss Lawrence had noted that the noise was not loud. Mr. Mumford’s note was:- “Visited Mrs. lawrance [sic] home at Fenland, Cooks Drove. I was accompanied by Paul Speakman. The time was 11.21. I could hear some noise from the motocross track. The noise in the lounge area was not significant or intrusive. I went out in the garden where I could hear distintive [sic] motocross noise a roaring droning noise. The noise I witnessed from the garden was loud. We left the premises at 11.42 am.”[106]From that record it would seem that Mr. Mumford would have considered Miss Lawrence to have been justified in including a note that the noise was loud in the garden, but she did not.[107]It is not necessary, I think, for the purposes of this judgment, to consider every entry in a “Complaint Details” form made by Mr. Mumford, or one of his colleagues, in which a note was made of the assessment of the officer concerned of the noise coming from activities being conducted at the Stadium or from activities being undertaken at the Track. I am concerned with the evidence of such notes principally in the context of the light which it shed on whether Miss Lawrence was being unreasonable in her complaints. Consequently it is enough to consider entries made in July 2007:- “(Mr. Mumford, 1 July) Visit made to complainants at 10.20 am. Noise intrusive and unreasonable. I left the premises at 11.10 am. I visited the motocross track and confirmed that the noise was coming from that activity. Nuisance. Visited the complainants again 12.15. The noise from the motocross track was unreasonable and in my bopinion [sic] affected the enjoyment of their premises. I left at 1.16 pm. Returned to the complainants [sic] home at 3.20pm. Before my visit I went to the motocross track and confirmed the noise source. I left the premises at 4.50pm. The noise in my opinion was unreasonable. (Mr. Speakman, 1 July) 11.04 am I carried out noise monitoring at Fenland. Keith Mumford carried out monitoring at the premises. Ms Lawrence was at her property. I witnessed statutory noise nuisance caused by motocross bikes being ridden on the motocross track. Wind direction = South [that is, Fenland was downwind of the Track] 12.06pm I visited Haylands Drove. I witnessed noise from motocross bikes being ridden on the motocross track. They produced the noise that I witnessed causing a statutory nuisance. 12.54pm I visited Fenland. I witnessed noise from motocross bikes being ridden on the motocross track causing a statutory nuisance. Ms Lawrence was at her property. Wind direction = South I visited Haylands Drove. I witnessed motocross bikes being ridden on the motocross track. The noise emanating from the activity caused the statutory nuisance I witnessed at Fenland. 3.10pm I visited Fenland. I witnessed noise from motocross bikes being ridden on the motocross track causing a statutory nuisance. Keith Mumford was carrying out monitoring at the premises. Ms Lawrence was at her property. Wind direction = South. … (Mr. Speakman, 3 July) 11.20 am – 12.56pm I carried out monitoring at the complainant’s property. I witnessed loud, intrusive noise from the motocross track causing statutory nuisance to the complainant. Ms Lawrence was at her property. Wind direction = South West. … (Mr. Speakman, 10 July) 10.47am – 12 pm. I witness constant buzzing and droning noise emanating from the motocross track causing unreasonable disturbance to the complainant. There were loud peaks of droning noise. The noise arose from motocross bikes being ridden on the motocross track. 10.47am – 12pm. Statutory noise nuisance witnessed from the activity of motocross bikes being ridden on the motocross track at Haylands Drove, West Row. … (Mr. Speakman, 14 July) 7.59pm – 9.17pm Noise nuisance. I monitored in house and garden noise from banger racing at Mildenhall Stadium. I witnessed noise arising from the activity emanating from Mildenhall Stadium causing statutory nuisance. 9.23pm – 9.27pm I visited land at Cooks Drove adjacent to Mildenhall Stadium. I witnessed banger racing. 10.12pm – 11.23pm Statutory nuisance. I monitored, with Keith Mumford, in the house and garden of the complainant’s property noise arising from banger racing activities at Mildenhall Stadium. The noise caused a statutory nuisance. … (Mr. Mumford, 15 July) Visited complainants from 10.30 – 12 noon noise was loud and unreasonable and in my opinion a nuisance. Visited complainants at 1.01 – 1.44pm loud noise and a nuisance. Visited premises 3.12 – 3.59pm loud noise causing a nuisance. … (Mr. Speakman, 17 July) 10.55am – 1.06pm I witnessed statutory noise nuisance arising from the activity of motocross bikes being ridden on the track at Haylands Drove, West Row. Ms Lawrence was at her property. Wind direction = South West. … (Mr. Speakman, 26 July) 2.03pm – 4.01pm. I carried out monitoring at Fenlands. I witnessed a noise nuisance caused by motocross bikes being ridden on the motocross track at Haylands Drove. Ms Lawrence was at her property. Wind direction = South. … (Mr. Speakman, 31 July) 12.55pm – 2.57pm I witnessed noise nuisance arising from the activity of motocross bikes being ridden on the motocross track at Haylands Drove. Ms Lawrence was at her property. Wind direction = Calm. ” Wind direction = South [that is, Fenland was downwind of the Track] Wind direction = South Wind direction = Calm. ”

Wind direction = South

[108]In her first witness statement made for the purposes of this action, dated 10 August 2010, Miss Lawrence adopted a chronological approach to explaining her experiences since arriving at Fenland. In preparing her witness statement, as she told me, she relied heavily on her contemporaneous records. She picked out, understandably, particular dates upon which she considered that the noise from the Stadium or from the Track had been especially intrusive and disagreeable. It is not necessary to record every incident of which she complained. I am satisfied that all of her complaints were justified. However, it is material to note that, as I have indicated, Miss Lawrence did not complain of every use of either the Stadium or of the Track for any purpose. On some occasions whatever use was made of the Stadium or of the Track did not generate a noise at Fenland of which she wished to complain. However, I am satisfied that there were many occasions upon which the noise generated was excessive in volume and duration and amounted to a nuisance. The cumulative effect of these occurrences of nuisance Miss Lawrence explained in her first witness statement in this way:- “75. The motorsports events ‘planners’ I created for 2007 – 2010 … demonstrate the amount and frequency of activity in the more than four years we have been at Fenland, such as on every weekend in 2006. In 2007 we had one free weekend, 31 weekends with two or more activities taking place and 9 (of the 31) with Banger racing, Motocross and Speedway on the same weekend. In 2008 we again only had one free weekend, plus 23 weekends with two activities taking place and 4 weekends with all three. In 2009 there was activity on every weekend, 22 had more than two activities operating and five had all three.76. It has been impossible to plan our family life around these continual activities, further exacerbated by Greyhound racing and unscheduled (including impromptu) activity such [as] Banger and Speedway practice and the Motocross breaches [of conditions attached to the Track Permission]. The Speedway only operates when the track is dry, so racing can be cancelled on the day of the scheduled race and further dates added at short notice. Two-day motocross events are not advertised, and although the council authorises dates in advance residents are not directly informed.77. Every bank holiday weekend attracts activity including Christmas and Easter. This essentially excludes us from our property during national and religious holidays when we want to be able to relax in our home and garden as well as invite friends and family over.78. … The unacceptable level of intrusion caused by the frequency and duration of activity as well as the increase in the number of events (such as Banger events increasing from 20 to 28, and Motocross now operating throughout the summer), plus practice sessions that are often not advertised, continual breaches of planning permissions, and operating every Bank holiday, … mean that we are no longer able to take any joy from our immediate surroundings.79. The pastimes that we have always enjoyed and found relaxing are no longer of interest. It is uncomfortable and often impossible to be outside in clement weather when the motor activities take place and we no longer feel motivated to maintain our garden or carry out any improvement works. …80. When Motocross operates on a Tuesday, Thursday and Sunday for practice there are no breaks to provide a degree of respite, with the bikes operating from 10am to 4pm. Even during Sunday events the breaks are scarce and of short duration and if there is a break it is often blighted by intermittent revving. The Motocross planning permission includes a lunch break of one hour during the summer between 12.30 and 1.30pm. However in reality these are rare and usually only occur when council officers are witnessing (and even then I cannot find an instance where they have implemented the full hour’s break in accordance with the conditions, although mini-breaks have occurred of up to half an hour at times which apparently suit the operator); or they occur when noise assessments are taking place (such as in February 2007, when a lunchtime break was taken although not required).81. As a result of the disturbing noise we changed our living accommodation at Fenland, moving our living room into the kitchen/diner and our bedroom from the largest to the smallest bedroom, which is on the other side of the house from the garden and the motorsports. Eventually I even moved the washing line from the back to the side garden furthest away and slightly sheltered by the house.82. Again because of the frequency of the activities it was often financially impossible to get away each time from the house, eg. for evening meals, cinema visits etc, so we would lock the house down and spend the weekend inside with television or radio at uncomfortable levels when the activities were taking place. This seems to have happened so often and we became so used to the raised television volume that it has almost become the norm.”[109]In that passage Miss Lawrence did not mention the fact that it was not every use of the Stadium or of the Track which caused a noise which was intrusive. However, it is clear from the contemporaneous records to which I have referred in the “Noise Survey Form”, that in fact she recognised that that was so. What was plainly unpredictable, however, was which particular uses of the Stadium or of the Track on which particular occasions would be likely to cause intrusive noise. Obviously this unpredictability brought its own problems, for Miss Lawrence and Mr. Shields would not know in advance whether any particular occasion of use of the Stadium or of the Track would be likely to disturb them.[110]Since Miss Lawrence and Mr. Shields have owned Fenland measures have been taken ostensibly to reduce the transmission of noise to Fenland.[111]One of the measures taken was the construction of a straw bale wall twelve feet high something like fifteen feet from the boundary hedge of Fenland on land farmed, at the time, by Mr. Jonathan Waters. This wall was constructed without advance notification to, or consultation with, Miss Lawrence and Mr. Shields. The construction of such a wall, as close as possible to Fenland, had been recommended by Messrs. Acoustic Design Consultants in a report dated 21 February 2007 addressed to the District Council as an alternative noise mitigation option to construction of an earth bund. The relevant passage was in these terms:- “As an alternative mitigation option, and one which would theoretically have most beneficial effect, some form of barrier could be erected as close to the receptor property as possible, such as a close boarded fence or straw bale wall located along the south east boundary close to the ‘Fenland’ property. The height would be dependant on various factors such as aesthetics and the effect of light issues in the garden, but we would suggest it be at least 2m high [approximately 6 feet 6 inches] to have any significant effect on garden noise levels. ”[112]The straw bale wall as constructed proved to be ineffective as a noise barrier and was removed after some seven weeks. It was suggested that the construction of the straw bale wall was in the nature of an attempt at intimidation of Miss Lawrence and Mr. Shields. Certainly the facts that the height of it obviously overshadowed the garden at Fenland and, to a degree, the Bungalow, being roughly twice as tall as suggested in the report of Messrs. Acoustic Design Consultants, and that it was constructed without notification to, or consultation with, Miss Lawrence and Mr. Shields, suggest that it was not unsatisfactory to Mr. Terence Waters, who seems to have been the prime mover in the construction of the straw bale wall, that Miss Lawrence and Mr. Shields should be inconvenienced by its presence.[113]Miss Lawrence gave this account of the construction and removal of the straw bale wall in her first witness statement:- “27. On Friday 14th September [2007], between 5pm and 9pm, a fork lift truck driven by a farm labourer employed by the Waters family began building a 12 feet high hay bale barrier around the perimeter of our property, in the field owned by Suffolk County Council which is leased to a tenant farmer, David Rusted, and then subleased to members of the Waters family (Jonathan and Terry) …28. On Saturday 15th September, building re-commenced at 8am. At 10.25am Terry Waters arrived to oversee the construction and while Ray [Mr. Shields] and I were in the garden I witnessed Terry Waters (at the time our local district councillor) without provocation becoming verbally abusive to Ray, offering to fight him on the road. The construction continued throughout the day until 6pm with James Waters now in attendance, with Terry Waters coming back and forth throughout the day. At 7pm (in daylight) fireworks were set off near the Stadium where a Banger event was just starting. Racing continued until 11.50pm, with further noise (from vehicle horns) after midnight. …29. Construction of the hay bale barrier continued on 16th 17th and 18th September. Throughout the build the fork lift truck reversing alarm was permanently activated, even when it was not in reverse. Council officers attended on 17th September to advise that the barrier had resulted in delaying their investigation.30. The barrier was eventually completed on 19th September and resulted in the house becoming a local ‘tourist attraction’ with vehicles driving around the perimeter of our property throughout the day and as late as midnight or even later. …31. On 23rd September Keith Mumford visited to confirm that the barrier made no difference to the noise nuisance. He stated that ‘Terry Waters has shot himself in the foot with this’ and said the council was ‘very concerned about the amount of influence’ into the investigation … He also asked whether we were prepared to be witnesses in any court proceedings to be brought by the council ‘because that’s what was missing from the last case – no witnesses prepared to give evidence’.32. The barrier was eventually removed 7 weeks later (6th November). It had taken five days to build yet was removed in just one day, without any direction from Terry and James Waters. ”[114]Following the removal of the straw bale wall, on 14 December 2007 abatement notices were served on Mr. David Coventry and Moto-Land. As I understand it, in order to have been justified in serving the abatement notices the District Council must have taken the view that the noise generated by the activities at each of the Stadium and the Track amounted to a statutory nuisance. Both Mr. Harrison and Mr. McCracken relied upon the views of the District Council in relation to the question of statutory nuisance, but focused on the different views expressed at different points in time. The abatement notices dated 14 December 2007 required different works to be undertaken by each of Mr. Coventry and Moto-Land.[115]In the case of the Stadium what was required, by 1 June 2008, was:- “1. No banger or stock car racing including practising shall commence before 13:30 or finish after 22:00 on any day. 2. Increase in height by an additional metre the earth bund (as shown on the attached sketch which forms part of this notice) along the north-west and north-east boundaries (past the commentary box). Erect on top of the increased bund a two metre high barrier constructed of either close boarded wooden fence or a solid row of straw bales along the complete boundaries. Any straw bales used in the construction of the barrier should be at least a metre in thickness. There must be no perforations within the barrier. 3. All barriers must be securely fixed in place and maintained in good order. There should be no gaps within the barriers, unless they are used for emergency or access purposes. 4. Provide a suitable noise limiter to the tannoy system which will not cut the power in the case of emergency announcements. The noise limiter equipment shall be installed in accordance with guidance from the Council’s Environmental Health Services. 5. All speakers used for the tannoy system shall be directed away from the north west and north east boundaries and should be sited at a height of no more than 2.5 metres from the ground. 6. The roller shutters above the main entrance doors used for race vehicles (as shown on the attached sketch which forms part of this notice) must be lowered to provide a barrier with the entrance doors once racing or practising has commenced.”[116]The abatement notice directed to Moto-Land required, by 1 June 2008:- “1. Provide and construct an extra row of straw bales along the length of the existing north west boundary on top of the existing straw bales. The provision of the new straw bales must be of a similar construction and size to the existing straw bales. The bunding must be extended to provide a complete barrier along the north west boundary. There must be no perforations within the barrier. 2. Increase along the length of the south west boundary the existing earth bund to a height of two metres and erect a row of straw bales on top of the increased bund. The provision of the straw bales must be of a similar construction and size to the existing straw bales as described in item 1 above. Alternatively, provide and erect along the length of the south west boundary a suitable 4 metre high close boarded fence. There must be no perforations within the barrier. 3. Provide a new straw bale wall to the north east boundary along the length of the boundary, excluding the existing entrances to the height of the completed barrier described in item 1 above. The provision of the straw bales must be of a similar construction and size as also described in item 1 above. There must be no perforations within the barrier. 4. Provide and construct a suitable section of wall (lateral extension) along the north side track entrance located on the north east boundary. The wall should be of the same height as the completed barrier in item 1 above to sufficiently remove a direct pathway for noise from any part of the track to any external area. There must be no perforations within the barrier. 5. Increase the height of the existing bunding along the length of the south east boundary to a height of 2 metres. The existing fencing should be suitably repaired or replaced or alternatively provide a row of two bales on top of each other along the top of the new bund. The provision of the straw bales must be of a similar construction and size to the existing straw bales as described in item 1 above. There must be no perforations within the barrier. 6. All barriers must be securely fixed in place and maintained in good order. There should be no gaps between any of the straw bales used in the construction of barriers, unless used for emergency or access purposes. 7. All speakers used for the tannoy system shall be directed away from the north west and north east boundaries.”[117]The service of the abatement notices was preceded by a meeting held on 27 November 2007 between various officers of the District Council, Mr Terence Waters, Mr. James Waters, Mr. David Coventry and Mr. Clifford Bastick. A copy of minutes of the meeting was adduced in evidence at the trial. In the minutes those contributing to the discussion were identified by initials. The initials “KM” referred not to Mr. Mumford, but to Keith Marley, Head of Environmental Services at the District Council. He began the meeting by setting out its purpose:- “FHDC’s [that is, the District Council’s] position was summarised by KM: FHDC Environmental Services Officers have identified a noise nuisance at both Mildenhall Stadium and the Motocross Track and the Council is obliged to act. The scheme of works required to reduce this noise nuisance has been communicated in the form of past meetings and letters to the operators, and believed necessary, appropriate and reasonable. If operators feel this scheme of works is not achievable then itis requested that they write to FHDC to suggest a reasonable alternative scheme to be negotiated between both parties.”[118]Later in the meeting, it seems, officers of the District Council indicated, more or less in terms, that if the works which the District Council wanted carried out were executed, that would be the end of the issue of statutory nuisance so far as the District Council was concerned. The material part of the minutes read:- “CB [Mr. Bastick] asked whether if the works are completed and it doesn’t work then would the complainant and the Councils [sic] requirements go away. NM [Nigel McCurdy, Strategic Director (Services) of the District Council] replied that this was an issue between the complainant and the operators as FHDC are only acting on their legal obligation to follow up a complaint by a member of the public. He was unable to comment on behalf of the complainant but said that as long as the Operators complied with the Council’s recommendations for mitigation works and maintained them then this would be the end of the matter as far as FHDC were concerned, provided the regime of how the site operated did not change as both parties would have achieved a position and defence of ‘best practical means’. KM said that from FHDC’s point of view best practical means says that there are works that can be done to reduce noise. As long as the operators have been seen to do works to reduce noise levels, following the recommendations of the Council, then no more could be done and the matter would be closed.”[119]In due course, after the execution of the required works, the position of the District Council was that there was no longer a statutory noise nuisance as a result of the activities at the Stadium or those at the Track. The value of that opinion, which Mr. McCracken urged upon me as powerful evidence that there was no continuing nuisance after the completion of the relevant works, needs, in my judgment, to be viewed in the context of the position explained at the meeting on 27 November 2007 by Mr. McCurdy and Mr. Marley, and having regard to other evidence as to the views of Mr. Mumford, to which I shall come.[120]The notice served upon Mr. Coventry was the subject of an appeal to justices sitting in Mildenhall. The appeal was compromised in June 2008 on terms that the abatement notice be modified so as to substitute for the first two requirements originally specified, three new or modified requirements, with consequential renumbering of the remaining paragraphs:- “1. No banger or stock car racing including practising shall commence before 13:30 or finish after 23:00 accept [sic] in the case of emergency. In all cases no music shall be played through the tannoy system after 23:00 until 13.30 the next day. 2. Provide and construct from the rear of the main stand a 3 metre high continuous acoustic barrier along the north west and north east boundaries on top of the existing earth bund as indicated A to B on the attached sketch (to the second lamppost). The existing entrance should be gated to form an effective acoustic barrier to the same height as the new completed barrier. The gate must be kept closed during racing including practicing [sic] unless it is used for emergency or access purposes. There must be no gaps or perforations within the barrier. 3. Provide and construct a suitable 2 metre high acoustic barrier along the north east and south east boundaries on top of the existing earth bund as indicated B to C on the attached sketch. The existing entrance should be gated to form an effective barrier to the same height as the new completed barrier. The gate must be kept closed during racing including practicing [sic] unless it is used for emergency or access purposes. There must be no gaps or perforations within the barrier.”[121]Notwithstanding the compromise of the appeal, there was delay in carrying out the agreed works. That prompted the District Council to write to Mr. Coventry a letter dated 13 November 2008 in which it was recorded that, in the view of the writer, there were grounds for prosecution under Environmental Protection Act 1990 s.80(4), but that the District Council was minded to issue a caution for the offence, if Mr. Coventry was agreeable to that course. Mr. Coventry indicated on 24 November 2008 that he was agreeable. The works the subject of the revised abatement notice were completed in January 2009.[122]Compliance with the abatement notice served upon Moto-Land required the obtaining of planning permission. The District Council granted the necessary permission on 2 May 2008. By a letter dated 3 June 2008 Mr. Speakman, on behalf of the District Council, extended time for compliance with the abatement notice to 16 October 2008. The District Council took the view that that date was not complied with. Consequently a letter also dated 13 November 2008 was written by the District Council to the Company Secretary of Moto-Land in terms similar to the letter of the same date to Mr. Coventry. Moto-Land also agreed to accept a caution.[123]Following the completion of the works at both the Stadium and at the Track the District Council instructed consultants, Messrs. H & H Acoustic Consultancy Division, to undertake noise assessment so that the District Council could conclude whether the abatement works had been effective. The noise assessment seems to have been undertaken at the beginning of 2010.[124]In a letter dated 4 February 2010 to the Messrs. Coventry Mr. Mumford wrote, so far as is presently material:- “Objective noise monitoring was conducted by our consultants (the subsequent reports have already been sent to you) and have demonstrated that noise attenuation works conducted at the stadium have reduced noise levels. Subjective noise assessments were also conducted over several months by Officers of the Council. Officers are satisfied that noise nuisances do not exist from the racing activities at this time. However we do have concerns in respect to when both the stadium and the motocross racing activities are operating at the same time, albeit when Officers conducted noise monitoring they were not satisfied of a statutory noise nuisance from either individual or combined noise sources. I am sure you will appreciate that any further development of your racing activity that is likely to cause a noise disturbance to residents may lead to the Council forming an opinion that a statutory noise nuisance exists in the future.”[125]Mr. Mumford wrote to Mr. Bastick of Moto-Land on 17 March 2010. What he said in that letter about noise which is presently material was:- “Objective noise monitoring was conducted by our consultants (please see the enclosed report). The monitoring has demonstrated that noise attenuation works conducted at the Motocross Track have reduced noise levels. However due to the significant difference between the ambient noise and the noise generated by the Motocross activities there is still a likelihood of noise complaints being received by this authority. Subjective assessments were also conducted over several months by Officers of the Council. Officers are satisfied that a noise nuisance does not exist from the racing activities at this time. We do however have concerns in respect to when both the Motocross Track and Mildenhall Stadium racing activities are operating at the same time, albeit when Officers conducted noise monitoring they were not satisfied of a statutory noise nuisance from either individual or combined noise sources. I am sure you will appreciate that any further development of your racing activity that is likely to cause a noise disturbance to residents may lead to the Council forming an opinion that a statutory noise nuisance exists in the future.”[126]Enclosed with that letter was a report of Messrs. H & H Acoustic Consultancy Division dated 16 March 2010. In section 10 of that report, entitled “Discussion and Recommendations”, a technical explanation was given as to why further complaints in respect of noise generated by activities at the Track might be expected from the occupiers of Fenland, notwithstanding the noise attenuation works undertaken:- “10.7 A comparison of measurements made during the survey period has shown that noise levels at the Motocross track have been reduced by an average of 1.3dB. This minor reduction is likely to be due to changes in on-site management of noise and riders and a possible change in the number of bikes utilising the track at any one time. 10.8 Following the initial assessment [on 11 February 2007] noise mitigation measures were recommended in order to reduce noise levels at the receptor property [Fenland]. Subsequently Motolands UK [sic] have replaced and upgraded boundary treatments at the track, installing significantly higher straw bale barriers to the south-west, south-east and north-east boundaries, and an earth bund to the north-west boundary. In addition the entrance to the track area from the paddock has been acoustically treated. 10.9 In order to determine the effectiveness of the barriers, noise levels measured at the receptor property in 2010 were compared with those measured during the initial survey in 2007. This comparison has shown that average ambient noise levels whilst races are ongoing have been reduced by 11.5dB. Background noise levels measured during race periods were 7.2dB lower than those measured during the initial survey. 10.10 If 1.3dB of this reduction can be attributed to mitigation at source (assuming this is not a normal variation in measured levels), it could be assumed that the remaining 10.2dB of mitigation achieved is due to the barriers now in place at the site. 10.11 Lastly, a BS 4142 assessment of noise from the site has been carried out in order to determine the likelihood of complaints at the receptor property following the installation of the recommended mitigation measures. 10.12 The BS 4142 assessment showed that the rating noise level (i.e. the noise level wholly attributed to the noise source with appropriate corrections applied) at the receptor property was 12dB greater than the measured background noise level at the same location. This level difference indicates that in accordance with BS 4142 complaints are likely. 10.13 The initial assessment predicted a level difference of 14dB without mitigation measures in place, also equating to a result of ‘complaints are likely’. Although noise levels at the receptor have been significantly reduced, the likelihood of complaints has remained similar. The rating noise level used in the second assessment is 11.5dB lower than that used during the initial assessment however the background noise level has also reduced by 6.5dB.”[127]It was common ground that an increase in noise by 10dB amounted to the noise being twice as loud. In simple terms what the writer of the report dated 16 March 2010 seemed to be saying was that, although the noise attenuation measures at the Track had reduced the absolute level, as it were, of the noise generated by activities there, in relative terms those activities still generated noises which were more than twice as loud than the background noise when those activities were not taking place. It was that relative difference in noise levels which was expected to generate complaints from the occupiers of Fenland.[128]The author of the report dated 16 March 2010 was not called to give evidence at the trial.[129]From the terms of his letter dated 17 March 2010 to Mr. Bastick the view of Mr. Mumford at that time, following completion of attenuation works, seems to have been that the activities at the Track did not produce noise which was a statutory nuisance, but that it might well still amount to a private nuisance, for that seems to be the only purpose of Mr. Mumford referring in this letter to the likelihood of the District Council continuing to receive complaints.[130]In a letter to Miss Lawrence also dated 17 March 2010 Mr. Mumford recorded the conclusions of the District Council in this way:- “It is our opinion that the operator of the Motocross Track has abated the statutory noise nuisance you and your family were experiencing. It is also our opinion that the operator of the Motocross Track is compliant with the Abatement Notice that was served. I have however written to the operators recommending they do not extend any further noisy activities at the site that may cause a disturbance to nearby residents. We have also recommended that racing events carried out by the stadium and motocross, which occur at the same time, should be restricted. These recommendations are based on good practice and hopefully if implemented will improve the situation.”[131]Mr. Mumford had expressed very similar conclusions in a letter dated 4 February 2010 to Miss Lawrence concerning the effectiveness of the attenuation works at the Stadium.[132]While Mr. Mumford did not, in his letter dated 17 March 2010 to Miss Lawrence recognise to her, as he had recognised to Mr. Bastick, that there was a risk of continuing noise nuisance from activities at the Track, his comment in each of his letters dated 4 February 2010 and 17 March 2010 that the recommendations not to have racing at the Stadium and at the Track at the same time, “hopefully if implemented will improve the situation” seemed to acknowledge that, at least if there was racing at both venues at the same time, there was a “situation” to be improved. That “situation” was presumably the generation of noise nuisance.[133]The evidence of Miss Lawrence and that of Mr. Shields was that the works undertaken in 2008 – 2009 at the Stadium and at the Track had not actually eliminated the nuisance from noise generated by activities at those sites.[134]In his first witness statement, dated 10 August 2010, Mr. Shields dealt with the impact on him of noise from activities at the Stadium and at the Track in this way:- “6. However the extent of the activity at both the Stadium and Motocross track meant it was often impossible to remain inside the property never mind outside. It became increasingly more difficult to spend any quality time in the garden and I became increasingly frustrated by having to organise my gardening time around the activities. In an effort to overcome the nuisance I experimented with various ear defenders and ear phones, however these methods were not practical for long periods or when operating equipment and eventually I began to dread my rest days and found it difficult to summon up any enthusiasm to be in the garden at all. 7. The motocross can operate from 10am to 4pm on weekdays and Winter Sundays. Tuesdays and Thursdays are practice days without breaks. Both 2 stroke and 4 stroke, louder and more invasive machines than 2 strokes, operate and the noise of the revving, plus accelerating before and after jumps can penetrate and overwhelm the landscape without respite. Before the abatement works had been completed the motocross bikes were audible regardless of wind direction and could be seen operating from our garden. Event days which are on Saturdays and Sundays also include Tannoy which can be heard the evening before the event and from 8am on the day of the event, throughout the day and after the event has ended. Announcements can last from a couple of minutes to 15 minutes in length and are often repetitive and are more intense before or just after a race, with the announcer becoming increasingly strident when encouraging participants to line up for a race. Summer lunchtime breaks are rare and apparently only take place when council officers or noise consultants are in the locality. 8. … 9. … 10. … Before the events begin the stadium’s music system is operating so loud that you can hear the lyrics and are able to name the tune within the first couple of bars. The PA is also in operation and announcements are as clear as though they were coming from the field by our property. The actual racing generates a variety of loud noise including braking, shunting and smashing of vehicles, accelerating at speed and screeching of tyres, as well as incessant roaring which causes vibration and rumbling that is felt and heard in the farthest room from the noise source with all external and internal windows and doors shut. At the end of the racing, which almost always operates until 11pm and often until midnight, the clean up begins and can take hours with horns and klaxons being let off, generators, flood lights, engines revving, fireworks being set off and music and laughter from those camping over. 11. Sunday afternoon Banger racing can also operate at the same time as the Motocross, which results in Motocross from 10am to 4pm/6pm (Winter and Summer respectively) with the Bangers joining in from 1pm and racing continuing until 9pm. 12. This combination is at its worst when the Motocross operates a two day event (with participants often camping from the previous Thursday training day), what with Greyhound racing on the Friday night, Motocross tannoy announcements starting as early as 8am on Saturday with racing at 10am finishing as late as 6pm, then followed by Banger racing from 6.30pm continuing until as late as midnight followed by the clean up. On Sunday morning, again the tannoy announcements start as early as 8am and racing begins at 10am with either Banger racing/practice joining in at 1pm and finishing as late as 9pm, or Speedway starting at 4pm until 7pm, or at 7pm until as late as 9pm (or 10pm as in 2007). 13. In 2009 on Sunday 14th June a Banger practice session was held from 1pm until 6pm after a Saturday night of Banger racing which ended at 11pm. This was repeated on 9th August again after a Saturday evening of Banger racing. On Friday 24th July participants for a two day Banger event began arriving presumably to watch the Greyhound racing. PA, music, shouting and laughter could be heard at Fenland all evening and at 12.40am fireworks were set off. On Saturday 25th July vehicle modifications and revving began from 10.30am with Banger racing starting at 6.30pm and finishing at 11.10pm followed by the clean up. On Sunday 26th July Motocross tannoy could be heard at 9.30am, 9.40am and 9.50am with racing beginning at 10am. At 10.20am fireworks were set off again and revving and vehicle modifications were competing with the motocross racing. At 1pm the Banger racing began again, finished at 7pm followed by an hour’s clear-up of revving, horns and shouting. Four 2-day Banger Events have been scheduled for 2010 on 12th and 13th (Motocross Event also operating on 13th), and 19th and 20th June, 24th and 25th July (2 day Motocross also operating on both days) and 16th and 17th October (Motocross Event also operating on 17th). 14. Speedway racing operates generally on a Sunday and in the summer can operate at the same time as the Motocross. Again racing is accompanied by music and PA and although the races are of short duration the noise starts with a long roar as the bikes are made ready, and the wailing from the bikes accelerating at the start overwhelms the area and either competes with or masks the motocross noise. Speedway is the only activity that is weather dependent and cannot operate if the track is wet. However any cancelled races are rescheduled later or at the end of the season on a spare weekend or during week nights. This was particularly frustrating in 2007 when Speedway was rescheduled to week nights operating until 10pm at night. 15. Normal operations for Greyhound racing take place on Tuesday, Wednesday and Friday nights finishing at approx 10.30pm. Again Tuesday and Friday evenings include tannoy and music and we can hear the dogs barking and often the sound from the mechanical rabbit as it makes its way around the track. Although the racing is less intrusive than the motorsports at times the cheering from the audience, the music and the tannoy sounds as though it is coming from our garden. 16. Easter is a time that I now dread with excessive activity including Motocross on the Thursday, Banger Racing on Good Friday, Motocross on Easter Saturday and Easter Sunday, and Speedway joining in on the afternoon and evening of Easter Sunday. At Christmas the area becomes a magnet for those wishing to try out their new bikes or let off steam during the holiday period by racing around the droves. On Tuesday 26th December 2006 (Cambridge Junior Motocross Club Winter Championship), Thursday 27th December 2007 (Cambridge Junior Scrambling Club Winter Championship), Sunday 28th December 2008 (CJSC Winter Championship) followed by an Event on Tuesday 30th December, and Sunday 27th December 2009 (CJSC Winter Championship) the motocross operator also took advantage of the lack of enforcement and operated Events during Christmas week, breaching their conditions. Banger Racing operated Sunday 1st January 2006, Monday 1st January and Sunday 30th December in 2007, Sunday 28th December in 2008, and Sunday 27th December 2009. There is not one bank holiday weekend free from all three activities operating throughout the weekend.”[135]Mr. Brooks acquired a property at Isleham Marina in 1994. At paragraph 6 of his first witness statement, dated 9 August 2010, he said:- “Shortly after purchase, I was alarmed to hear very loud motorcycle noise on several occasions and assumed that this was from the Speedway Stadium and that I had been misinformed about the noise levels….”[136]At paragraph 10 of his first witness statement Mr. Brooks said that he also became aware of another type of noise which he discovered was due to banger racing. Then, at paragraph 13, he dealt with the impact of the noise upon himself:- “From purchase in 1994, I worked from my home on the marina as a consultant preparing major tenders for broadcast communication systems but found it very difficult to concentrate as the noise from the MOTOX circuit had become so loud that it could be heard within the building with all the windows and doors closed. It is impossible to shut all the windows in hot weather and sitting outside was most unpleasant because of the frequent noise. This occurred at least twice during the week and on alternate Sundays in the Summer and every weekend in the Winter. This was supplemented by Speedway and Banger Racing events, and noise has at times been experienced for 7 days in 11.”[137]Mr. Brooks ceased to live permanently at Isleham Marina in 2009, but he retained the property. At paragraph 29 of his first witness statement he explained the present position, from his perspective, in relation to the noise generated from activities at the Stadium and the Track:- “My Isleham Lodge has reverted to a holiday home which makes the noise aspect even more sensitive. I have so far not returned there to stay overnight as I can return to Ely if the evening motorsport noise becomes excessive, which it still does. Almost all bank holidays – the times when I would like to enjoy this otherwise tranquil environment – are blighted by appalling loud motor racing activities. In particular Good Friday this year (2010) was very bad and there were activities on all the days of the national holiday except the Monday. I have counted and reported to FHDCup to 7 days of excessive noise in 11 but it would appear that they consider this acceptable.”[138]Mr. Hoskins tends to use his cottage principally at weekends, although he told me that he had not in fact visited it since August 2010. In his witness statement Mr. Hoskins dealt with his view of the noise characteristics of the area of his cottage as follows:- “5. About 3 or 4 years ago I became conscious, when visiting the property at weekends, of what seemed to me to be a substantial increase in activity at the Stadium. It was in use almost every weekend that I visited. In the evening, I could clearly hear the noise of high revving engines and, I think also, the Tannoy system. The engine noise was sufficiently loud to feel intrusive. It encouraged me to go inside rather than remain in the garden. When inside, I was no longer aware of the noise. … 7. On recent visits to the property (May/June/July 2010) I have not been aware of noise to the same extent or indeed at all. I emphasize however that I am not in a position to provide any estimate of the extent to which noise has or has not increased or diminished since 2009. I am simply not there enough to be in a position to know. 8. The property is situated in a location that is generally very quiet. There is a nearby airfield at Mildenhall, used by American Air Force planes which is perhaps a couple of miles away. However, at weekends at any rate, flights are infrequent.”[139]Mr. Hoskins was not really challenged as to the accuracy of his evidence.[140]Dr. Meers told me that he had lived at Isleham Marina for more than 10 years. He is a retired company director, aged 69. At paragraph 2 of his witness statement made for the purposes of this action he said, amongst other things:- “However I am in little doubt that the existing regulations are being ignored. I do not keep a strict record but it seems that the number of days when there is considerable noise nuisance is becoming more and more. I believe there is clear evidence to this effect from those keeping records. The level of noise has been measured from my garden and I gather has been made available to those with an interest in this situation and that the figures exceed those deemed acceptable. I do not know if the motors being used have become more powerful or perhaps there are more of them but the noise level seems to be increasing. It is very doubtful that my sense of hearing is improving! I have had this particular lodge triple glazed so that in my case the noise in the evenings is not a particular problem if I close the windows. But on fine summer evenings it is not pleasant to sit in the garden when the stadium is on the go and the same during the day. I have heard talk that the line of poplar trees is there to stop the noise, but although they have grown quickly they seem to make little difference.”[141]In cross-examination Dr. Meers said that he did not seek to distinguish between activities at the Stadium and activities at the Track in relation to the generation of intrusive noise. He told me that his impression was that there had been an increase over the last ten years in the amount of time spent on noisy activities during the day, that the noise seemed to be increasing, and occurred on more days.[142]The kernel of the evidence of Mr. Anthony Mears was paragraph 5 of his witness statement dated 9 August 2010:- “The noise generated from the activities has long been a problem and an unwelcome disturbance to my peaceful enjoyment of my home and I have on several occasions either telephoned or written to Forest Heath District Council asking for some action to alleviate the problem. A copy of my letter dated 15 May 2008 is attached as an example. Whilst, to be fair, the noise can vary considerably depending on wind direction, there have been many times when it has not been possible to sit in my garden without having to endure an almost constant din which has on occasion carried on throughout the day and into the evening as a result of activities at the motocross track being followed by events at the adjacent stadium. Although many of the residents at the Marina have complained to me in the past, suggestions that they lodge written complaints with FHDC have received little support on the basis that most people regard this [as] a complete waste of time and effort as Council officers do not appear to take any effective action and seemingly treat any complaints which they may receive as very low priority.”[143]As I have noted, the evidence called on behalf of the second to sixth defendants included that of Mrs. Relton, who told me that she had not been much affected by the noise of activities at the Stadium or at the Track whilst she lived at Fenland. Mrs. Relton said that she thought that her husband, from some of whose communications I have quoted, was unusually sensitive to noise.[144]The village of West Row seems to lie something of the order of a mile and a quarter to the south-east of the Stadium and the Track. Mrs. Jeanette Gammon, who lives at The Green, West Row, was called to give evidence on behalf of the second to sixth defendants. She told me in cross-examination that she could hear noise from events, but that she had got used to it, and planned domestic events around when things were taking place at the Stadium or at the Track.[145]The second to sixth defendants also called Mr. Gary Spencer, who lives at Beeches Road, West Row. He told me in cross-examination that he could hear noise from the Stadium where he was, in particular Tannoy announcements and noise from vehicles, but that one would have to be outside of his house to hear these things.[146]Mr. Steven Thompson lives at Belford’s, Kenny Hill Farm. That lies, as the crow flies, something like a mile and a half to the north-east of the Stadium, and rather further from the Track. Mr. Thompson was called to give evidence on behalf of the second to sixth defendants. In cross-examination he said that, depending upon the wind direction, he could hear noise, particularly a humming noise, from activities at the Stadium.[147]The second to sixth defendants also called Mrs. Antonia Le’vell, who lives at County Farm, Cooks Drove, which is about two and a half miles to the north-west of the Stadium. She said that she could hear the buzz of engines in the summer when she had the windows of her home open.[148]The last witness called on behalf of the second to sixth defendants whom I need mention who gave any evidence about the impact upon him of activities at the Stadium or at the Track was Mr. Henry Cave. Mr. Cave lives at Isleham Marina. He explained his position in paragraph 16 of his witness statement:- “I consider Mildenhall Stadium and Motorcross Track to be a fantastic benefit to the community and at no time have events at the Stadium or Track ever caused me any negative impact at all.”[149]The effect of the evidence of witnesses called on behalf of the second to sixth defendants who expressed a view about noise from activities at the Stadium or at the Track thus was that, depending upon the direction of the wind, it could be heard up to two and a half miles away. Those who lived closer than that, like Mrs. Gammon, had got used to the noise, but still seem to have had to organise activities around when events were going to be happening at the Stadium or at the Track. Although this evidence indicated that not everyone, in particular not Mr. Cave, considered that the noise affected him or her or their enjoyment of their property, it seemed to me that in fact the evidence tended to support the case of Miss Lawrence and Mr. Shields, rather than the reverse, because of the substantial distances over which the noise could be heard.[150]Some light was shed on the views of persons resident in the vicinity of the Track concerning the noise generated from activities there after the completion of the attenuation works in 2008 by a petition dated 24 July 2009 addressed to the District Council upon which 23 names of persons described as “Residents of The Green and Cooks Drove, West Row” appeared. One of the names was that of Mrs. Gammon, but she told me that her husband had written her name on the petition and that she had not signed it herself. According to Mrs. Gammon, her husband signed the petition in his own name and hers as he thought that it was a petition against lorries travelling through West Row. How he came to make this mistake is unclear. The petition was in fact in opposition to the application, later withdrawn, of Moto-Land for planning permission for the use of the Track seven days a week. The text of the petition included:- “We live in Cooks Drove and The Green, West Row and some of us are less than 1,000 meters from the track. It is sometimes impossible to be outside when these bikes are operating, despite the earth banking which we would suggest has made little or no difference to the noise levels coming out of the Motocross track. As it stands, any outdoor events such as family barbecues etc., have to be planned around the opening times of the Motocross track. Surely we deserve to have days, particularly at weekends, when we know that the Motocrosswon’t be running (difficult enough already when you take intoaccount the bangers, stock cars and Speedway as well.)”[151]There were put in evidence redacted copies of four letters obtained by Miss Lawrence from residents in the area of the Stadium and the Track. The letters were evidently solicited for the purposes of this action, but their weight is reduced by the fact that neither the names of the writers nor the precise locations in which they reside were revealed.[152]One letter was addressed to the claimants’ solicitors, but was undated. The text was:- “I have been asked by a neighbour to write to you regarding the Moto Land Motocross track at West Row, Mildenhall. Can I please therefore, confirm that I too consider the noise from the Motocross track to be extremely intrusive and very stressful. In fact as I write this letter, on a nice sunny day, I have had to close all my windows because the noise is so loud. This is a Thursday and the circuit has been operating since early this morning. I hope this letter will help you in your case against the operators of the Motocross track. For you information I attach a letter I wrote in 2001 regarding an application by the operators to remove noise monitoring from the site.”[153]Two letters were each dated 19 April 2010. One writer identified, it seems himself, rather than herself, as a self-employed person undertaking building and maintenance work who lived at Isleham Marina. The letter included:- “The Marina complex is a wonderfully relaxing place to live and work, with its lake and waterways full of wildlife. The peace is shattered occasionally by the noise of aircraft going to or from the local U.S. air base but these are over and gone in just a few minutes. The noise emitted from the motor cycle track is another matter entirely. I have in the past objected to planning applications by the track operators, I believe for good reasons. I am not a noise expert and know nothing about decibels and all the other technical jargon thrown about by the professionals, I also know nothing about wind or weather patterns, or how they affect the way noise travels. I do however have ears and can tell when it is noisy and when it is not. The noise I hear regularly from the track varies in volume from sometimes being a bearable humming and buzzing in the background to, on occasion, being very loud indeed and this continues for the entire day, unlike the aircraft I mentioned earlier. On these particularly noisy days it does disturb the peace and tranquillity of the area I live in and becomes very annoying. I have in the past complained to F.H.D.C. on several occasions by telephone but stopped bothering some time ago as nothing seems ever to have been done to stop the nuisance.”[154]The other letter dated 19 April 2010 was also written by a resident of Isleham Marina. The author wrote:- “I am a resident at Isleham Marina and would like to confirm that I find the noise generated by the Motocross activities at West Row objectionable. Many residents of the marina, myself included, wrote to Forest Heath District Council to object strongly to the application last year to extend operating hours by the Motocross operators. On certain days the noise level is such it prevents use of one’s garden, even in the house with windows and doors closed, it is clearly audible. In an area which most residents moved to for a peaceful environment the continuous noise is stressful and severely affects the quality of life on operating days. Many weekends throughout the year when people wish to relax are spoiled by the noise, religious holidays such as Easter also.”[155]The fourth letter was dated 12 July 2010. The copy adduced in evidence seemed to be a typescript of an original manuscript. It read:- “As a nearby resident I write in reference to the noise disturbance caused by the Motocross Track in West Row, Suffolk. We bought our property here in [redacted] and were immediately aware of the problem, particularly under certain weather conditions. I contacted Forest Heath District Council in [redacted] and was asked to monitor noise levels and times. In [redacted] we moved to live at the property full-time and once again became disturbed by the noise. I wrote to the Council to suggest that noise abatement measures could be implemented. Last summer I made an official complaint to the council since the measures appeared to have made little difference and breaches of planning control seemed regular. The Council undertook an investigation with regular monitoring and I received their findings in March 2010. I am happy to provide further information if required.” I am happy to provide further information if required.”[156]Each of these letters addressed only noise from activities at the Track, but each seemed to speak of times after the completion of the attenuation works in 2008. It appeared that it was accepted on behalf of the second to sixth defendants that each letter was what it purported to be, because Miss Lawrence was cross-examined as to whether she had fairly described the position in stating at paragraph 90 of her first witness statement that, “each letter attested to a high degree of continuing disturbance from noise from the motorsport activities”. So far as the latter criticism of Miss Lawrence is concerned, no doubt a lawyer would have been anxious to give a fuller account of the contents of each letter to convey its exact flavour, but it did not seem to me that the words used by Miss Lawrence seriously misrepresented the effect of the letters.[157]As I have already noted, in my judgment the contribution of expert acoustic evidence to the resolution of the questions of whether there had been nuisance by noise to Fenland as a result of the activities at the Stadium or at the Track, and, if so, to what extent and when, was, in principle, rather limited. Given the amount of evidence from witnesses of fact as to the noise experienced, the evidence of the experts was devalued somewhat further.[158]There were two significant differences of approach between Mr. Stigwood and Mr. Sharps. The first concerned how to assess whether the noise generated by activities at the Stadium and at the Track were capable of causing a reasonable person annoyance to a degree amounting to a nuisance. The second concerned whether it was appropriate, in assessing whether the noise generated by the activities at the Stadium and at the Track was capable of causing a reasonable person annoyance to a degree amounting to a nuisance, to take into account as one of the noise characteristics of the locality the noise generated by those very activities.[159]In the Sharps Report Mr. Sharps set out a very helpful explanation of the principles of acoustics, which I think was common ground, and in the same section indicated something of his own approach in this case:- “3.2 Sound levels (otherwise known as “noise levels”) are described in the unit, the “decibel”, or dB. 3.3 The range of sound levels that can be heard is very large; from the threshold of hearing or say a pin dropping, to a jet aircraft. If the sound level was to be described in linear form (as is, say, temperature) then the ratio of the quietest sound to the noisiest would be around 1:1,000,000,000,000. Describing sound levels in this way would be cumbersome and so the range has been collapsed by employing a logarithmic scale with the threshold of hearing at 0 dB (representing 1 on a linear scale) and a jet aircraft at 120 dB (representing 1,000,000,000,000 on a linear scale. 3.4 When two sounds of equal level are added then the increase in sound level will be 3 dB (10 x logarithm of 2/1); four equal sounds would result in an increase of 6 dB (10 x logarithm 4/1); eight sounds 9 dB (10 x logarithm 8/1); and so on. 3.5 However, a change in sound level of less than 3 dB is not perceptible under normal conditions and it requires around a 10 dB change in sound level to double (or halve) the loudness of a sound. 3.6 Sound is transmitted to the ear (drum) by pressure fluctuations in the air at different frequencies (rate of pressure fluctuation). A person perceives the sound level of different frequencies in different ways. In general terms, a person can hear medium frequencies (500Hz, 1000Hz, and 2000Hz) more effectively than lower or higher frequencies. A young person can hear sound from around 20 to 20 000Hz. As one gets older the ability to hear higher frequencies diminishes. 3.7 Frequency is displayed in Hertz (Hz) with 1Hz = 1 cycle/second (i.e. one pressure fluctuation per second). Middle C on a piano is around 250Hz with each octave band (a window of frequencies) being a doubling or halving of frequency (63, 125,250, 500, 1000, 2000Hz). These octave bands can be further divided into third-octave bands. 3.8 To cater for the varying ability of the ear to hear different frequencies, the sound level meter “weights” frequencies differently. This weighting network is termed “A-weighting”. This weighting is used to measure and assess most environmental sounds. 3.9 Sound levels constantly change as a result of local or distant sources. In order to portray this changing sound level over a period of time it is necessary to display the level in a statistical index. The most often used indices are L90: the level exceeded for 90%, that is almost all of the time – used to display the background noise level of an area; LeqT: the average noise energy over a given time period, “T” – used to describe the ambient (all encompassing) sound level or the noise emission level of a particular source; and LMAX: the maximum noise level during a measurement sample period. 3.10 Either the sound level (dB) or the index (e.g. LeqT) is supplemented by the weighting (A) so the term becomes LAeqT = X dB or LeqT = Y dBA. In this report I have included the weighting term A in the index rather than in the level. Thus sound levels are described by the former method – LaeqT = X dB. 3.11 The index LAeqT is used to describe most environmental noise sources and has been used within this report. Where I have simply stated a noise level in terms of its dB level then this means that it is an LAeqT level in dB. 3.12 The time period, T, over which the LAeqT level applies must always be stated, otherwise the level is meaningless. For example, a dog barking for five minutes may generate a noise level of say LAeq5minutes = 50 dB. If displayed over an hour then that same noise level becomes LAeq1hr = 39 dB. If displayed over a 16 hour day th[e]n the level becomes LAeq16hr = 27 dB. It can be seen that a given noise energy, if averaged over a longer time period, reduces in line with the increase in the period (on a logarithmic average basis). 3.13 Different guidance documents advise different time periods for assessments during the day. I have assessed over the duration of the particular event in this case. In doing so I have built in a safety margin in comparison to an assessment undertaken against a benchmark criterion over the whole day period of 16 hours (0700 to 2300 hours).”[160]Thus taking a longer time period for the purposes of assessing the LAeq will reduce the dB level, but as the average over time is calculated on a logarithmic basis the average will tend towards the top end of the range of measurements being averaged.[161]At paragraph 3.14 of the Sharps Report Mr. Sharps explained that:- “Noise impact may be assessed by one of three generic methods or a mixture of these methods: 1 By comparing the noise level of the source with fixed benchmark values or limits. 2 By considering the change in noise level that results from a given activity or equipment. 3. By considering the noise level of the source in the context of the background noise level of the area in the absence of that source.”[162]Mr. Sharps explained at paragraph 3.15 of the Sharps Report that all three of these methods “are widely recognised within the acoustic profession”.[163]In the present case Mr. Stigwood undertook a context type assessment, applying, he told me, the principles of British Standard 4142:1997 “Method for Rating industrial noise affecting mixed residential and industrial areas” (“BS4142”).[164]Of his own assessment Mr. Sharps said in the Sharps Report:- “3.16 In this case, I believe that the assessment should be undertaken by comparing the noise from the circuit against benchmark criteria. 3.17 This is partly because of the difficulty of determining representative baseline noise levels in a noise climate that can vary widely. Without representative baseline noise levels it is not possible to properly determine the change in noise level that results from the activity or the noise level of that activity in the context of the background noise level. 3.18 Moreover, I have been advised that this is a case where the occupants of Fenland have moved to the area fairly recently and certainly after the establishment of the three sources of noise that are asserted to be a nuisance. 3.19 I fully appreciate that the fact that a person comes to an existing noise source is not a defence to nuisance. However, in noise terms, the assessment of impact in relation to “people to noise” is undertaken differently to circumstances where there is “noise to people”. 3.20 Where people come to noise then it is appropriate to consider the acceptability or otherwise of the noise climate to which they have moved. This means that an assessment using noise threshold criteria is appropriate because these threshold levels indicate the acceptability or otherwise of that noise climate (not the effect of the introduction of a new noise source to an established noise climate). 3.21 Where noise comes to people then it is appropriate to determine the effect of that new noise level by either considering the resultant change in the noise climate that result from the introduction of the new source or the noise level of the new source in the context of the pre-existing background noise level of the area to which people have become accustomed.”[165]The starting point in Mr. Sharps’s assessment against benchmark criteria in the present case was to seek to identify the benchmark against which the assessment fell to be made. Mr. Sharps relied upon a report (“the WHO Report”) of the World Health Organisation entitled “Guidelines for Community Noise” published in 1999. A copy of the WHO Report was produced in evidence. It is lengthy, and, no doubt, scholarly. At the trial attention was focused simply on the Executive Summary. That part of the WHO Report included:- “3. Adverse health effects of noise The health significance of noise pollution is given in chapter 3 of the Guidelines under separate headings according to the specific effects: noise-induced hearing impairment; interference with speech communication; disturbance of rest and sleep; psychophysiological, mental-health and performance effects; effects on residential behaviour and annoyance; and interference with intended activities. This chapter also considers vulnerable groups and the combined effects of mixed noise sources. … Social and Behavioural Effects of Noise; Annoyance. Noise can produce a number of social and behavioural effects as well as annoyance. These effects are often complex, subtle and indirect and many effects are assumed to result from the interaction of a number of non-auditory variables. The effect of community noise on annoyance can be evaluated by questionnaires or by assessing the disturbance of specific activities. However, it should be recognized that equal levels of different traffic and industrial noises cause different magnitudes of annoyance. This is because annoyance in populations varies not only with the characteristics of the noise, including the noise source, but also depends to a large degree on many non-acoustical factors of a social, psychological, or economic nature. The correlation between noise exposure and general annoyance is much higher at group level than at individual level. Noise above 80 dB(A) may also reduce helping behaviour and increase aggressive behaviour. There is particular concern that high-level continuous noise exposures may increase the susceptibility of schoolchildren to feelings of helplessness. Stronger reactions have been observed when noise is accompanied by vibrations and contains low-frequency components, or when the noise contains impulses, such as with shooting noise. Temporary, stronger reactions occur when the noise exposure increases over time, compared to a constant noise exposure. In most cases, LAeq,24h and Ldo are acceptable approximations of noise exposure related to annoyance. However, there is growing concern that all the component parameters should be individually assessed in noise exposure investigations, at least in the complex cases. There is no consensus on a model for total annoyance due to a combination of environmental noise sources. 4. Guideline values … Annoyance. The capacity of a noise to induce annoyance depends upon its physical characteristics, including the sound pressure level, spectral characteristics and variations of these properties with time. During daytime, few people are highly annoyed at LAeq levels below 55 dB(A), and few are moderately annoyed at LAeq levels below 50 dB(A). Sound levels during the evening and night should be 5 – 10 dB lower than during the day. Noise with low-frequency components require lower guideline values. For intermittent noise, it is emphasized that it is necessary to take into account both the maximum sound pressure level and the number of noise events. Guidelines or noise abatement measures should also take into account residential outdoor activities. Social Behaviour. The effects of environmental noise may be evaluated by assessing its interference with social behaviour and other activities. For many community noises, interference with rest/recreation/watching television seem to be the most important effects. There is fairly consistent evidence that noise above 80 dB(A) causes reduced helping behaviour, and that loud noise also increases aggressive behaviour in individuals predisposed to aggressiveness. … Table 1 presents the WHO guideline values arranged according to specific environments and critical health effects. The guideline values consider all identified adverse health effects for the specific environment. An adverse effect of noise refers to any temporary or long-term impairment of physical, psychological or social functioning that is associated with noise exposure. Specific noise limits have been set for each health effect, using the lowest noise level that produces an adverse health effect (i.e. the critical health effect). Although the guideline values refer to sound levels impacting the most exposed receiver at the listed environments, they are applicable to the general population. The time base for LAeq for “daytime” and “night-time” is 12 – 16 hours and 8 hours, respectively. No time base is given for evenings, but typically the guideline value should be 5 – 10 dB lower than in the daytime. Other time bases are recommended for schools, preschools and playgrounds, depending on activity. It is not enough to characterize the noise environment in terms of noise measures or indices based only on energy summation (e.g. LAeq), because different critical health effects require different descriptions. It is equally important to display the maximum values of the noise fluctuations, preferably combined with a measure of the number of noise events. A separate characterization of night-time noise exposures is also necessary. For indoor environments, reverberation time is also an important factor for things such as speech intelligibility. If the noise includes a large proportion of low-frequency components, still lower guideline values should be applied. Supplementary to the guideline values given in Table 1, precautions should be taken for vulnerable groups and for noise of certain character (e.g. low-frequency components, low background noise).”[166]The Table 1 referred to included, in the specific environment of “Outdoor living area” an indication that there would be “Serious annoyance, daytime and evening” at an LAeq16hours of 55 dB, with “Moderate annoyance, daytime and evening” at an LAeq16hours of 50 dB. In the environment of “Dwelling, indoors” there would be “Speech intelligibility & moderate annoyance, daytime and evening” at an LAeq16hours of 35 dB. In the environment of “Inside bedrooms” there would be “Sleep disturbance, night-time” at an LAeq8hours of 30 dB.[167]What Mr. Sharps deduced from the WHO Report, at paragraph 3.32 of the Sharps Report, was that:- “The WHO advises that to protect the majority of people from being seriously annoyed during the daytime, the “steady continuous” noise at dwellings should not exceed 55 dB … I do not believe that this advice restricts the use of the guideline values, discussed above, to just steady continuous noise. Indeed, as discussed below, the guideline values have been used as the basis of noise limits for many sources that are not steady and continuous.”[168]As we shall see, Mr. Sharps essentially interpreted the WHO Report as indicating that any reasonable person would not be affected by a noise which did not exceed an LAeq16hours of 55 dB. Thus he concentrated upon the “Serious annoyance” indication, in preference to the “Moderate annoyance” indication, in Table 1 in relation to the environment of “Outdoor living area”. He seems to have discounted the comment in the Executive Summary of the WHO Report, “The capacity of a noise to induce annoyance depends upon its physical characteristics, including the sound pressure level, spectral characteristics and variations of these properties with time.”, when expressing his view that guideline values should be used even if noise was not steady and continuous. He also seems to have discounted the observation in the Executive Summary about annoyance that, “Sound levels during the evening and night should be 5 – 10 dB lower than during the day”, preferring to take from Table 1 that the decibel levels there noted in respect of “Outdoor living area” were indicated as applicable “daytime and evening”.[169]The next stage in Mr. Sharps’s consideration was to interpret what he deduced from the WHO Report against the background of a report (“the NPL Report”) of the National Physical Laboratory dated September 1998 and entitled “Health Effect Based Noise Assessment Methods: A Review and Feasibility Study”.[170]Before coming to Mr. Sharps’s interpretation of the WHO Report against the background of the NPL Report, it is necessary to identify that at which the NPL Report was aimed. The NPL Report commenced with an Abstract:- “The UK Department of Environment (DETR) requested the National Physical Laboratory (NPL) together with the Institute of Sound and Vibration Research (ISVR), to review noise standards used for assessing the health impact of environmental noise. The aim of this work was to advise the DETR of the extent to which it is justifiable to use existing knowledge on potential health effects to define future noise standards and targets. The literature confirms that there are a number of potential effects of noise on health, although the evidence in support of actual health effects other than those based on reported bother or annoyance and on some indicators of sleep disturbance is quite weak. Although the scientific evidence suggests thresholds below which it is unlikely that there is an impact on health, we cannot interpret these as definitive at this time. Existing standards and regulations usually take the results of primary research into account to some extent, but social, political and historic factors are at least as important. The 1995 WHO guideline criteria are interpreted as a precautionary approach to setting criteria. It is concluded that given the present state of knowledge, it would be unwise to base future environmental noise standards and regulations on what are at present hypothesised non-auditory health effects until future research can make the present confused situation clearer. An increased emphasis on non-auditory health effects, as opposed to annoyance, as the outcome variable may lead to greater transparency in the development of standards, although there is considerable doubt as to the magnitude of these effects. To ensure that non-auditory health effects are included in future standards, research is required. This must be carefully designed, not only in terms of its planning and execution, but also in terms of setting precisely defined and achievable objectives.”[171]What the NPL Report was focused on was thus evaluating the evidence to justify fixing particular noise standards with a view to avoiding potential health effects. The evidence of actual health effects, other than in relation to annoyance, was thought to be “quite weak”. Further research was necessary.[172]At Section 5 of the NPL Report the authors responded to a request from the Department of Environment for “an interpretation of the recent WHO guidelines”. The guidelines in question were included in a paper published in 1980, called in the NPL Report “WHO 80”, and a paper entitled “Community Noise” written by Birgitta Berglund and Thomas Lindvall and published in 1995, called in the NPL Report “BERGLUND 95”. At Section 5.2 of the NPL Report it was explained that:- “The main premise underlying the two WHO-inspired noise guideline documents (1980 and 1995) is that excessive exposure to community and environmental noise damages health. It is well known that excessive noise exposure in an industrial context can damage hearing, but the true effects of community and environmental noise in a residential context are more controversial. The various WHO guideline values for the range of noise effects are given in table 5. These are included in our earlier table 3 to some extent as BERGLUND 96 [a different paper from BERGLUND 95]. It is immediately apparent when comparing the 1980 and 1995 guideline values that there is a lack of consistency in the definitions of the different effects of noise considered, and the units in which the guideline values are specified. [Examples were then given].”[173]Following the comparison and contrasting of material in WHO 80 and BERGLUND 95 in Section 5.2 of the NPL Report, Section 5.3 was entitled “Interpretation”. It included:- “The most important factor to be borne in mind when interpreting the guideline values given in either of the 1980 or 1995 WHO-inspired noise criteria documents is that neither set actually has any official status. The fact that the guideline values in each case are based on a consensus reached by an invited group of international experts in the field lends them credibility, but, in such a complex field, it is inevitable that individual experts will disagree to some extent. For this reason, any attempt at formal ratification of the guideline values by any form of international voting would probably be doomed to failure. On the other hand, both documents represent a considerable amount of careful and detailed analysis of the available literature and are extremely valuable for that reason alone. If the basic validity of the guideline values given in the WHO-inspired documents is accepted, and ignoring the minor differences between the 1980 and 1995 versions and any minor controversies raised by differences between individual expert opinions, the next step is to consider how the guidelines might be interpreted in future noise regulations and standards. This is basically quite straightforward, in that apart from the 1980 suggested ‘general environmental health goal’ of 55 LAeq for daytime outdoor noise levels, virtually all of the guideline values are specified at the lower threshold below which the occurrence rates of any particular effect can be assumed to be negligible. It can be concluded that the guidelines do provide useful guidance as to the lower threshold levels below which residual noise impacts can probably be considered as negligible (threshold X on the curve given in figure 5). They can therefore be considered as ‘desirable’ and ideal targets. While in an ideal world it may be desirable for none of these effects to occur, in practice a certain amount of noise is inevitable in any modern industrialised society. Perhaps the main weakness of both WHO-inspired documents is that they fail to consider the practicality of actually being able to achieve any of the stated guidelines. We know from the most recent national survey of noise exposure carried out in England and Wales (SARGENT 93) that around 56% of the population are exposed to daytime noise levels exceeding 55 LAeq and that around 65% are exposed to daytime noise levels exceeding 45 LAeq (as measured outside the house in each case). The value of 45 LAeq night-time outdoors is equivalent to the 1995 WHO guideline value of 30 LAeq night-time indoors allowing 15 dB attenuation from outdoors to indoors for a partially open window (for free-air ventilation to the bedroom). The percentages exposed above the WHO guideline values could not be significantly reduced without drastic action to virtually eliminate road traffic noise and other forms of transportation noise (including public transport) from the vicinity of houses. The social and economic consequences of such action would be likely to be far greater than any environmental advantages of reducing the proportion of the population annoyed by noise. In addition, there is no evidence that anything other than a small minority of the population exposed at such noise levels find them to be particularly onerous in the context of their daily lives. In view of the uncertainties involved in setting standards, the WHO guidelines might be considered as a highly precautionary approach if used when setting future noise standards and regulations to protect against possible health effects. While this precautionary approach may be justified by the scientific plausibility of these effects, it is necessary to place these possible effects in proper perspective. An over-precautionary approach to setting future noise standards and regulations at too low levels might lead to unacceptable impacts on other areas.”[174]The main points which seem to emerge from that part of Section 5 of the NPL Report are, first, that the WHO 1980 and 1995 guidelines were products of compromise between a variety of experts; second, that the guidelines were set at levels such that the occurrence of any particular health effect below the relevant level could, in the opinion of the authors of the NPL Report, be considered to be negligible; and, third, that achieving the relevant levels was likely either to be impractical or to produce adverse effects in other ways.[175]I have set out the whole of Section 5.3 of the NPL Report as it seemed to me to be important to set in context Section 5.4, entitled “Summary”, upon which Mr. Sharps appeared to place particular reliance. Section 5.4 was in these terms:- “In essence, the WHO guidelines represent a consensus view of international expert opinion on the lowest threshold noise levels below which the occurrence rates of particular effects can be assumed to be negligible. Exceedances of the WHO guideline values do not necessarily imply significant noise impact and indeed, it may be that significant impacts do not occur until much higher degrees of noise exposure are reached. One difficulty here is the true importance of the different noise effects considered when placed in an overall context relating to quality of life, and the extent to which noise control might have excessive consequences in other areas of human experience. As such, it would be unwise to use the WHO guidelines as targets for any form of strategic assessment, since, given the prevalence of existing noise exposure at higher noise levels, there might be little opportunity for and little real need for any across the board major improvements. On the other hand, the most constructive use for the WHO guidelines will be to set thresholds above which greater attention should be paid to the various possibilities for noise control action when planning new developments. It is important to make clear at this point that exceedances do not necessarily imply an over-riding need for noise control, merely that the relative advantages and disadvantages of noise control action should be weighed in the balance. It is all a question of balance, and mere exceedance of the WHO guidelines just starts to tip the scales.”[176]In the Sharps Report at paragraphs 3.38 and 3.39 Mr. Sharps quoted selectively from the two paragraphs to be found in Section 5.4 of the NPL Report. What he derived from the selection he made was:- “3.40 “Much higher degrees” is not defined by NPL but a change in noise level of 10 dB is a doubling of loudness (ref glossary of PPG 24 – my appendices page 40). A “significant” change in noise level is usually taken to be 6 dB when undertaking an environmental impact assessment. 3.41 On this basis I conclude that significant “serious annoyance” may not occur until sound levels reach around 55 + 6 = 61 dB(LAeqT).”[177]As it seemed to me, that analysis was not supported either by the WHO Report or by the NPL Report. The NPL Report, of course, antedated the WHO Report. Mr. Sharps recognised that. At paragraph 3.34 of the Sharps Report Mr. Sharps said of the NPL Report that, “This report considered a draft of the WHO Guidelines discussed above. This WHO draft was not materially different to [sic] the final version.” While the guidelines in the WHO Report appear to have been foreshadowed in the 1995 Berglund and Lindvall paper, that paper, of which a copy was put in evidence, did not appear to be a draft of the eventual WHO Report. The latter said of itself on the front page that it was the outcome of a WHO expert task force meeting held in London in April 1999 and that “It bases on” the 1995 paper.[178]The interpretation of the significance of the guideline levels in the WHO Report, adopting those of the 1995 paper, given in the NPL Report appears to be that of the authors of the NPL Report, rather than an interpretation adopted by the authors of the WHO Report. However, more important for present purposes is that those guidelines were considered in the NPL Report simply in the context whether those guidelines were suitable for adoption as standards in the United Kingdom. The conclusion of the authors was in the negative, for the reasons given in the passages which I have quoted. The authors were not concerned to specify any level of noise which should be considered as tolerable by any reasonable person, yet that seems to be precisely what Mr. Sharps has sought to find in the NPL Report. The authors of that report seem studiously to have avoided expressing any view on that point, emphasising, in the Abstract, the need for further research.[179]Mr. Sharps also made mention in the Sharps Report of Planning Policy Guidance 24, entitled “Planning and Noise” (“PPG24”), issued by the Department of the Environment in September 1994. Annex 1 to PPG24 is entitled “Noise Exposure Categories for Dwellings”. It contains a classification of Noise Exposure Categories (“NECs”) between A and D. NEC A is that in which “Noise need not be considered as a determining factor in granting planning permission, although the noise level at the high end of the category should not be regarded as a desirable level”. The only interpretation of NECs is in a table in Annex 1 entitled “Recommended noise exposure categories for new dwellings near existing noise sources”. The table sets out different levels of noise in decibels for each NEC in respect of each of four noise sources. Three of those noise sources are road traffic, rail traffic and air traffic. The fourth is described as “mixed sources”, defined as “any combination of road, rail, air and industrial noise sources”. A different decibel level for each NEC and each noise source is stated for the hours 07:00 – 23:00 and for the hours 23:00 – 07:00. For mixed sources the levels are less than 55 decibels between 07:00 and 23:00 and less than 45 decibels for the remainder of a day.[180]At paragraph 3.45 of the Sharps Report Mr. Sharps said:- “Although the NEC A limit of 55 dBA applies to an assessment of sites for proposed housing, experienced acoustic consultants often also use it to assess the impact of noise sources.”[181]In a part of Section 3 of the Sharps Report beneath the rubric “Summary of assessment criteria” Mr. Sharps set out his conclusions on the appropriate approach to assessment:- “3.72 On the above basis I conclude that in terms of an objective analysis, serious annoyance would be negligible at levels of noise emission from the site below LAeqevent = 55 dB. 3.73 In my judgment this criterion is robust because it has been used in relation to the noise emission level from site activity over the duration of that activity rather than averaged over a 16 hour day period. 3.74 The NPL report notes that significant effects may not occur until much higher degrees of exposure than the WHO guideline values discussed above. NPL do not advise what levels constitute “much higher degrees of exposure” but a 10 dBA change in noise level is a doubling of loudness and a 6 dBA change is significant. 3.75 On this basis significant effects, in terms of serious annoyance, may not occur until a level of LAeqevent = 61 dB. 3.76 These criteria specifically relate to serious annoyance. However, I believe that these criteria are also indicative of nuisance or otherwise, in this case.”[182]BS4142, in a Foreword, states in terms that:- “Although, in general, there will be a relationship between the incidence of complaints and the level of general community annoyance, quantitative assessment of the latter is beyond the scope of this standard, as is the assessment of nuisance.”[183]Consequently BS4142 deliberately sets out not to masquerade as a means of evaluating noise nuisance. In the Foreword it also says:- “Response to noise is subjective and affected by many factors (acoustic and non-acoustic). In general, the likelihood of complaint in response to a noise depends on factors including the margin by which it exceeds the background noise level, its absolute level, time of day, change in the noise environment etc, as well as local attitudes to the premises and the nature of the neighbourhood. This standard is only concerned with the rating of noise of an industrial nature, based on the margin by which it exceeds a background noise level with an appropriate allowance for the acoustic features present in the noise. As this margin increases, so does the likelihood of complaint.”[184]Without wishing to cast aspersions upon the professionalism of the authors of BS4142, that paragraph does seem to me to come close to a statement of that which is fairly obvious, even to those not professionally qualified in acoustics, and applicable to any situation in which noise is generated, not simply that in which the noise is industrial in origin.[185]The scope of BS4142 is explained in paragraph 1:- “This British Standard describes methods for determining, at the outside of a building: a) noise levels from factories, or industrial premises, or fixed installations, or sources of an industrial nature in commercial premises; and b) background noise level. The standard also describes a method for assessing whether the noise referred to in (a) is likely to give rise to complaints from people residing in the building. The method is not suitable for assessing the noise measured inside buildings or when the background and rating noise levels are both very low. …”[186]It is not necessary, for the purposes of this judgment, to consider the actual mechanics of the method explained in BS4142. Essentially what is measured is the background noise level, that is to say, the noise level without the noise produced by the relevant industrial activity, and then the noise produced by that industrial activity, which is called, for the purposes of BS4142, “the rating level”. What one then does is explained in paragraph 9:- “Assess the likelihood of complaints by subtracting the measured background noise from the rating level. … The greater this difference the greater is the likelihood of complaints. A difference of around +10 dB or more indicates that complaints are likely. A difference of around +5 dB is of marginal significance. If the rating level is more than 10 dB below the measured background noise level then this is a positive indication that complaints are unlikely.”[187]The expert contribution to what again otherwise seems to be a glimpse of the blindingly obvious is to identify particular decibel levels in excess of the background noise level which are likely to produce, or not, complaints.[188]Mr. Sharps’s explanation for discounting an assessment of the type contemplated by BS4142 in the present case he gave at paragraph 3.50 of the Sharps Report:- “… this is not a situation where a noise source has recently been introduced into a settled noise climate – as such, the noise from the stadium and motocross track are part of the background noise level of the area.”[189]I am afraid that I do not understand the logic of that objection. There are times when there are no activities either at the Stadium or at the Track. At those times, on the evidence which I think was not in dispute, there are possibly two situations in which a background noise can be established, one when aircraft in the immediate vicinity are making a contribution to the noise, and one when they are not. Mr. Sharps accepted in cross-examination that it was possible to make noise measurements in such situations. It is also obviously possible to compare the measurements made in those situations with measurements made when activities are taking place at the Stadium and/or at the Track. Those measurements can be compared. A comparison of those measurements indicates to what extent the noise is greater when there are activities at the Stadium and/or at the Track. What the comparison of itself cannot demonstrate is whether the degree by which the noise when activities are taking place at the Stadium and/or at the Track exceeds the background noise level, with or without an aircraft contribution, is in fact a nuisance. So far as that is concerned Mr. Mumford, who was called as a witness pursuant to the issue of a summons on behalf of the second to sixth defendants, told me that, in his experience as a Principal Environmental Health Officer, there is nothing to beat going to the site of the alleged nuisance and hearing it. I find that common sense approach both refreshing and entirely convincing.[190]In the Sharps Report Mr. Sharps explained that he had measured noise levels at the façade of Fenland on a number of occasions. Specifically:- “4.2 This section discusses surveyed noise levels during speedway races on Sunday30th May and Sunday 6th June 2010; surveyed noise levels during stock car races on Saturday 29th May 2010 and Sunday 13th June 2010; and surveyed noise levels of motocross practice sessions on Tuesday 25th May 2010 and Thursday 3rd June 2010 and of a motocross race on Sunday 13th June 2010. 4.3 On the six occasions that I have surveyed, the wind direction was blowing directly from the stadium/motocross track directly towards Fenland on two days: Saturday 29th May 2010 and Sunday 13th June 2010. There were stock car and motocross events on these days.”[191]Mr. Sharps went on to explain the methodology of measuring which he adopted:- “4.6 The levels displayed are the “ambient noise levels”, that is, they are the all-encompassing noise levels during the periods when events were being held at the stadium or motocross track. These levels will include a component of noise from activity other than from the stadium or track. This component will vary depending on the noise emission level of the event – this in turn is influenced by the wind direction. In some cases it is impossible to preclude this component of noise. 4.7 However, the assessment criteria relate to the overall noise level in an area and not to one component of noise (such as the emission level from the stadium or track). Therefore it is correct to compare the ambient noise level recorded during a stadium or track event directly with the assessment criteria. 4.8 Moreover, it is accepted that when the noise emission levels from the stadium or track events are at their highest (when Fenland is downwind or in neutral cross-wind conditions) then the component of noise from extraneous sources will be low relative to the noise from the stadium or track. 4.9 Therefore, I have compared the ambient noise levels during stadium or track events directly with the assessment criteria. 4.10 The assessed noise levels are maximum (Fenland downwind) or almost maximum (neutral wind or crosswind). The difference in noise level between these two wind conditions will be some 2 dB.”[192]On 30 May 2010, Mr. Sharps said, he was not able to take measurements at Fenland because the wind was in the north-west or west-north-west. In other words, Fenland was upwind of the Stadium and the Track, and noise from the activities at those sites could not be heard at Fenland. He took his measurements at a location to the south-east of the Stadium. On 6 June 2010 the wind was between west-north-west and north, but Mr. Sharps was able to take measurements at the boundary of Fenland.[193]The measurements of speedway racing which Mr. Sharps took on 30 May 2010 were limited to a preparatory race and then races 1 and 2. From these results, each measured at LAeq1min, he extrapolated. The actual measurements were, for the preparatory race, 59.7 dB; for race 1, 70.2 dB; and for race 2, 70.9 dB. Mr. Sharps used the two race measurements to calculate an equivalent value for a whole speedway event that day of 56 dB as follows:- “4.22 I recorded noise levels over a sample of two races of LAeqT = 70.2 and 70.9 dB over samples of one minute duration … 4.23 Using an average LAeq1minute = 70.6 dB, the noise emission from the 13 speedway races, between 1700 and 1900 hours, can be calculated to be LAeqevent = 60.9 rounded to 61 dB at the measurement location (70.6 – 10 logarithm 13/120 minutes) and LAeqevent = 53 at Fenland (-8 dB for screening and radiation effects between the locations). This is a worst-case, downwind level in free-field. 4.24 These sound levels apply in free-field conditions, that is, away from any reflections from buildings or structures. When a sound reaches a building façade it can increase by some 3 dB due to the reflection of sound from that façade. The assessment criterion of 55 dB is a façade level and so, this + 3 dB “façade effect” must be added to the measured levels so that they can be compared directly to the assessment criterion. 4.25 Accordingly, the façade noise level is LAeqevent = 53 + 3 = 56 dB. This is a worst-case ambient noise emission (downwind), at the façade of Fenland, during a speedway event.”[194]Obviously what Mr. Sharps has done on this occasion is to measure, not at Fenland, two out of 13 speedway races, extrapolate from the average of those two on the assumption that that average represented the actual noise level of all 13 races, reduce the result of that extrapolation by an amount of 8 decibels and add 3 decibels back. The figures of 8 decibels and 3 decibels appear to be important to Mr. Sharps’s conclusion, but the calculation of neither figure was explained in detail. While it may be that the extrapolation from the noise levels of two measured races to 13 did not produce any distorted result, Mr. Sharps did not really explain why he did not simply measure the noise levels of all thirteen races over the total duration of the speedway event.[195]On 6 June 2010 Mr. Sharps did measure the noise levels generated by each of eleven speedway races. The noise levels measured did vary, between a low of 42.9 dB for race 1 to a high of 52.4 dB for race 6. As 10 dB represents a doubling of the noise level, that seems to be a significant range. It may also be significant that the noise levels increased from those measured for the first four races (all but one less than 48 dB, the exception being race 2 at 49 dB), to those measured for the last seven (only one, race 9 at 49.3 dB, less than 50.5 dB). Mr. Sharps averaged the noise levels into two periods, 16:00 – 17:00 hours, the hour before the racing started, and 17:00 – 18:10 hours. For the first period the average was 43.7 dB. For the second it was 45.9 dB. Those were averages, it seems, across the whole of each time period, that is to say, including periods between races in the latter case. At paragraph 4.28 of the Sharps Report Mr. Sharps explained that an average of the noise levels during races 2 to 11 inclusive was 50.5 dB. At paragraph 4.29 he stated that:- “The average level of LAeq1minute = 50.5 dB over ten races equates to a noise emission over the seventy minutes duration of this event of LAeqevent = 42.0 dB (50.5 – 10 logarithm 10/70 minutes).”[196]Thus what Mr. Sharps was doing was to include the intervals between races in order to reduce the measured noise levels of the period between the start of racing and the conclusion of racing. Someone simply listening to the noise from afar, such as at Fenland, would probably be struck by the loud increase in noise during the actual races.[197]When looking at Mr. Sharps’s measurements of the noise generated by stock car racing a similar picture emerges. On 29 May 2010 Mr. Sharps did two things. He measured noise levels over periods of ten minutes between 18:30 hours and 23:00 hours and he also measured the noise levels during actual races. The ten minute noise levels ranged between 45.2 dB at 23:00 hours and 57.8 dB at 19:50 hours, producing an average over the four and a half hour period of 52 dB. However, during the actual races the lowest average noise level, for the last race, was 50.6 dB, whilst the highest, for the fourth race, was 58.5 dB. Maxima within the average measured noise levels for particular races were much higher.[198]On 13 June 2010 Mr. Sharps did not, apparently, measure noise levels generated by stock car racing over the duration of a race, but only in ten minute segments during the whole period from 13:30 – 16:50 hours. That period included motocross activity at the Track until 16:00 hours. Even the segments into which Mr. Sharps divided the period showed a considerable range of measurements, from a low of 49.4 dB at 13:40 to a high of 62.2 dB at 15:40. Mr. Sharps’s average noise measurement for the period 13:30 – 17:00 was 56.5 dB.[199]Mr. Stigwood also took noise measurements on 13 June 2010, from 11:45 hours until 16:19:30 hours. The measurements which he exhibited to his second report, dated 18 August 2010, were taken, I think, eight times a second. The results were illustrated graphically with peaks and troughs, and there was some annotation to describe particular parts of the recording, like bird noise and a gun shot, as well as activities on the Track or at the Stadium. Mr. Stigwood summarised his results in Table 1 of his second report (“the Stigwood Table”) as showing, over the period he was recording, noise levels of between 53 dB and 62 dB attributable to motor sport, with a maximum of 77 dB. The actual graphs, exhibited in Appendix 1 to the report, included a line on each page showing “Period LAeq”. Each page showed measurements in a particular 15 minute period, so the LAeq, as I understood it, related to that period. The range of LAeqs was between about 47 dB between 11:45 and 12:00, and about 62 between 15:45 and 16:00. As it seemed to me, there was a close correlation between the measurements of Mr. Stigwood and Mr. Sharps of noise levels on 13 June 2010 over the period when both of them were taking readings.[200]In the Sharps Report Mr. Sharps explained that he had sought to measure noise from activities on the Track on three occasions. One of those was on 13 June 2010, with the outcome which I have already noted. On 25 May 2010, according to Mr. Sharps the noise from motocross was barely audible and did not affect the ambient noise. On the second occasion, 3 June 2010, the only data supplied by Mr. Sharps as an appendix to his report was an LAeq covering the whole of the period from 13:30 – 15:45 hours of 56.7 dB, with a maximum noise level of 80 dB.[201]At Table 5 of the Sharps Report Mr. Sharps concluded that the noise levels at Fenland in 2010, based on his measurements, in neutral wind conditions were: for speedway activities 54 dB; for stock car racing 55 dB; and for motocross activities 46 dB. Each of these figures he increased by 2 dB if Fenland was downwind of the activity in question. Mr. Sharps had not made any measurements of noise levels prior to 2010. However, he predicted, in Table 7, the noise levels prior to the carrying out of the works the subject of the abatement notices in 2007, in neutral wind conditions, at 58 dB for speedway and at 59 dB for stock car racing. Again those figures were increased by 2 dB if Fenland was downwind of the activity generating the noise. In Table 8 Mr. Sharps predicted the noise level in neutral wind conditions generated by motocross activities at 51 dB at Fenland. The overall conclusions of Mr. Sharps were that the activities at the Stadium and at the Track did not constitute a nuisance either before the execution of the works the subject of the abatement notices or afterwards. As I understood it, the conclusions were based on the fact that the predicted noise levels in respect of the period prior to the works undertaken in 2008 – 2009 were less than the 61 dB which Mr. Sharps had mentioned, and the fact that, after the completion of those works his assessment of the noise levels was less than the WHO guideline figure of 55 dB.[202]I am afraid that I formed the view that Mr. Sharps’s approach was essentially juggling with numbers to seek to produce an apparently soundly-based scientific case that Miss Lawrence, Mr. Shields, and the other witnesses upon whose evidence they relied, could not have endured the noise nuisance of which they complained because the science showed, it was said, that it was impossible to cause nuisance at the levels which Mr. Sharps noted. The fact is that just about every witness who expressed a view said that the noise from the activities at the Stadium and at the Track was audible, in one case up to two and a half miles away. The witnesses who were called on behalf of the second to sixth defendants by and large said that they did not mind the noise, or that they had got used to it. They mostly lived to the south-east of the Stadium and the Track and/or at a considerable distance from them. The exception was Mrs. Relton. The witnesses called on behalf of Miss Lawrence and Mr. Shields occupied properties to the west (Mr. Hoskins) or south-west (Isleham Marina) and were rather nearer, on the whole, to the Stadium and the Track than the witnesses called on behalf of the second to sixth defendants.[203]What was clear from Mr. Sharps’s measurements, and was borne out by the recordings of measurements annexed to the second report of Mr. Stigwood, was that noise from the activities at the Stadium and at the Track, after the completion of the works undertaken in 2008 – 2009, was intermittently much louder, typically by 10 dB, than the ambient noise level leaving out of account those activities. It is, in my judgment, those dramatic increases in loudness which really constitute the nuisance in the present case, in other words the contrast between the loud levels and the noise levels prevailing when there was nothing going on at the Stadium or at the Track. Considerations of absolute levels of noise, what Mr. Sharps called “threshold” or “benchmark” values, did not seem to me to be of assistance.[204]As I have noted, Mr. Stigwood was first instructed on behalf of Miss Lawrence and Mr. Shields in 2007. He produced a first report dated 25 November 2007 of which a copy was put in evidence. For present purposes it is not necessary to consider that first report in any detail. In the Stigwood Table Mr. Stigwood helpfully set out the results of some of his noise measurements in 2007. On 18 August 2007 he measured the noise of speedway activities at the Stadium at 64 dB. On 15 September 2007 he measured the noise of banger racing at the Stadium at 63 dB, falling to 54 dB after 23:00 hours. On 23 September 2007 he measured motocross at the Track at 62 dB, falling to 54 dB at night. Those 2007 actual measurements were rather higher, in the case of motocross some 10 dB higher, than Mr. Sharps’s predictions. I accept Mr. Stigwood’s actual measurements, which were not, as such, challenged, in preference to Mr. Sharps’s predictions of typical noise levels before the 2008 – 2009 works.[205]Mr. Stigwood’s actual measurements of noise generated from activities at the Stadium and at the Track in 2009 and 2010, which again were not, as such, challenged as to their accuracy, indicated that there was no consistency in the noise experienced at Fenlands. I have already mentioned the results obtained on 13 June 2010 as summarised in the Stigwood Table. On 8 June 2010 Mr. Stigwood was only able to measure the noise of a single motorbike before rain stopped measurements, so perhaps it is not appropriate to place much weight upon that measurement. On 20 July 2010 Mr. Stigwood took measurements not at Fenland, but at another location, so once more perhaps undue weight should not be placed on the reading. However, other measurements of motocross activities produced readings of 52 dB on 14 July 2009, 62 dB on 26 July 2009 and 44 dB on 24 July 2010. Mr. Stigwood measured a short period of banger racing on 26 July 2009 when he recorded a level of 64 dB.[206]In the course of the evidence a number of suggestions were made as to why the noise levels of particular activities at the Stadium and at the Track might vary. An important one was the wind direction, upon which everyone who expressed a view agreed. Another was the size of motorbikes being used for motocross, with 250 cc bikes apparently being less noisy than the other size used, 450 cc. The number of participants in a race was suggested as relevant to the noise levels. However, as I understood it, in speedway racing only one size of engine, 500 cc, is used, and the number of participants in a race is fixed at four. However, what does appear from the measurements of Mr. Stigwood is that the absolute noise levels generated by the same activities do vary. That suggests an ability on the part of those organising the activities to control the amount of noise generated, at least to a degree.[207]In the result I am satisfied that the operation of activities at the Stadium both before and after the 2008 – 2009 works constituted a nuisance, by reason of the noise generated, to Miss Lawrence and to Mr. Shields, and that the activities at the Track, again, both before and after the 2008 works, also generated a nuisance by noise. I accept the evidence of Miss Lawrence and Mr. Shields that the noise has continued to be a nuisance after the completion of the attenuation works, and that the sources of nuisance are both the activities at the Stadium and the activities at the Track. That the activities at the Track were likely to continue to generate nuisance by noise Mr. Mumford anticipated at the beginning of 2010. He was right to do so. He was also right to anticipate that nuisance by noise was likely to be caused to the occupiers of Fenland when racing was taking place simultaneously at the Stadium and at the Track. However, if Mr. Mumford considered that the effect of the works undertaken at the Stadium in 2008- 2009 was that activities there would no longer generate nuisance by noise if the only activities were at the Stadium, and there were not also activities simultaneously at the Track, I think that the evidence demonstrates that he was in error.

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[208]As an alternative to the denial on the part of the second and sixth defendants that the operation of the Stadium at any point after January 2006 had been such as to cause a nuisance by noise to the occupiers of Fenland, it was contended that the Stadium, but not the Track, had the benefit of a prescriptive right to cause a noise nuisance. That right had been acquired, so Mr. McCracken submitted, either under Prescription Act 1832 s.2, or by the operation of the doctrine of lost modern grant.[209]Prescription Act 1832 was not drafted in the form of statute currently in use. However, s.2 and s.4, in the form in which they have been amended over the years, are in these terms:- “2. No claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water of our said lord the King … or being parcel of the duchy of Lancaster or of the duchy of Cornwall, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing. 4. Each of the respective periods of years herein-before mentioned shall be deemed and taken to be the period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question; and … no act or other matter shall be deemed to be an interruption, within the meaning of this statute, unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or authorizing the same to be made.”[210]A convenient summary of the law as to lost modern grant is to be found in the judgment of the Court of Appeal, delivered by Buckley LJ, in Tehidy Minerals Ltd. v. Norman [1971] 2 QB 528 at page 552A – C:- “In our judgment Angus v. Dalton (1877) 3 QBD 85; (1878) 4 QBD 162; (1881) 6 App Cas 740 decides that, where there has been upwards of 20 years’ uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless, for some reason such as incapacity on the part of the person or persons who might at some time before the commencement of the 20-year period have made a grant, the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made. If this legal fiction is not to be displaced by direct evidence that no grant was made, it would be strange if it could be displaced by circumstantial evidence leading to the same conclusion, and in our judgment it must follow that circumstantial evidence tending to negative the existence of a grant (other than evidence establishing impossibility) should not be permitted to displace the fiction. …”[211]As Dillon LJ pointed out in Mills v. Silver [1991] Ch 271 at page 281G – page 282A:- “It is to be noted that a prescriptive right arises where there has been user as of right in which the servient owner has, with the requisite degree of knowledge, which is not in issue in the present case, acquiesced. Therefore mere acquiescence in or tolerance of the user by the servient owner cannot prevent the user being user as of right for the purposes of prescription. Equally, where Lord Lindley says that the enjoyment must be inconsistent with any other reasonable inference than that it has been as of right in the sense he has explained, he cannot be regarding user with the acquiescence or tolerance of the servient owner as an alternative reasonable inference which would preclude enjoyment as of right from being established. A priori, user in which the servient owner has acquiesced or which he has tolerated is not inconsistent with the concept of user as of right. To put it another way, user is not “precario” for the purposes of prescription just because until 20 years have run, the servient owner could stop it at any time by issuing his writ and asking for an injunction.”[212]The necessity for there to be a user as of right if a prescriptive right is to be acquired is, I think, important in the present case. At paragraph 25 of his written opening skeleton argument Mr. McCracken formulated the right which had allegedly been acquired by prescription in this way:- “The prescriptive right claimed is a right to use the Stadium, or permit to be used, for:a. Speedway racing and practising between the hours of 7am and 10pm; andb. Stock car and banger racing and practising for up to 20 separate dates per annum commencing between 1.30pm and 2.30pm or between 7pm and 8pm and ending in either case no later than 10pm; notwithstanding the fact that the noise emitted by these activities would otherwise be a nuisance to Fenland.”[213]That formulation, as it seems to me, rather conflates two different things, the use which can be made of the Stadium and the noise which can be generated in the course of that use. RDC Promotions can use its own land, subject to having any necessary planning permission, for whatever it likes. What RDC Promotions cannot do is use its land in such a fashion as to cause a nuisance to neighbouring occupiers, specifically the occupiers of Fenland. The occupiers of Fenland have no entitlement to seek to regulate the use by RDC Promotions of its land, but they do have a right to interfere if a nuisance is created by that use. Consequently there is no question of RDC Promotions needing, or obtaining, a prescriptive right to use the Stadium for some particular purpose. The issue is whether RDC Promotions can obtain by prescription a right to generate noise which would otherwise be a nuisance to the occupiers of Fenland.[214]The concept of a prescriptive right to create a noise which is a nuisance is a rather challenging one. The authors of Clerk & Lindsell on Torts, 20th edition, 2010, at paragraph 20-85 express the view that, “Whether a right to commit a nuisance by means of smoke, smells, noise or vibration can ever be acquired by prescription is doubtful”. The cause of the doubt is that, as Eve J explained in Hulley v. Silversprings Bleaching Co. [1922] 2 Ch 268 at page 281 in the context of an alleged prescriptive right to cause pollution of a stream:- “The progressive increase in the plant in the defendants’ mill and in the volume of water polluted is destructive of that certainty and uniformity essential for the measurement and determination of the user by which the extent of the prescriptive right is to be ascertained.”[215]In other words, it is an essential feature of any right to be acquired by prescription that the extent of the right can be measured and determined. In the case of noise that is unlikely to be possible, and certainly is not possible if the level of noise generated, as received at the alleged servient tenement, varies.[216]Mr. McCracken’s formulation of the alleged prescriptive right also seemed to have the unusual feature that it was contended that the right was not a general right, in the sense that it could be exercised at any time, but was limited to certain hours of the day (for noise from speedway racing) and a certain number of days in the year, exactly which were unspecified, as well as between particular hours, for noise from stock car and banger practising and racing.[217]As Lord Hope of Craighead pointed out in his speech in Hunter v. Canary Wharf Ltd. [1997] AC 655 at page 726F – H, only certain kinds of rights over the use of land by others are known to law:- “The presumption also affects the kinds of easement which the law will recognise. When the easements are negative in character – where they restrain the owners’ freedom in the occupation and use of his property – they belong to certain well known categories. As they represent an anomaly in the law because they restrict the owners’ freedom, the law takes care not to extend them beyond the categories which are well known to the law. It is one thing if what one is concerned with is a restriction which has been constituted by express grant or by agreement. Some elasticity in the recognised categories may be permitted in such a case, as the owner has agreed to restrict his own freedom. But it is another matter if what is being suggested is the acquisition of an easement by prescription. Where the easement is of a purely negative character, requiring no action to be taken by the other proprietor and effecting no change on the owner’s property which might reveal its existence, it is important to keep to the recognised categories. A very strong case would require to be made out if they were to be extended. I do not think that that has been demonstrated in the present case.”[218]Mr. McCracken drew to my attention a couple of rather ancient cases in which it appeared that, at first instance, the concept of a prescriptive right to create a noise had, if not been recognised, at least not been rejected out of hand.[219]The first was Elliotson v. Feetham (1835) 2 Bing NC 134. In that case the plaintiff complained of nuisance from smoke and noise generated by the defendant in certain workshops used for the making of iron. The defendant pleaded that he had been in occupation of his workshops for ten years before the plaintiff acquired his interest in the property he occupied, and had always in that period generated the smoke and noise of which complaint was made. Judgment was given for the plaintiff on the ground that the defence could not succeed without pleading and proving that the smoke and noise had been generated for twenty years.[220]The second case was Crump v. Lambert (1867) LR 3 Eq 409. In that case Lord Romilly MR expressed the view, at page 413:- “It is true that, by lapse of time, if the owner of the adjoining tenement, which, in case of light or water, is usually called the servient tenement, has not resisted for a period of twenty years, then the owner of the dominant tenement has acquired the right of discharging the gases or fluid, or sending smoke or noise from his tenement over the tenement of his neighbour; but until that time has elapsed, the owner of the adjoining or neighbouring tenement, whether he has or has not previously occupied it, - in other words, whether he comes to the nuisance or the nuisance comes to him, - retains the right to have the air that passes over his land pure and unpolluted, and the soil and produce of it uninjured by the passage of gases, by the deposit of deleterious substances, or by the flow of water.”[221]In Crump v. Lambert Lord Romilly MR in fact granted an injunction restraining the issuing of smoke and the making of noise.[222]Consequently, it does not seem that in any reported decision, certainly not any decision which was put before me, it has been held that there was a right, acquired by prescription, to generate noise which would otherwise be a nuisance to an adjoining occupier.[223]For the reasons which I have given I am satisfied, on principle, that the law does not recognise an easement of noise, or an easement only exercisable between certain times of the day or on a limited number of occasions in the year.[224]In the result the defence of prescription in the present case fails.[225]It would have failed in any event on the evidence. The only evidence adduced on behalf of the second and sixth defendants to prove in any detail that noise that would otherwise have been a nuisance to the occupiers of Fenland had been generated continuously for a period of twenty years was that of Mr. James Waters, including the spreadsheet which I have already mentioned, and that of Mr. Derek Smith, including the Smith Schedule.[226]In the light of the evidence of Mr. Smith in cross-examination which I have already mentioned, I find that no stock car or banger races took place at the Stadium in either 1991 or 1992. It follows that stock car and banger racing has never been carried on continuously for a period of twenty years, and in particular not continuously for the period of twenty years immediately preceding the commencement of this action by the issue of the claim form on 19 October 2009. On Mr. Smith’s evidence, which was not contradicted by any other, stock car racing commenced on 20 November 1983, continued at varying levels of annual intensity until 4 November 1990, and was then discontinued until the Messrs. Coventry took over running events at the Stadium on 1 January 1993. The proven periods of use prior to the issue of the claim form in this action were thus 20 November 1983 to 4 November 1990, just less than seven years, and from 1 January 1993 to 18 October 2009, 16 years, nine months and 18 days.[227]In the light of the evidence of Mr. Smith my attention in relation to speedway racing was concentrated on the years 1991 and 1992 to see whether there was evidence that in those years there was speedway racing at the Stadium. The evidence in the spreadsheet attached to Mr. James Waters’s second witness statement did not show any speedway races in 1990, 1991, 1993, 1994, 1997, 2000 or 2003. I have already noted that Mr. Waters explained that the material used to reconstruct the dates upon which speedway racing had taken place was incomplete. However, the issue arises whether the absence of evidence could be evidence of absence. It was for the second to sixth defendants to prove twenty years’ uninterrupted use of the Stadium for speedway racing. As the balance of the evidence is that there was no stock car or banger racing in the years 1991 and 1992, why should it be assumed that there was nonetheless speedway racing in 1991 in the absence of positive evidence to demonstrate that there was? In the result I am not satisfied that in fact there was speedway racing at the Stadium in 1991.[228]Anticipating that I might reach a conclusion along those lines, Mr. Kokelaar, who made closing submissions to me inter alia on the issues of prescription on behalf of the second to sixth defendants, drew to my attention a decision of the Court of Queen’s Bench, Carr v. Foster (1842) 3 QBR 581. That was a case about a profit a prendre which it was contended had been acquired under Prescription Act 1832 s.1 by use for 30 years, the applicable period in relation to a profit a prendre. The evidence was that the right in question, to pasture cattle on a common, had not been exercised in two years out of the period of thirty because the person claiming the right had no commonable cattle in those years. The trial judge was Lord Denman CJ. He overruled an objection that the acquisition of the profit could not be shown by reason of the non-use in two years, and the jury found for the plaintiff claiming the profit a prendre. Cause was shown, so the matter was reconsidered en banc. The leading judgment was that of Lord Denman CJ, who had not been persuaded to change his mind. He said, at pages 586 – 587:- “I am of opinion that the thirty years’ enjoyment was sufficiently made out. There must be some interval in the enjoyment of all such rights; and it must be a question for the jury, in each case, whether the right was, substantially, enjoyed for the requisite period. It has been ingeniously argued that a thirty years’ enjoyment cannot have taken place where there has been a two years’ intermission. But the words of sect. 1 are “without interruption”, not “without intermission”. And the intermission must be a matter open, in every case, to explanation. … where actual enjoyment is shewn before and after the period of intermission, it may be inferred from that evidence that the right continued during the whole time.”[229]Patteson J, at pages 587 – 588, said:- “I think there is no difficulty in the construction of the statute. “Interruption” in sect. 1 must clearly mean an obstruction by the act of some other person than the claimant, not a cessation by him of his own accord. … It is suggested that the argument for the plaintiff might apply equally if there were a cesser for seven years. I am not prepared to say that it would not. It might be that, under the circumstances, the party had no occasion to use the right. The question would always be for the jury. So long an intermission would be a strong piece of evidence against the continued right: but it would be for them to determine.”[230]The third member of the court was Williams J. He said, at page 588:- “I am of the same opinion. “Interruption” means an obstruction, not a cesser or intermission, or any thing denoting a mere breach in time. There must be an overt act, indicating that the right is disputed. Before the statute, in cases relating to common, it was very usual to explain the ceasing to turn on cattle by the fact that there were not, at the time, commonable cattle to turn on. No necessary inference arises from the cesser during two, three, or seven years. In this particular case enjoyment for the requisite period was abundantly made out.”[231]What, I think, is clear from this decision is that it is a question of fact what are the consequences, in relation to the acquisition of a right by prescription, of non-use of the alleged right for a period. Lord Denman CJ contemplated that it might be appropriate, if the alleged right was exercised both before and after a period of non-use, to infer that the right continued notwithstanding the period of non-use. Patteson J seemed to envisage that a period of non-use of sufficient length – he was considering a period of seven years – would be strong evidence against the right continuing. Williams J, on the other hand, appeared unfazed by a period of non-use as long as seven years.[232]On the facts in Carr v. Foster it was the plaintiff who exercised the right both before and after the period of non-use. If different persons had purported to exercise the right before the period of non-use and after it, it seems to me that there would not be the necessary foundation for the inference which Lord Denman CJ considered appropriate. Again, in the case of a profit a prendre the nature of the alleged right is that the beneficiary takes something from the land subject to the profit. It is thus clear, from time to time, whether the relevant thing is being taken or not, and, if it is, tolerably clear that it is being taken in exercise of the contended right. Matters are, perhaps, less straightforward in the case of an easement. In such a case, until the alleged right has been acquired by prescription, it amounts to a trespass or a nuisance, and can be stopped by legal action. The cesser of an activity which is, for the time being a trespass or a nuisance, but which, if continued for long enough, might mature into an easement, is entirely consistent with the tortfeasor deciding no longer to act unlawfully and to expose himself to legal action.[233]However, the issue is ultimately a question of fact, and it is for those contending that a period of non-use during an alleged period of prescription, was not as a consequence of an abandonment of any attempt to acquire the relevant right to prove that. Lord Denman CJ envisaged in his judgment that any period of non-use would require an explanation of some kind. Absent any explanation, it must follow, as it seems to me, that a period of non-use is consistent only with an abandonment of any attempt to obtain an easement by prescription.[234]In the present case no explanation for the non-use of the Stadium for speedway racing in 1991 was forthcoming. It was not clear, on the evidence, whether those organising the speedway racing at the Stadium in 1992, or in 1995, were the same as those organising it in the last year for which there was definite evidence of use, 1989. Non-use of the Stadium for a whole calendar year, as I find happened in 1991, was significant. As I have noted, speedway racing in years for which there is evidence occurred on at least 16, but as many as 35, days. It did seem to be seasonal, in the sense that it took place between about mid-March and about the end of October, but it was not as if it happened only at very limited times of year. In the result I am not persuaded that the non-use of the Stadium for speedway racing in 1991 did not amount to a cesser. So far as the evidence in the spreadsheet prepared by Mr. James Waters goes, the proven periods of use of the Stadium for speedway racing are 18 May 1975 to 17 September 1989 (14 years 4 months), 22 March 1992 to 25 October 1992 (7 months), 19 March 1995 to 27 October 1996 (1 year 7 months), April 1998 to 30 October 1999 (1 year 6 months), 22 April 2001 to 13 October 2002 (1 year 6 months), and 28 March 2004 to 4 October 2009 (5 years 6 months).

Remedies

[235]In the light of my findings that nuisance by noise has been committed by activities at the Stadium and at the Track from 2006, and that it continues, the issue arises of the appropriate remedies.

(a) Injunctions

[236]A remedy usually afforded in the case of a continuing nuisance is an injunction restraining those committing the nuisance from continuing to do so.[237]In the present case the evidence indicated that those in control of the activities at the Stadium were the Messrs. Coventry, of whom only Mr. David Coventry was a defendant. Thus only in respect of him can an injunction be made concerning activities at the Stadium. The body in control of the activities at the Track is Moto-Land. It is not appropriate to grant an injunction against any defendant other than these two because none of them has any control, as a matter of law, over the activities complained of.[238]For the purposes of reaching a conclusion whether Miss Lawrence and Mr. Shields had proved that they had suffered nuisance by noise from the activities at the Stadium and at the Track it was not necessary to reach any conclusion as to what level of noise heard at Fenland amounted to nuisance. However, for the purposes of granting an injunction as a practical matter it is necessary to specify some objective standard by reference to which a determination can be made, if necessary, of whether there has been a breach of the injunction or not.[239]The position is somewhat complicated by the fact that, no doubt in recognition that there is considerable support in the area for stock car racing, banger racing and speedway, as well as for motocross, Miss Lawrence and Mr. Shields are prepared, on the advice of Mr. Stigwood, to agree to this approach set out in his second report:- “4.59 Where the court accepts nuisance arises I invite it to consider a maximum number of 40 days of adverse impact per annum due to the combined use of motocross and motor sport use [sic] of the stadium with activities restricted to finish not later than 18:00 hours. This would apply to any activity plausibly causing noise levels to exceed 40dB LAeq during the daytime in any 15 minute period, as determined at the residential property Fenland under free field conditions. In other words any motor sport activity likely to exceed 40dB LAeq(15 minute) at Fenland should only occur on a maximum of 40 days a year. Where activity continues after 18:00 hours the maximum number of days should be reduced to 35. 4.60 Only 10 event days should be allowed to continue after 18:00 hours in any year and subject to a finish not later than 22:00 hours. An upper noise limit of 50dB LAeq(15 minute) should apply to those 10 days for the period after 18:00 hours at the residential property.”[240]That, I think, was in the nature of an offer, rather than a serious attempt to specify noise limits which, if not exceeded, would not amount to a nuisance. It was a suggestion which, without more refinement, was capable of causing problems itself. For example, I do not imagine that what was contemplated was 40 continuous days of use in any one year. Again, no attempt was made to distinguish between activities at the Stadium and activities at the Track. Moreover, no upper limit was suggested as one not to be exceeded on the 40 contemplated days on which noise could exceed 40 dB LAeq15minutes.[241]Recognising that Miss Lawrence and Mr. Shields wish, to an extent, to be accommodating in relation to noise from activities at the Stadium and at the Track, it seems to me that nonetheless an injunction should be clear in its terms as to exactly that which is not permitted. Wooliness as to what level of noise is permitted, and on what precise days, strikes me as a recipe for future problems, and one which can and should be avoided. Rather than seeking to build into an injunction exceptions in somewhat vague circumstances, it seems to me better either for the parties to agree between themselves, against the background of my findings and an indication of the injunctions which I am minded to grant, the terms in which any exceptions are to be permitted, or to preface an otherwise appropriate injunction with the words, “Save with the express prior written consent of the claimants,”. Such a formula would enable the parties, if they wish, to agree, on an ad hoc basis, specific activities to take place on identified dates between stated hours on terms acceptable to all sides.[242]It is appropriate, given the nature of the nuisance which I have found proved, that the point at which the noise level which I set should be measured should be the boundary of Fenland. Mr. Sharps pointed out, correctly, that a measurement made at that boundary might be affected by extraneous sources, such as aircraft, birds or gun shots. However, the recordings of Mr. Stigwood of which copies were put in evidence, together with annotations, seem to indicate that it is possible for an experienced interpreter of such measurements to identify sources of noise which should be omitted in any determination of whether there has been a breach of the injunctions. Typically, aircraft noise seems to be very noisy, but of limited duration – perhaps a minute or two at most. A gun shot is usually a single loud report.[243]As I have explained, the real source of nuisance which continues from the activities at the Stadium and at the Track is the generation of noises which exceed, by a large amount, the noise levels which prevail when there are no activities. The best way of eliminating the production of those loud noises seems to me to be to fix a level of noise as not to be exceeded which will, if complied with, avoid such noises. I have also had regard to the evidence of Mr. Stigwood as to the levels fixed for various motor racing circuits set out at paragraphs 10.10 to 10.17 inclusive in his first report. However, I am also persuaded that a lower level of noise should be permitted during the evening and night than should be permitted during the rest of the day. Without such a differentiation between different times of the day there is a risk that someone could comply with the letter of an injunction, but still cause nuisance.[244]In their closing submissions both Mr. Harrison and Mr. McCracken recognised that it would be appropriate for the parties to have an opportunity to reflect once my conclusions were known, and to seek to agree the terms of injunctions, if that was a remedy which I was inclined to give. I did indicate during closing submissions that I thought it appropriate, if I concluded that there was continuing nuisance, to grant injunctions. Mr. Harrison and Mr. McCracken did not seek to dissuade me from that course, if that was the conclusion which I reached.[245]Subject to the parties’ agreement on some other form of order, what I have in mind is to grant an injunction directed to each of Mr. David Coventry and Moto-Land restraining him or it, save with the express prior written consent of the claimants, from causing or permitting noise to be generated from activities at the Stadium or the Track, as the case may be, which generate a noise level, measured at the boundary of Fenland, which exceeds, between 08:00 and 20:00 hours, 45 dB LAeq15minutes or, between 20:01 and 7:59 hours, 37 dB LAeq15 minutes. A question which does arise, since Fenland is presently unoccupied and will remain unoccupied until the Bungalow is repaired, is as from what date any injunction should take effect.

(b) Damages

[246]It is next necessary to consider the award of damages in respect of past nuisance. Because of the nature of the claims of the claimants for damages it is necessary to consider three types of damages: what might be termed ordinary damages, that is to say, the damages which would be assessed in a case of noise nuisance without any unusual features; aggravated damages; and exemplary damages. It is convenient to consider these types of damages by dealing first with aggravated damages, then exemplary damages, and last ordinary damages.

(i) Aggravated damages

[247]The case of the claimants that they were, in the circumstances of this case, entitled to be awarded aggravated damages, was elaborated by Mr. Harrison in an addition to his written opening skeleton argument as follows:- “23. Additional damages may be awarded as compensation for the defendant’s objectionable behaviour. As analysed by the Law Commission in Law Com. No. 247:
“Aggravated, Exemplary and Restitutionary Damages” (1997), the purpose of aggravated damages is to compensate the victim of a wrong for the mental distress (or ‘injury to feelings’) they have suffered, in circumstances in which that injury has been caused or increased by the Defendants’ conduct during or after the commission of the tort (emphasis supplied [by Mr. Harrison]) – or, to use the Law Commission’s own words “where the manner in which the defendant has committed the tort, or his motives in so doing, or his conduct subsequent to the tort, has upset or outraged the plaintiff” (para. 1.1, page 10 … Such conduct or motive ‘aggravates’ the injury done to the plaintiff, and therefore warrants a greater or additional compensatory sum. It is not limited to considering “the manner in which the defendant has committed the tort”. 24. In this case the Claimants [sic] case is that nuisance was caused by the Defendants 2 – 6 and was continuing from 2006 to date. The conduct which causes the mental injury need not be committing the tort of creating a noise nuisance although it is accepted that it should be connected with it or in connection with it. 25. Thus if one of the defendants had abused or taunted Ray Shields simply because he did not like him that would not be a matter justifying the award of damages; if however the abuse or assault “the conduct” was at least partly motivated by a dislike of complaints about the nuisance that was occurring it would justify an award of aggravated damages. The focus is on conduct “aggravating” mental injury which would not be incurred as a result of the tort. An example where aggravated damages were awarded in a trespass [to land] case is Perlman v. Rayden [2004] EWHC (Ch) at [111] to [117] … - the defendant’s behaviour was intimidatory and unpleasant, and it was malicious in the sense that the defendant knew throughout that the claimants had a right to use the track which he was not entitled to bar, and in the sense that his object was to secure for himself a right of access over the claimants’ land to which he was not entitled. The fact that the defendants [sic] conduct may also have constituted the tort of harassment or assault did not prevent the grant of aggravated damages.”
[248]I am not sure that the reference to the decision of Patten J in Perlman v. Rayden was altogether apposite. The issues in that case seem to have been somewhat more complicated than was summarised in Mr. Harrison’s document.[249]At paragraph 111 Patten J identified the pleaded case against the defendants in relation to aggravated damages:- “The pleaded allegation in both actions is that Mr. and Mrs. Rayden blatantly abused the trust and confidence which existed between the parties prior to the building works by either misleading them as to what was proposed or seeking to ensure that the Perlmans did not become aware of what was planned.”[250]In succeeding paragraphs the learned judge considered the facts alleged to be material to the issue of whether aggravated damages should be awarded. He rejected a number of the contentions advanced on behalf of the claimants. What Patten J ultimately found justified an award of aggravated damages appears, from paragraph 117 of his judgment, not to have been any intimidatory or unpleasant behaviour, or argument about the use of a track, but the fact that Mr. Rayden continued to deny any wrongdoing when he knew perfectly well that the way an extension to his house had been constructed trespassed on the neighbouring land of the Perlmans:- “I have rejected the allegation that the Raydens sought from the start to mislead the Perlmans and that they always intended to carry out their works regardless of the Perlmans’ rights. That is not justified on the evidence and is inconsistent with what we know about the dealings between the parties. I do, however, accept that the Raydens did decide to press ahead with the extension regardless of the terms of the planning permission. What is in dispute is whether and to what extent they were also aware that their extension would impinge on the Claimant’s property and his rights of access in the way that it did. It is, I think, important to bear in mind that Mr. Perlman is not entitled to damages for a breach by the Raydens of planning control. His cause of action is one in nuisance or trespass. There is no clear evidence that the Raydens knew in advance how their builders intended to construct the extension, any more than they planned the delivery of the dormer window via the roadway. But these were the Raydens’ builders and they must, in my judgment, take responsibility for their actions. It also seems to me unlikely that Mr. Rayden was not told by Mr. Izod or the builders at least something about the attempts that were being made to deal with the level of the flank wall. Neither Mr. Nixon nor anyone from the builders has been called to explain why they acted in the way they did. What is, I think, particularly important and significant is that when the queries were raised about the construction of the flank wall, Mr. Rayden continued to deny any wrongdoing, even at a time when he must have known what the true position was and indeed was prepared to admit it to the planning authority. This is a case where I can, I think, properly make an award of aggravated damages, but in doing so I am entitled to take into account the fact that the extension has now been demolished, at considerable cost to the Raydens, and my declaration about the gap to be left ought to prevent problems of this kind occurring in the future….”[251]Patten J did not consider the issue whether it was appropriate to award aggravated damages in a case in which what was alleged to aggravate the commission of one tort was the commission of another tort, which was actionable separately. I think that the last sentence in the passage from Mr. Harrison’s document which I have quoted above was intended as in the nature of a response to a concern which I had expressed to Mr. Harrison before the production of the document.[252]Another document of Mr. Harrison produced after I had expressed a different concern, about the need to distinguish between the different defendants, was entitled “The Claimants Case Against Each Defendant in Respect of Aggravated and Exemplary Damages”. That included:- “Apart from D1, who are no longer exist [sic], the Claimants [sic] case is that generally each of the Defendants was party to seeking to intimidate and bully the Claimants once they began complaining and made it clear that they were going to follow their complaints through with legal action which could have the effect of significantly limiting the motor sport activities at the Stadium and motocross land. … All the 2nd to 6th Defendants are involved with the use of the stadium. All have asked Terry Waters to act on their behalf through drafting the response to the pre action protocol letter. Terry Waters was a FHDC councillor and James Waters is an FHDC councillor. Mr. Waters attended meetings with FHDC in relation to the issues of noise coming from the stadium. Mr. Bastick also told the Claimants directly that Mr. Terry Waters would do anything to protect his interests. Whilst different Defendants have different parts as set out below it is an inescapable inference from the events that they were all aware of the complaints and all either took part in or lent their support to the smear campaign and events of intimidation that took place. There is no evidence that anybody would have had any reason to intimidate or threaten the Claimants other than their complaints and legal action against the stadium. In particular the police records show no complaint about hare coursing [it being suggested by various of the defendants and some of the witnesses called on their behalf that the claimants had incurred the wrath of the traveller community by reporting to the police members of that community who had been hare coursing]. The events of the motor cycle rides coming in and riding around Fenland kicking the bins and so forth on the 13th of April 2007 where the threats were issued “unless you stop we will fucking kill you” can only really refer to the complaints in relation to the stadium. The fork lift truck attack is not a crime committed for any gain such as a burglary or stealing of farm machinery and would appear to have no reason other than as intimidation. The arson follows in the line of these incidents – an occupied property may be thought less likely to be an obstacle to the use [sic] These are of course very serious allegations but they are not made lightly but as a result of a cumulative weight of incidents. The Claimants [sic] case is that they are justified. If the claimants [sic] case is correct then it is not surprising that there is little direct evidence to link any individual to the complaints and that care would be taken to avoid any identification. That is why it will be necessary to examine the evidence as a whole and determine whether on the civil standard there was such a campaign of intimidation and smearing to which the defendants were party.”[253]The note went on to deal with each defendant individually, but only in terms of seeking to identify what was alleged to be co-ordinated, but not unlawful, activity between them in response to the complaints of Miss Lawrence and Mr. Shields.[254]The logic of the analysis set out in “The Claimants Case Against Each Defendant in Respect of Aggravated and Exemplary Damages” seemed to be that what was contended for was a conspiracy between the second to sixth defendants to harass or intimidate the claimants, but that was not how matters were pleaded in the Amended Particulars of Claim. Under the rubric “Aggravated Damages” in the Amended Particulars of Claim appeared this:- “14. Further since the spring of 2006 the Claimants have been subject to harassment, threats of violence, insulting and abusive behaviour. Their house and property have been deliberately damaged. Their house has been severely damaged by fire in an arson attack. These incidents have occurred either though [sic] direct harassment by the fourth and sixth defendants or by others associated with the defendants and the harassment, threats of violence, insulting and abusive behaviour has been directed and/or encouraged and/or acquiesced in by the Defendants or by one or more of them. There has been a flagrant and deliberate invasion of the Claimants’ rights by the Defendants and/or their servants and agents and their licensees, which have taken place on and off the Claimants [sic] land. This has continued even after these proceedings were commenced, and the Claimants have sustained significant mental distress as a result. Particulars of behaviour justifying the award of aggravated damages 15. The behaviour justifying an award of aggravated damages falls into three categories.15.1 Attacks on Fenland15.1.1 On 21st April 2010 at 3 am whilst the Claimants were asleep an agricultural forklift truck (which appeared similar to the one used in other activities carried out on behalf of the Defendants) drove through the wooden five-bar gate to Fenland and smashed the Second Claimants [sic] car into the garage and the first Claimants [sic] car into the heating oil tank, pushing the tank into the house.15.1.2 On 11th June 2010 Fenland was damaged and made uninhabitable by an arson attack where entry was gained through breaking a window and a fire started in the roof of the house. Behaviour designed to harass or intimidate the Claimants emanating from, consented to encouraged by or resulting from activities of the Defendants15.2 Behaviour designed to harass or intimidate the Claimants emanating from, consented to encouraged by or resulting from activities of the Defendants15.2.1 The fourth defendant has placed and used, or permitted the use, of noisy and intrusive irrigation pumps on the land rented by the fourth defendant immediately adjacent to Fenland. These are placed to be as close as possible to the claimants’ bedroom and have often been run overnight;15.2.2 The fourth defendant has placed, used, or permitted the use of irrigation sprays placed close to the claimants [sic] property so as to cause damage and throw water into open windows or doors. The use of the adjoining land in this way began shortly after the claimants made complaints about the activities of the defendants in 2006.15.2.3 The first claimant has been subject to intimidation in the form of offensive hand gestures, cutting the throat gestures, deliberately aggressive driving from persons who are either connected with the defendant or have sought to disguise their identity.15.2.4 The First Claimant has been publicly identified by the defendant’s [sic] as allegedly the only complainant as well as falsely representing her complaints, and they have done nothing to prevent the growth of evident resentment against her from their supporters or the creation of such a climate. Particulars of Harassment and Intimidation of the First Claimant15.2.4.1 – 10th April 2007 at 11.45 am, the driver of a Mini occupied by persons she believed (having seen them leaving the owner of the Third Defendants (“Mr. Bastick or Cliff Bastick”) property at Pear Tree Farm on many occasions) are connected with the motocross operator, making offensive hand gestures whilst driving behind her along Cooks Drove towards the Stadium;15.2.4.2 – 13th April 2007 at 6.45 pm two teenage males (who the First Claimant believes may be members of Mr. Bastick’s family), one wearing a helmet and the other a hood (ie, they were unidentifiable), drove through the front gate into the garden at Fenland on motocross off-road track bikes, revving engines, shouting and knocking over rubbish bins with the contents spilt all over the drive, then attempted to kick over the compost bins at the end of the garden and knocked over garden ornaments, calling the First Claimant ‘a stupid fucking bitch’ and shouting ‘unless you stop we will fucking kill you’. They drove off in the direction of the stadium15.2.4.3 – 6th August 2007 at 7pm – vehicles driving at First Claimant at speed with horns and lights flashing;15.2.4.4 – 10th August 2007 11.45am – vehicle belonging to Mr. Bastick (the same vehicle as in the 17th November 2007 incident (below), which was subsequently confirmed by the police to be owned by the Bastick family) pulled out of Pear Tree Farm (Mr. Bastick’s house) in front of the first claimants [sic] car and drove extremely slowly towards the track (100 metres away). As the driver turned into the Stadium car park he made an aggressive V sign out of the car window as the first claimant passed. The driver was wearing a baseball cap and glasses, and was Mr. Bastick’s father;15.2.4.5 – 23rd August 2007 at 2.05pm – blue Mini driven by persons connected to Mr. Bastick drove towards her as she was driving along Cooks Drove towards West Row flashed vehicle lights and made obscene hand gestures, shouting out of the open window in an aggressive manner;15.2.4.6 – 17th November 2007 12.35pm – Mr. Bastick’s father with a passenger driving extremely close and in an aggressive manner behind her along the narrow Cooks Drove, overtook on a corner at speed forcing her to swerve to the left and off the road into a grass field;15.2.4.7 – Saturday 13th March 2010 at 4.30 pm, when First Claimant was driving west towards the Stadium along Cooks Drove, a vehicle came up behind her at speed, flashing its lights and honking the horn, forcing her to pull over to let them pass and as they did so a male passenger (identity unknown) shouted out of the open window, ‘why don’t you just fuck off once and for all’;15.2.4.8 – Friday 26th March 2010, 7.30 pm (in the dark) she was driving along Cooks Drove past the Stadium towards Mildenhall and a vehicle came up very close behind her forcing her to speed up. It followed her into West Row, flashing its lights and swerving to try to overtake, first on the narrow Cooks Drove and then on the main road which winds through the village. She felt fearful and pulled up by the Village Shop where the road is well lit, the other vehicle drove past her slowly and she saw two males with the passenger making what looked like a throat cutting gesture. She tried to take down the number plate but the vehicle sped off towards Mildenhall.15.2.4.9 – Comments have been posted on motorsport web forums that effectively identify the first Claimant and Fenland and some of which encourage violent acts against the First Claimant or her property, such as ‘A woman has just bought a house nearby and has threatened to complain to the council unless the track buy her house for £100,000 more than she paid for it’; ‘She’s about 3 miles down the road’; ‘I would be gutted if they shut down Mildenhall … the woman in question needs pinning down and tea bagging followed by a good cream pie … perhaps this may enable her to think more rationally’; ‘Mildenhall is based in the middle of a field and is still in danger of being closed due to noise complaints from one person. It seems incredible that legislation allows one person to spoil the fun of thousands but that is the law’; ‘I was told that the person complaining was dealt with i.e. somebody went along with a forklift and picked up her cars and dropped them on her bungalow, is this true?’; ‘there is absolutely no threat to the stadium or any of its activities despite the best efforts of one (yes I said one) household nearby’; ‘this is just total pish, from what I can gather this old trout has moved next door to15.2.4.10 The inaccurate theme that ‘there is only one complainant’ (the First Claimant, rather than the Second Claimant) has also been publicly repeated numerous times by one or more of the Defendants. The deliberate effect of so frequently stating in public that there is only one complainant, usually described as a woman who recently moved into the area and who lives near the stadium, is to identify the first Claimant publicly (since she is the only person of that description) and to elicit disapproval from supporters of the track and stadium or worse.15.2.4.11 The Fourth Defendant has also deliberately sought to inflame public feeling against the Fourth Claimant, blaming her for the heavy-duty earth moving plant that had been speeding through the village for months on end and creating considerable upset in the village. The soil was being used as bunding for the abatement works at the motocross track. Direct or indirect threats to the Claimants from the Defendants15.3 Direct or indirect threats to the Claimants from the Defendants. Attacks on Fenland15.3.1 The Fourth Defendant has used the land adjacent to Fenland in order to construct a hay bale wall for a period in September 2007, construction was accompanied by offensive comments, threats and gestures from the Fourth Defendant coupled with a shouted invitation to the Second Claimant to come and fight the Fourth Defendant on the highway.15.3.2 At 6.05pm on 10th August 2009 before the start of a public meeting convened by the third [sic – from the description which follows it seems that the fourth was intended] defendant (the ward councillor) and Mr. Cliff Bastick to discuss the proposed extension to 7 day operating of the motocross track, the Fourth Defendant and the Sixth Defendant barred the Second Claimants [sic] entry to the meeting telling him ‘your sort is not wanted here’. When asked why the Second Claimant could not attend a public meeting where the outcome may have a significant impact on his property the Fourth Defendant said ‘you are banned, this is not a public meeting. It’s private’. When the Second Claimant refused to leave and demanded to be allowed to enter the meeting the Fourth Defendant told him ‘to carry on writing silly solicitors’ letters’ and that he ‘hoped [the Second Claimant] I [sic] had plenty of money’.15.3.3 Mr. Cliff Bastick, visited Fenland on at least 10 occasions between 2006 and 2007, sometimes accompanied by his teenage son, often just turning up unexpectedly at the door and always without invitation from the Claimants, with a view to discussing the purchase of their property. These visits were designed either to be intimidatory or to form the basis for a false allegation that the Claimants were refusing to sell their property to the [sic] Mr. Bastick or other defendants other than for an exorbitant price. Particulars15.3.3.1 In the summer of 2006 Cliff Bastick visited Fenland. He made oral offers to buy the property at an amount £30,000 below the price paid by the Claimants.15.3.3.2 On 21st and then 23rd May 2007 Mr. Bastick visited the property. During discussions he stated that the fourth defendant was very influential in the local community and would ‘do whatever it takes’ to protect his interests. The Second claimant replied that the claimants did not believe there was a genuine interest in buying the property and the visit was to intimidate the Claimants.15.3.3.3 Further visits produced no offer in writing and no agreement to have the property valued. Visits persisted despite the Claimants asking Mr. Bastick not to visit but to put any proposals in writing.” Particulars of behaviour justifying the award of aggravated damages Attacks on Fenland Particulars of Harassment and Intimidation of the First Claimant Direct or indirect threats to the Claimants from the Defendants(a) (A) one of the best stockcar tracks in Britain and(b) (B) an airbase and is complaining about the noise’; ‘kill the lady’; ‘I say we all put money into a pot ‘n’ have em killed … that would fix it’; ‘who says we go find this ladys house who complained and go burn it f down! then she will have to move’; ‘people like that need a f punch in the face arghhh what a bitch’; ‘Is this the old bat who lives down the little alley way thing? The one where Inspectors came and had a look around? Hahahah’.

Particulars

[255]It is necessary to consider the evidence as to whether any, and, if so, which, of these incidents, other than the attack by the forklift truck, the fire at the Bungalow and the construction of the straw bale wall, upon which I have already commented, in fact occurred. If and insofar as any incident occurred, it is necessary also to consider the circumstances revealed by the evidence. That is particularly so in relation to the allegation that the fire at the Bungalow was the result of arson by one of the second to sixth defendants, or by someone for whom one or more of them is responsible in law. However, it is convenient, first, to point out that, as the matters complained of were all said to be in aggravation of the nuisance alleged, and not, for example, the result of a separate tort of harassment, only those found to be liable for nuisance were potentially liable in respect of aggravated damages. As Mr. Terence Waters and Mr. Anthony Morley, as the freehold owners, with Mr. Waters’s wife, of the Track, and with no other legal interest in, or ability to control, the activities at the Track or at the Stadium in the period from January 2006 to the date of the trial, could not be found liable in nuisance, it follows that awards of aggravated damages for nuisance could not be made against them.[256]When one stands back from the allegations pleaded in the Amended Particulars of Claim as matters contended to go in aggravation of damages, it is plain that by far the most serious were the attack by the forklift truck and the Bungalow catching fire on 11 June 2010. Apart from those matters what was complained of could be divided into a number of categories. One was motoring incidents, occasions upon which, whilst Miss Lawrence had been driving, other drivers had made her operation of her vehicle more difficult by the manner of their own driving, and/or had made gestures of some sort whilst passing her. Another category was agricultural activities said to be intended to annoy, specifically the use of irrigation pumps and sprays. A third category concerned the contents of motorsport web fora. A fourth related to Mr. Clifford Bastick’s alleged expressed interest in buying Fenland, which it was contended was not genuine, but was intended either to intimidate or to generate information which could be deployed to the disadvantage of Miss Lawrence and Mr. Shields. There were three separate incidents which stood alone: the riding of bicycles round Fenland and the knocking over of bins and garden ornaments; the construction of the hay bale wall; and the barring of Mr. Shields from attending the meeting on 10 August 2009. There was also a general complaint, which I need not consider further as he was not liable in nuisance, against Mr. Terence Waters that he deliberately sought to inflame opinion against Miss Lawrence by attributing to her the heavy earth-moving lorries travelling through West Row. A further general complaint was of characterising Miss Lawrence as the only complainant and thereby generating ill-feeling towards her.[257]As I have already noted, Miss Lawrence kept diaries throughout the period from January 2006. On occasions she recorded in her diary conversations between herself, Mr. Shields and Mr. Bastick. I am satisfied that all of the matters of which she complained which were said to go in aggravation of damages, and of which Mr. Shields also spoke, were, from her perspective, true. However, some of the matters complained of, when viewed in the context of other evidence, did not actually have the character which she attributed to them. In the event I am not satisfied that any of the matters about which she complained as aggravating the nuisance could be attributed to any of those whom I have found to be responsible for the nuisance, principally Mr. David Coventry and Moto-Land, but also Mr. James Waters in respect of the brief period at the commencement of 2008 when he personally operated the Stadium.[258]The nature of the attack by the forklift truck on 21 April 2010 demonstrated that the motivation was malicious. This was not random vandalism by a drunken hooligan. Fenland was, on the evidence, remote and difficult to find. The attacker found it probably because he or she knew precisely where it was. The assailant furnished himself or herself with an agricultural forklift truck. That, and the hour of the attack, indicated that the invasion of Fenland was premeditated. The nature of the vehicle used in the assault suggested that it had not been driven far before the attack. That suggested that the attacker was a person based locally to Fenland. Although, it seemed from the evidence adduced by a number of local residents called on behalf of the second to sixth defendants that there were circulating rumours that Miss Lawrence and/or Mr. Shields had incurred the wrath of members of the traveller community by reporting some members of that community to the police for hare coursing, I am satisfied that those rumours were in fact ill-founded. Both Miss Lawrence and Mr. Shields denied making any such reports. Miss Lawrence had made reports to the police about some of the matters relied upon in support of the claims for aggravated damages. Copies of relevant police records were adduced in evidence. Those records did not contain any note of a complaint or report about hare coursing. While it could be that, if the rumours had been true, those who had suffered arrest or other action as a result of the report of hare coursing might have been motivated to launch a revenge raid, as it was not true, there could not have been any members of the traveller community who could have felt sufficiently aggrieved about Miss Lawrence or Mr. Shields to wish to cause damage to their property. Consequently, as a matter of common sense, by elimination the only possible cause for the attack appears to be to exact revenge upon Miss Lawrence and Mr. Shields for the difficulties which their complaints had caused to activities at the Stadium or at the Track, or both, or to influence them on the question whether to pursue the present action.[259]However, there was not a scrap of evidence as to the identity of the driver of the forklift truck on 21 April 2010, or on whose behalf, if not his or her own, he or she had been operating in attacking Fenland. I am afraid that it is simply not good enough to say that, because it is fairly clear that the attack was launched as a result of the complaints about the noise generated by activities at the Stadium and at the Track made by Miss Lawrence and Mr. Shields, or as a result of this action, ergo the second to sixth defendants, or those of them whom I have found to be liable in nuisance, are responsible in law for what happened.[260]Thus this serious aggravating feature of the case, viewed broadly, does not feature in the assessment of damages for want of proof of who committed it and who instigated it.[261]In the course of this action application was made on behalf of Miss Lawrence and Mr. Shields for disclosure of documents held by Suffolk County Council Fire and Rescue Service (“Suffolk Fire Brigade”) concerning the fire at the Bungalow on 11 June 2010. The documents disclosed included a fire investigation report (“the Fire Report”) dated 11 June 2010. The investigating officer was Group Manager Ali Moseley. The Fire Report included:- “Crews discovered [on arrival at the fire] that the property was secure except for a window at the rear which had been broken and was open. A wooden garden chair was found to be positioned below this window. This area was avoided by crews during firefighting operations to avoid disturbing any evidence. In addition crews found a loft ladder in place in the loft and the loft hatch on the floor in the hallway at the foot of the ladder. … The entire roof and loft of main section of house was completely destroyed by fire. Direct burning was almost exclusively found to have occurred in the loft space and involved mainly the roof structure as there was very little evidence found of combustible materials stored in the loft. … Very little other damage was caused by fire in the property except localised burning where fire damaged items and structural elements fell into the property beneath upon collapse of the ceiling. … The fire appears to have started in the loft space and involved the whole roof structure but was contained within that area of the property. The severity of burning in the area of the loft hatch may indicate the fire started in that area or that this was where the most ready supply of oxygen was promoting stronger combustion. It is impossible to determine conclusively whether there was more than one seat of fire in the loft area. … It is possible that flammable materials my [sic] have been used to accelerate fire growth in loft space although no evidence of ignitable liquids was identified during investigations. … The broken rear window, positioning of garden chair under the window, position of loft ladder and ignition in loft space without apparent credible localised source of ignition indicates that forced entry and deliberate ignition is a potential and likely cause of ignition. Most likely cause of the fire is deliberate ignition by persons unknown using unknown naked flame ignition. Electrical ignition in loft space cannot be completely ruled out.”[262]From the Fire Report, as it seems to me, a number of rather puzzling features of the fire emerge. Certainly, as the author of the Fire Report noted, the facts that a rear window at the Bungalow had been broken, a garden chair placed beneath it, the loft ladder put in place, the loft hatch left at ground level, and the fire having started in the loft, all point towards a deliberate origin. However, the lack of evidence of any accelerant being used is surprising. One might expect that someone wishing to set fire to a building would wish to equip himself or herself with the means to ensure that the fire would ignite easily and spread rapidly. That, however, was not a feature of the fire at the Bungalow. Rather, if the fire was started deliberately, it was started by someone who set fire to the wooden structure of the roof, for there was little evidence of combustible material in the loft other than that structure. That method of starting a fire, if that was indeed the means by which it was started, would suggest someone with knowledge of fires and how to start them. The obvious questions appear to be, why go into the loft space in the first place to start a fire, unless one knew how to do it by setting fire to the wooden roof structure, and why take steps to conceal the precise mechanism by which the fire was started. The latter question arises because, in the absence of an accelerant, use of which was unlikely to implicate anyone who made a successful escape from the scene, one has to suppose someone having a reason for using a means of ignition which was untraceable. While, no doubt, it is not impossible, it is difficult to imagine an arsonist unskilled in the setting of fires putting himself or herself in the position of sitting at the foot of a rafter with a lit match or a cigarette lighter simply because the person in question had not come equipped to start the fire more easily.[263]In the result I feel no better able than the author of the Fire Report to reach a conclusion as to what was the cause of the fire. As it might have been an electrical fault, I cannot conclude that the fire was definitely started deliberately. If it was started deliberately, I cannot be satisfied on the evidence who caused the fire. While the forklift truck attack was crudely unsubtle, for the reasons which I have explained, it would seem that someone with considerable knowledge or experience of starting fires was involved if the Bungalow was the victim of an arsonist on 11 June 2010.[264]The driving incidents of which Miss Lawrence complained need, I think, to be put in context. Chronologically they fell into two distinct groups, one in 2007 and one in March 2010. The fact of such grouping suggests that there was not in fact some campaign to intimidate Miss Lawrence when she was driving, but rather that drivers who felt an animosity towards her, when they happened to come upon her, may have taken advantage of an opportunity presented. Again, it is unhappily the case that motorists vary in the consideration which they show for other motorists. Some are exasperated by the slow speed at which others seem to drive along narrow roads, and thus wish to overtake at any opportunity, or to urge the driver in front to increase speed by hooting or flashing headlights. Other motorists find that some other drivers travel at excessive speed, and finding such drivers behind them is unsettling, especially if they seem to be very close.[265]Miss Lawrence complained of five specific incidents in 2007 and two in March 2010. I am satisfied that two of the incidents in 2007 involved Mr. Clifford Bastick’s father. I am also satisfied that on the occasion on 10 August 2007 Mr. Bastick’s father made a V sign at Miss Lawrence. What prompted him to do so is a matter of speculation. It could be that he felt that Miss Lawrence had been driving too close to him as he proceeded slowly the short distance from Pear Tree Farm to the Stadium car park. In any event, Mr. Bastick’s father is clearly a grown man, presumably with a mind of his own. There is no reason to suppose that he made a V sign at Miss Lawrence because his son asked him to. Even if Mr. Clifford Bastick had asked his father to make such a sign, Mr. Clifford Bastick was not a defendant.[266]While it is possible that unidentified motorists or their passengers on the other occasions about which Miss Lawrence complains were motivated to drive as they did, or to make gestures or utter unwelcoming words, by their dissatisfaction at the complaints of Miss Lawrence about noise from activities at the Stadium or at the Track, rather than, for example, out of annoyance at the manner of Miss Lawrence’s own driving, as they perceived it, on the occasions in question, it is quite impossible to find, on the material put before me, that anything of which Miss Lawrence complains in respect of the behaviour of other motorists or their passengers was the result of instructions or encouragement given by any of the defendants whom I have found to be liable for nuisance. There were not many incidents, the groups of incident were separated in time by over two years, and the experiences which Miss Lawrence endured unfortunately are such as anyone who drives in this country is likely to experience from time to time at the hands of childish and impatient other road-users.[267]Whilst the pleaded case of Miss Lawrence and Mr. Shields as to the occasions upon which attempts had been made to intimidate them under the guise of conducting ordinary agricultural activities was a bit indefinite as to when this had happened, and on how many occasions, their evidence revealed that they were in fact complaining about three specific periods. These were the use of sprays after their first complaints in about April 2006, the use of irrigation pumps on 10 and 11 August 2007, and the use of irrigation pumps on 20 and 21 May 2010. The duration of each incident and the timing of each relative to the others is not suggestive of any sort of campaign to cause as much ostensibly justifiable agricultural noise as possible. Mr. Shields suggested that irrigation pumps had been left running all night for weeks on end. That was not the evidence of Miss Lawrence, and, as I have said, she kept contemporaneous diaries. However Mr. Shields now remembers it, I am confident that irrigation pumps were only used on the specific occasions identified.[268]The evidence was that it was not Mr. Terence Waters, but his son, Mr. Jonathan Waters, who in fact carried on a farming business at the time of the complaints of Miss Lawrence and Mr. Shields. Mr. Jonathan Waters was called to give evidence about his use of sprays and irrigation pumps. Before coming to the evidence of Mr. Jonathan Waters it is convenient to consider the evidence of Mr. Shields and that of Miss Lawrence about agricultural activities.[269]In his first witness statement Mr. Shields spoke about the use of sprays and the use of irrigation pumps. Whilst he did mention the irrigation pumps in August 2007, Miss Lawrence’s evidence was more definite about that. About the use of sprays and irrigation pumps in 2010 Mr. Shields said:- “22. In addition to the harassment directed at Kate we have also had to endure the Waters family sub-letting land from tenant farmers and directing water jets from their irrigation pumps directly at the property causing significant damage to our lounge roof and water entering through open windows and doors. Irrigation pumps, used to pump ditch water to fields behind our property as well as further away, have been located right on the boundary of our property opposite our bedroom and left running all night for weeks on end presumably to cause maximum impact. These pumps could quite easily have been sited in other locations; there are dykes on both sides of Cooks Drove and Delph Drove where other farmers including the tenant farmer of the land (who sub-leases from Suffolk County Council) have managed to site irrigation pumps thus avoiding impact on our property, as well as ensuring that the pumps are switched off or set to switch off by no later than 11pm. The incidents of pumps being placed next to Fenland coincided with our first complaints in 2006 and were I believe a deliberate attempt to harass and/or intimidate us. … 29. On the night of 20th and 21st May 2010 the Waters family again placed an irrigation pump close to the boundary of our property. The pump operated all night and was eventually switched off at noon. We complained to the council who have confirmed that they had formally warned the Waters family not to operate their irrigation pumps between the hours of 11pm and 7am.”[270]At paragraph 57 of her first witness statement Miss Lawrence stated that:- “10 August 2007 4pm – irrigation pumps belonging to Waters family …were running all night at the boundary of our property 20 yards from our sleeping accommodation. The noise and vibration from the pumps could again be heard inside our property with doors and windows closed. The pump continued all night until 2pm on Saturday 11th August …”[271]It appears that the view of Mr. Shields and Miss Lawrence that somehow agricultural activities in fact undertaken by Mr. Jonathan Waters were carried on so as to cause harassment to them or to intimidate them was based on a lack of understanding of agricultural practices. Mr. Jonathan Waters explained what the situation in fact was, as I find accurately, in his witness statement dated 6 December 2010:- “9. The cropping plans for the fields near Fenland were in place long before the Claimants moved into Fenland, and crop rotations would make it very difficult for me to put potatoes on that land purely with the intention of placing pumps on the land. I also do not own the land near the property, but sub-let it from other farmers. The timing of the irrigation starting after they made their first complaint is purely coincidental, as irrigators would not have been needed until after the complaint was made. Irrigating is a seasonal requirement, usually staring in May and ending in August, and is dependent upon the weather.10. In the years since the Claimants moved into the property, field A at page 1 [a map, showing A to the north of Fenland, B to the south and C to the east] was cropped with potatoes in 2007, field B in 2006 and field C in 2010. This is in accordance with crop rotations agreed with other local farmers some time in advance. If the placing of pumps was deliberate, as suggested, there are plenty of other crops that could have been planted on those fields in other years that also required irrigation such as onions, leeks and carrots.11. When irrigating, I have to comply with the terms of my Environment Agency Water Abstraction Licence regarding allowed extraction points. In the three years that I have had irrigators on land near Fenland, the points that have been used for extraction have been chosen as being the furthest reasonable point away from Fenland, as can be seen on the map at page 1. Had the aim of irrigating been to annoy and intimidate the Claimants, the pumps could have been placed in the same drains but much closer to the property.12. Pumps have to be placed at extraction points approved by the Environment Agency. These guidelines were adhered to at all times. Even at the closest point to the property, I would have been unable to place the pump 20 yards away from the property as is alleged in paragraph 57 of the First Claimant’s witness statement. The field, marked A on the map at page 1, is separated from the property by a roadway, two grass verges and two drainage dykes. The closest point on that field to the boundary of the Claimant’s property (without even taking into account their own garden) is at least 50 yards away, and the actual pump was significantly further away, as can be seen on the Google Earth map at page 2. This picture was taken on 3 August 2007 and clearly shows the irrigation pump in the far corner of the field.13. I have always made an effort to minimise disruption to neighbours when running pumps. In 2007, while irrigating field A … adjacent to Fenland, I placed two irrigators in the field so that two runs could be completed simultaneously, thus reducing the amount of time needed to run the pump. Both irrigators were powered from the same pump, so there would have been no extra noise. This was followed by a short four hour run the following night for the third run. This had the effect of irrigating the field over two nights instead of three, although it involved additional work, and therefore expense, to set up two irrigators at the same location. I have therefore done everything within my power to reduce any impact on the Claimants.14. In paragraph 29 of the Second Claimant’s witness statement, he refers to a pump that “operated all night and was eventually switched off at noon”. Irrigation pumps always turn off automatically at the end of a run. The guns are set to move at a rate of 25 – 30 metres per hour, and once the gun has moved from one end of the field to the other it will switch off. Due to the length of that particular field (marked C on the map at page 1) a single run takes approximately 24 hours. Environment Agency guidelines do allow one 24 hour period of continuous irrigation per week, even during times of water shortage, to allow for runs of this type … The field only needed irrigating once a week at most, and the alternative would have been to irrigate using a 12 hour run on two consecutive nights. This would have been more disruptive to the Claimants had that been my intention. It would have also been advantageous to me as there is less evaporation of water when irrigators are run at night.15. The Second Claimant also states that irrigation pumps have been “left running all night for weeks on end, presumably to cause maximum impact”. It is Environment Agency advised practice to run the pumps at night to reduce evaporation of irrigation water. There are also limits to the amount of water that farmers are allowed to extract, so I would be unable to allow pumps to run continuously, or even for any longer than is necessary. That aside, I would also flood my fields and ruin my crops through overwatering.16. The First Claimant alleges in paragraph 29 of her witness statement that “We complained to the council who have confirmed that they formally warned the Waters family not to operate their irrigation pumps between the hours of 11pm and 7am.” I have never had a formal warning from the Council regarding the operation of irrigation pumps. They did informally approach my father in 2007 but acknowledged there was not a problem and we were operating within the guidelines.17. The Council would not be able to insist on operation only during the day, due to Environment Agency guidelines. At certain times of the year, in times of water shortages, irrigating during the daytime is prohibited. The Environment Agency usually impose restrictions on a voluntary basis during a water shortage. They start by restricting to one 24 hour period and then nights only for the rest of the week. If water levels don’t improve, then step two restrictions are implemented, which involve only irrigating on certain nights. Although these are supposedly voluntary restrictions, in practice they are very strictly adhered to. In addition to the voluntary restrictions imposed during water shortages, there are conditions attached to the Water Abstraction Licence which limit the amount you are allowed to abstract on a daily, weekly and annual basis. These are strictly enforced, and we have to take meter readings from each pump. … The dates on which these restrictions apply vary from year to year, and even when the restrictions are not in place, it is still considered best practise [sic] to irrigate at night. 17. I have never received any complaint as regards irrigation pumps or irrigators causing damage or a noise nuisance from Fenlands [sic], nor have I ever been approached by the Claimants for any reason. …18. No mention was ever made to me regarding the alleged damage to the property in 2006. As I am well insured, had my irrigators caused “significant damage” to the Claimants’ lounge roof, I would have expected them to make a claim against me, or at least have brought it to my attention. … 20. I would further comment that it is unlikely that an irrigation spray would be sufficiently forceful to remove tiles from a roof at the start of a run, unless it was actually placed within the Claimants’ garden, which it clearly was not. As well as the garden of the property, there was a belt of trees and a 6 bed headland (which would measure approx. 12 yards) between the irrigation gun and the property, which would amount to probably 20 yards in total.”[272]The complaints about the web fora seemed to me to be strange. If Miss Lawrence and Mr. Shields had not gone looking for them, they would not have found them. If they had been unaware of the existence of the fora, they could not personally have been affected by the contents of any messages posted on any of the fora. Consequently, it appeared that they only had themselves to blame in any event for going looking for the web fora which they found.[273]I am not satisfied on the evidence that any of those whom I have found to be liable in respect of nuisance had caused to be created any of the web fora about which complaint had been made, or had caused any particular observations upon any web forum to have been posted.[274]Only one web forum, on the evidence led before me, had any association with any of the defendants, and that was a Facebook campaign to save Mildenhall Stadium. A print-out of some pages from that site was adduced in evidence. It described itself in this way:- “This is an unofficial support page for RDC and Mildenhall Stadium which is under threat due to complaints about noise.”[275]An e-mail address provided on the site was wastedmc@btopenworld.com, which did not seem to be an address of Mr. Coventry. However, the address provided on the site for letters was that of the offices of RDC. That said, those contributing to the site seemed to use their own names, in contrast to the use of pseudonyms in web fora about which complaints were made on behalf of Miss Lawrence and Mr. Shields, and none of the contributions was identified as containing any threat towards, or abusive comment about, Miss Lawrence or Mr. Shields.[276]The reality is that speedway, stock car racing, banger racing and motocross are all sports which enjoy a degree of support from members of the public. The web fora from which postings were printed and put in evidence appear to be a manifestation of the current interest of many people in sharing thoughts by means of the internet. Most of those expressing thoughts in the web fora of which postings had been copied and put in evidence, other than the Facebook page, concealed their identities by use of pseudonyms. Many of the thoughts expressed seemed to have been formulated in extravagant, infantile terms. It is difficult to suppose that either Miss Lawrence or Mr. Shields can have been distressed by any of the relevant postings. If they had been they would have ceased to look at the postings.[277]The evidence of Mr. Clifford Bastick was that, before going to live at Pear Tree Farm, West Row, close to the Stadium, he resided in Bishop’s Stortford, Hertfordshire. When he moved to West Row he intended to redevelop Pear Tree Farm so as, amongst other things, to provide accommodation for his parents. Pending redevelopment it seemed to him that a possibility might be that he could purchase Fenland from Miss Lawrence and Mr. Shields and instal his parents there. I accept the evidence of Mr. Bastick on these points. I also accept that he decided to approach Miss Lawrence and Mr. Shields to discuss his thoughts. The first time he did so, he was accompanied by his son, Matthew, then aged about 16. I accept that the pair of them called at Fenland after a day working at the Track and having left the Track, prior to travelling to Bishop’s Stortford.[278]Although Mr. Bastick told me that he thought that he had visited Fenland only three times, I accept the evidence of Miss Lawrence that in fact it was on something like seven occasions. I find that Mr. Bastick was genuinely interested, but at a relatively low level of interest, in the possibility of purchasing Fenland. It was because of that relatively low level of interest that, despite visiting Fenland and talking to Miss Lawrence and Mr. Shields on a number of occasions over the course of about a year, Mr. Bastick never got as far as putting an offer in writing, as requested by Mr. Shields. However, that there was genuine interest was demonstrated, as it seemed to me, by the fact that Mr. Bastick instructed solicitors, Messrs. Pothecary Witham Weld, of Bishop’s Stortford, to write to Miss Lawrence a letter dated 27 April 2007 in the following terms:- “Re: Fenland, Cooks Drove, West Row, Bury St. Edmunds We act for Cliff Bastick and understand that you would like to receive a letter confirming his interest in purchasing your above property. This letter confirms such interest and we understand he will be in touch with you to discuss and negotiate a possible sale and purchase.”[279]Miss Lawrence and Mr. Shields seem to have been sufficiently interested in the possibility of selling Fenland to somebody to have instructed Mr. Robert Lewis, a partner in the firm of Balmforths, estate agents of Mildenhall, to advise as to the appropriate asking price for the property. He did so in a letter dated 10 July 2006. His letter included:- “Thank you for allowing us the opportunity of inspecting your property (as above) and as I discussed during my visit, I would value the property around £300,000. We would suggest initially marketing the property at £305,000 in order to allow some room for negotiation. We would also give a rental assessment of £1250 - £1,300 pm.”[280]Although in the event nothing came of the discussions as to Mr. Clifford Bastick purchasing Fenland, I am not satisfied that, as was contended on behalf of Miss Lawrence and Mr. Shields, the purpose of the discussions either at the outset or at any later time prior to the discussions ceasing, was to intimidate Miss Lawrence and Mr. Shields, or to obtain evidence to their prejudice by being able to represent them as greedy and only interested in selling Fenland at an exorbitant price.[281]I accept that Mr. Clifford Bastick paid a visit to Miss Lawrence and Mr. Shields on 23 May 2007, of which Miss Lawrence made a diary note and a recording. The substance of the meeting seems to have been that Mr. Bastick indicated that he did not have enough money to purchase Fenland, and could not persuade either Mr. Terence Waters or Mr. James Waters to participate with him in a purchase. There came a time in the meeting at which Miss Lawrence said that the discussions were getting nowhere and that she and Mr. Shields would, if necessary, keep complaining. She asked Mr. Bastick, “Do you want to buy this house or not”. The substance of what followed, as recorded in Miss Lawrence’s note of which a copy was put in evidence, and in which she referred to herself as “K”, to Mr. Shields as “R” and to Mr. Bastick as “B”, was:- “B – Yes but you need to know what you are getting into. No-one will take him [Mr. Terence Waters] on not even the council after last time. K – You are a known quantity and you need to start operating fairly. We cannot continue to live like this. B – I will talk to my solicitor but you need to be careful of Waters. He is dangerous and knows lots of bad people and will do whatever it takes to make it OK. R – What do you mean by that. B – I am just saying be careful. R – This is B/S you are trying to scare us off and he has told you to come round and scare us off. You have no intention of buying this house. You just want to keep lying and claiming blackmail. B – No I came here to sort things out.” B – No I came here to sort things out.”[282]Mr. Bastick was asked about that passage in cross-examination. His evidence was not very satisfactory. It seemed to be to the effect that he did not think that he had visited Fenland on the day in question, but that it was possible that he might have said something along the lines recorded on a different occasion.[283]Mr. Harrison sought to characterise the exchange which I have quoted as Mr. Bastick making threats. I think that that was unfair. I find that Mr. Bastick did say what he was recorded as saying on 23 May 2007, but that it was not intended as other than what it purported to be, an expression of Mr. Bastick’s view that tackling Mr. Terence Waters was not a task to be undertaken lightly. I think that it is significant that there were no adverse, immediate, dramatic consequences for Miss Lawrence or Mr. Shields following that discussion, such as one might have expected if, indeed, what Mr. Bastick said was intended as a threat.[284]I accept without reservation the evidence of Miss Lawrence as to the two motorcyclists who rode round the garden at Fenland, knocking over bins and garden ornaments on 13 April 2007. I also accept, since it was challenged, that one or other of the motorcyclists said to Miss Lawrence that, “Unless you stop we will fucking kill you”. It is unlikely that that threat was meant, or considered by Miss Lawrence, to be a serious threat to murder her. However, the incident was undoubtedly unpleasant. Unfortunately the identities of the riders of the motorcycles have not been discovered. There was no evidence that they had been put up to what they did by someone else, still less by whom. The nature of the incident suggests juvenile inspiration. Riding round somebody’s garden is annoying for the occupant. Kicking over bins and garden ornaments is silly, and an inconvenience to the person who has to refill the bins and pick up the ornaments. However, there is nothing remotely sophisticated in what was done. Consequently it is entirely possible that the perpetrators devised the nature of the attack themselves, without the benefit of adult involvement. If young people who used and valued the Track thought that its continuance was under threat, they might well have decided to take direct action designed to persuade the perceived source of the threat to reconsider. Absent evidence, there is no reason to suppose that any of those whom I have found to be liable in nuisance had any involvement in this incident.[285]I have already expressed my view of the construction of the straw bale wall. I should have been inclined to regard that as an aggravating feature to be reflected in an award of damages, had Mr. Terence Waters been found to be liable in nuisance, but that is not the case. I accept the evidence of Miss Lawrence and Mr. Shields that Mr. Terence Waters did offer to fight Mr. Shields on one occasion during the construction of the straw bale wall. However, that invitation cannot have been intended, or received, as serious. Mr. Terence Waters is, I think, now in his late sixties, whereas Mr. Shields appears to be in his early forties. Mr. Waters has now, and seems, from earlier photographs of him included in the evidence, certainly to have had in the period with which this judgment is concerned, a considerable bulk. Mr. Shields, on the other hand, appears, and as a fireman plainly is, fit. There was no prospect of Mr. Waters defeating Mr. Shields in a bare knuckle encounter.[286]I should also have been inclined to treat the exclusion of Mr. Shields from the meeting on 10 August 2009 as an aggravating feature to be reflected in an award of damages if I had found Mr. Terence Waters to be liable in damages for nuisance, and if the evidence that it was he who had excluded Mr. Shields from the meeting had been clearer. The evidence as to what happened was not in fact very clear. Mr. Shields and Mr. Brooks, who also sought to be admitted to the meeting, but was refused, gave different accounts of what had happened.[287]Mr. Shields, at paragraph 25 of his first witness statement, said:- “At 6.05pm on 10th August 2009 before the start of a public meeting convened by Terry Waters and Cliff Bastick to discuss the proposed extension to 7 day operating of the motocross track … Terry and James Waters barred my entry to the meeting telling me ‘your sort is not wanted here’. I asked why I could not attend a public meeting where the outcome may have an impact on my property and Terry Waters said ‘you are banned, this is not a public meeting. It’s private’. I refused to leave and demanded to be allowed to enter the meeting and Terry told me ‘to carry on writing my silly solicitors’ letters’ and that he ‘hoped I had plenty of money’.”[288]In his second witness statement, at paragraph 40 and the following paragraphs, Mr. Brooks gave his account:- “40. I did not demand to be admitted but was told immediately on arrival by Mr. [Terence] Waters, that I was barred. I was joined by the second claimant who was told by Mr. Waters “and so are you”. I asked Mr. Waters, who was at that time my local councillor, why I could not be admitted and he told me that it was a private meeting amongst selected West Row residents and he still refused admission although I pointed out that I was also a West Row resident.41. …42. At some point during the conversation outside the Village Hall Mr. Waters made a remark claiming that the first claimant had made an obscene gesture whilst driving past him and repeated one fitting the description. I ignored the remark as the nature of the gesture was one that could not be made or seen by someone driving a car. He made very negative comments about the first claimant at the same time asking if I wanted to be associated with such a person.43. Further exchanges took place between Mr. Waters and the 2nd claimant which I can confirm. I cannot recall the exact words but Mr. Waters told the claimant [sic] something like ‘keep sending your silly solicitor’s letters’ to which the 2nd claimant replied, wait for the court case. Mr. Waters responded with something like ‘I hope you have plenty of money’ after which the second claimant withdrew to avoid further confrontation.”[289]Mr. Shields did not, in his first witness statement, mention at all Mr. Brooks attempting to attend the meeting, notwithstanding that on Mr. Brooks’s evidence Mr. Brooks was outside the Village Hall when Mr. Shields arrived, and was already speaking to Mr. Terence Waters. Mr. Brooks did not mention Mr. James Waters as being involved in any discussion outside the Village Hall, and in particular did not suggest that Mr. James Waters had barred his, or Mr. Shields’s, entry to the building. Mr. Shields did not say anything about a complaint against Miss Lawrence by Mr. Terence Waters that she had made an obscene gesture towards Mr. Terence Waters. Both Mr. Shields and Mr. Brooks contended that it was he, rather than the other, who had asked Mr. Terence Waters why he could not be admitted to the meeting and had elicited the response that the meeting was private. Mr. Shields and Mr. Brooks did, however, agree that Mr. Terence Waters made observations to Mr. Shields about solicitors’ letters and about having plenty of money.[290]Other evidence, from witnesses called on behalf of the second to sixth defendants, indicated that it had in fact been Mrs. Doreen Norman who told Mr. Shields and Mr. Brooks not to enter. Mr. Clifford Bastick, who was present, told me in cross-examination that it was a lady, not Mr. Terence Waters, who refused entry. Mr. Bastick did not name Mrs. Norman. She was identified by Mr. Terence Waters. Mrs. Jeanette Gammon told me in cross-examination that she understood that it had been Mrs. Norman who had organised the meeting. Mr. Shields’s evidence, of course, was that the meeting had been arranged by Mr. Terence Waters and Mr. Clifford Bastick.[291]The truth of the matter seems to have been that when Mr. Shields and Mr. Brooks attempted to enter the meeting there were a number of people milling around outside the hall where the meeting was to take place, and probably both Mrs. Norman and Mr. Terence Waters indicated that Mr. Shields and Mr. Brooks should not enter. Understandably Mr. Shields and Mr. Brooks in their evidence concentrated on the role of Mr. Terence Waters.[292]The remaining issue of alleged aggravation was said to be the public identification of Miss Lawrence as the only complainant in relation to noise generated by activities at the Stadium and at the Track.[293]The evidence on this point was not very satisfactory. Miss Lawrence and Mr. Shields themselves knew perfectly well that she was not the only complainant. The District Council also knew that. So did Mr. Brooks. It appeared from the material put before me that it was principally Mr. Terence Waters who sought to portray Miss Lawrence as the only complainant, but with what degree of success is unclear. In her first witness statement Miss Lawrence said:- “89. I have over the last month telephoned 18 residents who had in the past confirmed that they would be prepared to provide witness statements in relation to the noise nuisance from the Stadium and the Track – the majority showing me evidence of a history of written complaints to the council for many years. 90. 14 residents have reluctantly withdrawn their support because of the recent attacks on our property and their fear of reprisals once their identities have been revealed. Those four residents who had already provided letters of support have now instructed that these are not to be disclosed, since again they are fearful of reprisals. I can say, without revealing their identities, that each letter attested to a high degree of continuing disturbance from noise from the motorsport activities, and that the writers had either complained formally to the council about this or objected to planning applications made to the council by the motorsport operators (or both).”[294]It would seem, therefore, that the eighteen residents mentioned also knew that Miss Lawrence was not the only complainant.[295]Those who signed the petition dated 24 July 2009 addressed to the District Council appear to have known that Miss Lawrence was not the only complainant.[296]There was no evidence that any individual in the area of West Row actually believed that Miss Lawrence was the only complainant. Assertions to that effect, other than from Mr. Terence Waters in discussions with officers of the District Council, seem to have been made only by pseudonymous contributors to web fora.[297]No evidence was put before me which suggested that anyone had felt less of Miss Lawrence because she was believed to be the only complainant about noise from the activities at the Stadium or the Track. The only evidence of any possible grounds for animosity which was adduced was the statements of Justina Pearcy and Steven Thompson. As one would expect of civilised individuals, as these two plainly were, they did not actually express any animosity towards Miss Lawrence.[298]Justina Pearcy told me of an incident involving Miss Lawrence when Justina Pearcy had been driving a tractor, towing a loaded trailer, and Miss Lawrence had been driving her car. They met head on in Cooks Drove, not in the sense of colliding, but in the sense that the vehicle driven by each approached the vehicle driven by the other. Justina Pearcy thought that Miss Lawrence should have pulled in to a passing place to allow her to pass. In fact, according to her, Miss Lawrence continued on her way and the two vehicles had to pass, with the tractor pulling partly onto a verge. Miss Lawrence was alleged to have sworn, shouted and waved her fists. Miss Lawrence told me that she did not recall the incident. It does seem to have been an incident of a trivial nature, on any view. In the result the evidence about it seemed to me to make no contribution to the resolution of the issues in this action.[299]The evidence of Mr. Thompson seemed to be equally insignificant. He told me that he had heard that Miss Lawrence and Mr. Shields had complained about the noise generated by a shooting party on one occasion. He also said that Miss Lawrence and Mr. Shields had been in the habit, which they denied, of walking their dogs on private fields. (ii). Exemplary damages[300]It is appropriate next to turn to the claims for exemplary damages.[301]Before me it was common ground that the effect of the decision of the House of Lords in Rookes v. Barnard [1964] AC 1129 was that exemplary damages can only be awarded in three situations: in the case of oppressive, arbitrary or unconstitutional action by servants of the government; in any case authorised by statute; and in the category explained by Lord Devlin in his speech at pages 1226 – 1227 of the report:- “Cases in the second category are those in which the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff…. Where a defendant with cynical disregard for a plaintiff’s rights has calculated that the money to be made out of his wrongdoing will probably exceed the damages at risk, it is necessary for the law to show that it cannot be broken with impunity. This category is not confined to moneymaking in the strict sense. It extends to cases in which the defendant is seeking to gain at the expense of the plaintiff some object – perhaps some property which he covets – which either he could not obtain at all or not obtain except at a price greater than he wants to put down. Exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer that tort does not pay.”[302]The focus of the enquiry in a case said to fall within what Lord Devlin described as “the second category” was considered in the later House of Lords case Cassell & Co. Ltd. v. Broome [1972] AC 1027. There was unanimity as to what needed to be demonstrated to justify an award of exemplary damages in a case of this type. Lord Hailsham of St. Marylebone LC put it in this way in his speech at page 1079B – D:- “It is true, of course, as was well pointed out by Widgery J in Manson v. Associated Newspapers Ltd. [1965] 1 WLR 1038, 1045, that the mere fact that a tort and particularly a libel, is committed in the course of a business carried on for profit is not sufficient to bring a case within the second category. Nearly all newspapers, and most books, are published for profit. What is necessary in addition is(i) knowledge that what is proposed to be done is against the law or a reckless disregard whether what is proposed to be done is illegal or legal, and(ii) a decision to carry on doing it because the prospects of material advantage outweigh the prospects of material loss. It is not necessary that the defendant calculates that the plaintiff’s damages if he sues to judgment will be smaller than the defendant’s profit. This is simply one example of the principle. The defendant may calculate that the plaintiff will not sue at all because he has not the money (I suppose the plaintiff in a contested libel action like the present must be prepared nowadays to put at least £30,000 at some risk), or because he may be physically or otherwise intimidated. What is necessary is that the tortious act must be done with guilty knowledge for the motive that the chances of economic advantage outweigh the chances of economic, or perhaps physical, penalty.”[303]In his speech at page 1094C – D Lord Morris of Borth-y-Gest expressed himself thus:- “I do not think that the word “calculated” was used to denote some precise balancing process. The situation contemplated is where someone faces up to the possibility of having to pay damages for doing something which may be held to have been wrong but where nevertheless he deliberately carries out his plan because he thinks that it will work out satisfactorily for him. He is prepared to hurt somebody because he thinks that he may well gain by so doing even allowing for the risk that he may be made to pay damages.”[304]Lord Diplock, in his speech at page 1130D – F, said:- “To bring a case within this category it must be proved that the defendant, at the time that he committed the tortious act, knew that it was unlawful or suspecting it be unlawful deliberately refrained from taking obvious steps which, if taken, would have turned suspicion into certainty. While, of course, it is not necessary to prove that the defendant made an arithmetical calculation of the pecuniary profit he would make from the tortious act and of the compensatory damages and costs to which he would render himself liable, with appropriate discount for the chances that he might get away with it without being sued or might settle the action for some lower figure, it must be a reasonable inference from the evidence that he did direct his mind to the material advantages to be gained by committing the tort and came to the conclusion that they were worth the risk of having to compensate the plaintiff if he should bring an action.”[305]What has to be shown, to justify an award of damages in this category of case, is thus, first, that the defendant recognised that he was committing a tort, or was reckless as to whether or not he was, and, second, that he deliberately decided to pursue the course of action which amounted to the tort because he thought that he was likely to be better off in terms of his assets if he did proceed than if he did not. In the present case the two elements come down to(i) did the relevant defendant appreciate that he was committing a nuisance, or was reckless as to whether he was committing a nuisance or not, and(ii) did he think that he would be better off in financial terms as a result of committing the nuisance, if nuisance it was, than if he did not.[306]The case of Miss Lawrence and Mr. Shields pleaded in the Amended Particulars of Claim in relation to exemplary damages was set out in the first paragraph numbered 16:- “The harassment, threats, violent and abusive behaviour and damage to the Claimants [sic] property have been carried out, directed, encouraged, permitted or acquiesced in with the motive of allowing the motocross, stock car racing and other activities at the track and stadium to continue in an unrestricted and therefore most profitable form. The Defendants have acted with the motive of maximizing the profits to be made from their use of the track and stadium regardless of the affect [sic] of the activities on the Claimants. Particulars(a) There has been an intensive level of consecutive motorsport activities from approximately April to October each year, including 51 out of 52 weekends, as well as Easter Day, Boxing Day, New Years [sic] Day, and all the bank holidays;(b) There have been persistent breaches of planning conditions;(c) The abatement notice issued by the local authority and upheld by the Magistrates Court was not complied with.(d) Cooks Drove and the surrounding droves (farm tracks) have been used by riders as an extension to the motocross track;(e) There has been no moderation of their activities by the Defendants designed to avoid causing nuisance.(f) The matters pleaded above as justifying the grant of aggravated damages have occurred as part of a deliberate campaign by the Defendants or one or more of them to intimidate or harass the Claimants so as to prevent any restriction on the most profitable use of the Stadium and the Track.”

Particulars

[307]In my judgment there is a discontinuity between the matters pleaded as justifying an award of exemplary damages and what, on the authorities to which I have referred, needs to be proved. It was not alleged of any defendant that he or it knew that the noise generated by the activities which he or it caused, or, having the power in law to prevent, permitted, amounted to a nuisance or that he or it was reckless as to whether it amounted to a nuisance or not. Again, it was not alleged of any defendant, that he or it deliberately decided to proceed to commit or permit what was in fact a nuisance having determined that to do so would be more advantageous to him or it than not causing or permitting the nuisance.[308]In cross-examination Mr. Harrison put to each of Mr. Coventry, Mr. Clifford Bastick and Mr. James Waters that he knew that there had been complaints of noise, from, inter alios, Miss Lawrence and Mr. Shields. What Mr. Harrison did not put to any witness was that that witness was aware that noise generated from the activities with which he was associated wasa nuisance to Miss Lawrence and/or to Mr. Shields or that he did not care whether or not it was a nuisance. Again it was not suggested to any of Mr. Coventry, Mr. Clifford Bastick or Mr. James Waters that he had decided that his business, or, in the case of Mr. Clifford Bastick, Moto-Land, would be in a better financial position if nuisance was continued to be caused to Miss Lawrence and/or to Mr. Shields than if nuisance were not continued. It could be said that it was obvious that, if eliminating nuisance involved the undertaking of works, not undertaking those works saved money and to that extent put the party who might otherwise have expended funds on attenuation works in a better financial position than if the works had been carried out. However, it was not suggested that, after the carrying out of the attenuation works in 2008 – 2009 pursuant to the abatement notices there remained any works which could have been carried out effectively further to reduce noise, still less how much such works would have cost. Mr. Clifford Bastick volunteered that the attenuation works undertaken in 2008 he had in fact performed himself, together with his son, Matthew. However, for the purposes of an award of exemplary damages, what needs to be proved, in my judgment, is not that there was an obvious financial benefit in not taking steps to try to prevent the commission of a tort, but that the individual in question consciously recognised that, and deliberately decided to seek to obtain that benefit by not incurring the relevant expense. As I have said, that was not even put to Mr. Coventry, Mr. Clifford Bastick or Mr. James Waters.[309]In the result the claimants have failed to prove any entitlement to exemplary damages. (iii). Ordinary damages[310]In Hunter v. Canary Wharf Ltd. [1997] AC 655 Lord Hoffmann explained, at page 706B – C that:- “In the case of nuisances “productive of sensible personal discomfort”, the action is not for causing discomfort to the person but, as in the case of the first category, for causing injury to the land. True it is that the land has not suffered “sensible” injury, but its utility has been diminished by the existence of the nuisance. It is for an unlawful threat to the utility of his land that the possessor or occupier is entitled to an injunction and it is for the diminution in such utility that he is entitled to compensation.”[311]Later in his speech, at page 706H – 707A, he went on:- “It follows that damages for nuisance recoverable by the possessor or occupier may be affected by the size, commodiousness and value of his property but cannot be increased merely because more people are in occupation and therefore suffer greater collective discomfort. If more than one person has an interest in the property, the damages will have to be divided among them. If there are joint owners, they will be jointly entitled to the damages. If there is a reversioner and the nuisance has caused damages of a permanent character which affects the reversion, he will be entitled to damages according to his interest. But the damages cannot be increased by the fact that the interests in the land are divided; still less according to the number of persons residing on the premises.”[312]Lord Hope of Craighead expressed similar thoughts about the basis of compensation for nuisance in the form of interference with the quiet enjoyment of land in his speech at page 724F – 725A:- “The effect on that interest in land will also provide the measure of his damages, if reimbursement for the effects of the nuisance is what is being claimed, irrespective of whether the nuisance was by encroachment, direct physical injury or interference with the quiet enjoyment of the land. The cost of repairs or other remedial works is of course recoverable, if the plaintiff has been required to incur that expenditure. Diminution in the value of the plaintiffs’ interest, whether as owner or occupier, because the capital or letting value of the land has been affected is another relevant head of damages. When the nuisance has resulted only in loss of amenity, the measure of damages must in principle be the same. I do not see how an assessment of the damages appropriate for claims for personal injury at the instance of all those who happened to be on the land can be the right measure. If this were so, the amount recoverable would depend on the number of those affected, not the effect on the amenity of the land. At best it is no more than a guide to the true measure of liability, which is the extent to which the nuisance has impeded the comfortable enjoyment of the plaintiff’s property.”[313]In Dobson v. Thames Water Utilities Ltd. [2009] 3 All ER 319 the Court of Appeal had to consider the basis upon which damages for nuisance should be assessed where, “there is(1) no loss of market value or other pecuniary loss,(2) no physical damage to the property and(3) no loss of income from its use/letting, but is simply(4) loss of amenity.” The answer was set out in paragraph 33 of the judgment of the Court, delivered by Waller LJ, at page 333D – G:- “If the house in question was available to be let during the period of the nuisance, it may be that there would be direct market evidence of loss of rental value. Otherwise, it is perhaps inevitable that the assessment of damages for loss of amenity will involve a considerable degree of imprecision. But if estate agents are to assist in placing a value on the relevant intangibles, whether by calculating the reduction in letting value of the property for the period of the nuisance or in some other way, we would expect them in practice to take into account, for the purposes of their assessment, the actual experience of the persons in occupation of the property during the relevant period. As Lord Hoffmann observed, the measure of damages for loss of amenity will be affected by the size and commodiousness of the property. If the nature of the property is that of a family home and the property is occupied in practice by a family of the size for which it is suited, the experience of the members of that family is likely to be the best evidence available of how amenity has been affected in practical terms, upon which the financial assessment of diminution of amenity value must depend.”[314]It was common ground in the present case that the basis upon which ordinary damages fell to be assessed was the difference between the rental value of Fenland if not subject to the nuisance which I have found proved, and its rental value subject to that nuisance.[315]As I have already noted, expert valuers were instructed on behalf of Miss Lawrence and Mr. Shields, and on behalf of the fourth, fifth and sixth defendants, respectively. Mr. Bird and Mr. Beaney agreed that, if not subject to nuisance, Fenland could have been let at a rent of £900 - £950 per calendar month in the years 2006 to 2009, inclusive, and at a rent of £1,000 - £1,100 per calendar month in 2010. Subject to the nuisance the equivalent monthly rental figures were £500 - £550 for the years 2006 to 2009, inclusive, and £600 per calendar month in 2010. Thus the monthly loss in the period 2006 to 2009 inclusive was £400, rising to £600 in 2010.[316]The only difference between Mr. Bird and Mr. Beaney in relation to these figures was that Mr. Bird considered that there should be a deduction in the calculation of the loss to take account of the fact that it was likely, in his view, that there would be significant void periods when Fenland was not in fact let, if Miss Lawrence and Mr. Shields had tried to let it, whilst the noise from the Stadium and the Track continued to be a nuisance.[317]It seemed to me that, in expressing the view he did, Mr. Bird had failed to recognise that the basis of assessment of loss is notional, rather than actual. Miss Lawrence and Mr. Shields, on the evidence, made no effort to try to let Fenland at any time in the period from the commencement of their occupation until they left, following the forklift truck incident, on 21 May 2010. The possibility of void periods, had they tried to let, is thus irrelevant.[318]Miss Lawrence and Mr. Shields moved into the Bungalow on 26 January 2006. The evidence of Miss Lawrence at paragraph 7 of her first witness statement shows that the first occasion upon which she considered that the noise from the Stadium had been excessive was 1 April 2006. In the circumstances it seems appropriate to commence the period over which damages fell to be assessed on 1 April 2006.[319]Over the period from 1 April 2006 until 21 May 2010 Fenland was subject to noise nuisance which affected the occupiers, Miss Lawrence and Mr. Shields. Once they had removed from the Bungalow the nuisance ceased to affect any occupiers of Fenland, because there were none.[320]Arithmetically the damages to which Miss Lawrence and Mr. Shields are entitled, jointly, amount to 45 calendar months (1 April 2006 to 31 December 2009) at £400 per month, being 18,000, plus, say, 4¾ calendar months at £600 per month, being £2,850.[321]That total sum of £20,850 fell to be paid, on my findings, as to part by the second defendant, as to part by the third defendant, and as to part by the sixth defendant. RDC Promotions operated stock car and banger racing at the Stadium throughout the period between 1 April 2006 and 21 May 2010. From the date of their purchase of the freehold interest in the Stadium they also permitted the speedway racing. Moto-Land operated the Track throughout that period. Mr. James Waters’s liability is in respect of the period in which he was the freehold owner of the Stadium, but it was not let to Mr. Harris, so between 28 January 2008, the date of the surrender by Mr. Harris of his lease, and 4 April 2008, the date of the sale of the freehold to RDC Promotions. In that period he at least permitted, and may have organised, stock car, banger and speedway racing. On the evidence in the second witness statement of Mr. James Waters, which was not challenged on this point, there were two speedway races at the Stadium in that period, on 8 March and 21 March. The Smith Schedule shows two stock car or banger races in the period, again on 8 and 21 March. Consequently, it seems appropriate to attribute an element of liability to Mr. James Waters in respect of only one month, March 2008.[322]It is not possible, on the evidence led before me, to differentiate in any meaningful way between the noise nuisance generated from activities at the Stadium and noise nuisance generated from activities at the Track. Subject to the need to consider the month of March 2008 separately, it seems to me that the damages to which Miss Lawrence and Mr. Shields are entitled should be contributed to equally by Mr. David Coventry and Moto-Land. For the month of March 2008 it seems to me that the £400 due in respect of damages should be split, first, as between the activities at the Stadium and the activities at the Track, in the way which I have explained, half each, but that of the half relating to the Stadium, half should be borne by Mr. James Waters. On this basis, his liability is £100.[323]In the result there will be judgment for Miss Lawrence and Mr. Shields jointly against Mr. David Coventry in the sum of £10,325 (half of £20,450, plus £100, Mr. Coventry’s share for March 2008). There will be judgment for Miss Lawrence and Mr. Shields jointly against Moto-Land in the sum of £10,425, half of £20,850, and judgment against Mr. James Waters in the sum of £100.

Conclusion

[324]For the reasons which I have explained, I am minded to grant injunctions against Mr. David Coventry and against Moto-Land, but I will hear Counsel further before deciding upon the precise form of the injunctions.[325]There will be judgment in favour of Miss Lawrence and Mr. Shields jointly:-(i) against Mr. David Coventry in the sum of £10,325;(ii) against Moto-Land in the sum of £10,425;(iii) against Mr. James Waters in the sum of £100.

Cited in 3 later judgments