NIMBY gets a thumping in court!!

[Greem]

I read somewhere a couple of days ago that Mallory may be next in line for the NIMBYs. Complaints have allegedly been made regarding the Wednesday test sessions.

[Woolley]

I don't think the problem there is the cars, I think it's Fat Clerk's singing during the downtime!

[ensign14]

You can get the full judgment here. It's not that difficult to read. One fun quote is:

Ms. Lawrence and Mr. Shields assert that they bought Fenland unaware of the various forms of motor sports which took place on the Stadium and the Track. If this assertion is correct, it is most surprising.

...code for "I don't really believe them".

Note that even at first instance Seymour J (not the most impressive of judges - he got a right kicking from the Court of Appeal in a computer case for inventing his own legal theory) allowed racing, but only on limited dates. However the key finding of fact would have been whether the purchasers were on notice of the noise, in which case bringing a claim would have been inequitable (i.e. they would have got a discount for the noise and then tried to get rid of it). For some bizarre reason Seymour never bothered addressing it...

The key paragraph is 65. This sets out the basic law. You can't just create a nuisance just because nobody's around to complain. Your duty is basically to buy the affected land so that you don't cause a nuisance to anyone else. If you don't do that you would be at the mercy of fate. There is a good reason - creating a nuisance on someone else's empty land basically makes that land unsaleable. So even after 20 years the "victim" can make a complaint.

But there have to be nuisances. We need sewage farms, we need airports, we need racing circuits. So there's a tradeoff, expressed eloquently in the 19th century (when planning laws didn't exist, so you got away with what you can) that "what is a nuisance in Belgravia is not necessarily a nuisance in Bermondsey". Industrial areas will have noise. Country areas will have the smell of cow wotsit. And a council giving planning permission for a racing circuit may change the area from rural to commercial. In Croft it was held that the area was still effectively rural, so that trackdays (as opposed to weekend racing, a recreation rather than a business) would not be permitted.

And in this case the Court of Appeal held that putting a speedway stadium somewhere - a stadium that was used a lot more than Croft - DID change the locality, and the Council HAD changed the use of the land. So anyone living there was living in a "racing" environment. Therefore has to put up with the noise of racing.

There's also a strong hint at the end that Shields/Lawrence might want to sue their former solicitors (I seriously doubt their conveyancers acted in this case - blatant conflict). And, posting as someone who specializes in professional negligence (well, spotting it others, rather than randomly negligencing all over the shop, at least I hope not), I can tell you there are plenty of sharks willing to rip apart the competition as soon as there's a scent of blood...

[Paul D]

Great to see some common sense in a court ruling for a change. No way did these muppets have a case by the sound of things, so they deserved to lose!

I've just been working on an historic F3 Chevron, and although only a one litre engine, the noise it makes in the confines of my workshop is amazingly loud on its open pipes! Compared to my own racecar, which is pretty close to the limit on a noise test, it's ear-itchingly loud. And to think, back in those days (late sixties/early seventies), this probably wasn't particularly loud by the standards of the day. And yet, it seems that we didn't have all the NIMBYs that we have today. I wonder why that is...

Let's face it - most motorsport venues probably emit far less noise than they did 40 years ago, and yet we seem to have for more people complaining about them!

Could it be - and stay with me on this, as I know it's a bit 'out there' - that we have too many solicitors/lawyers these days who positively encourage anyone and everyone to pursue bonkers claims even when there's little chance of victory? Do you think it's possible? I know it's difficult to accept that a lawyer might advise one to pursue a claim (from which he's going to make a sh*tload of money, win or lose) when there's little chance of success. I mean... surely that's unethical? But what other explanation can there be?

Of course, it could also be simply that we've become a nation of whinging NIMBY moaners who are so arrogant and self-centred that we think we should be allowed to impose our individual desires and opinions upon anyone who we feel has had the audacity to impose upon our perfect, oh-so-important little lives!

In fact, come to think of it - if we combine the two paragraphs above, it's hardly surprising that we've got countless people who feel it's perfectly acceptable to buy a house close to a business or venue that's known for being noisy, and then to immediately attempt to have said venue or business closed down! What's wrong with these people? They need to go get a life! Especially when we consider that they'll have got the house cheap to reflect the noise nearby - they just wanna have their cake and eat it too, don't they?

Ooops, sorry... I have gone on a bit haven't I? Perhaps it's because it's another one of those things that just p*sses me off!

Rant over.

[ensign14]

Originally Posted by Paul D

Could it be - and stay with me on this, as I know it's a bit 'out there' - that we have too many solicitors/lawyers these days who positively encourage anyone and everyone to pursue bonkers claims even when there's little chance of victory? Do you think it's possible? I know it's difficult to accept that a lawyer might advise one to pursue a claim (from which he's going to make a sh*tload of money, win or lose) when there's little chance of success. I mean... surely that's unethical? But what other explanation can there be?

Any lawyer who pursues a claim that he thinks is a no-hoper - without telling the client - would not last long as a lawyer.

Firstly, he will have a very unhappy client at the end, who at the very least will badmouth said lawyer and not pay, and may even end up suing the lawyer (after all, the client may be of a litigious mind...). Half the costs of any case are of the trial and if you annoy your client by losing - and don't have the money up front (which is possible because of the loading of fees) - the lawyer will be well out of pocket.

Secondly, only about 5% of claims end up in court, the others settle when it becomes apparent that the case is going one way or another; remember in many cases it's the client pushing and the solicitor doing their best to prevent abject disaster.

Thirdly, in this case, maybe Shields/Lawrence sued Mildenhall BECAUSE they're onto a no-lose; win the case, and they get a peaceful home; lose the case, and they sue whichever lawyer missed out the racing circuit nearby. Risky, because the lawyer may have mentioned it, and I wouldn't buy a house without looking at it and seeing what's within half a mile of it, but perhaps that's their aim - their current lawyers saying they could sue and get an indemnity.

Fourthly, it might be an insurance battle for that reason - subrogated claim/claim being funded by an insurer as to which idiot is responsible for cocking up their move (less likely given the CoA's comments at the end).

I think there may be another tactic going on generally, a sort of reverse Rachmann; property developer spots cheap land, realizes it's cheap because there's something noxious close by, buys land cheap, then gets noxious object moved/eliminated by claiming a nuisance, sells land at a massive profit...

[johngee]

Very interesting and perceptive posts Ensign. Thanks

[ascarmarshal]

This is now part of case law and can be used in evidence in other cases of a similar nature which will upset all sorts of NIMBY's

[GORDON STREETER]

Whilst the people in this particular case were either blind/stupid or had some other motive is open to conjecture.
What are peoples feelings to someone like my wife and I who had to fight a case when somebody tried to put 15ft high polytunnels up along our boundry ?
Most people can be a NIMBY given the right circumstances IMHO

[Paul D]

Gordon - I think there's one critical difference here between the case being discussed in this thread and your case with the polytunnels: I believe it's a case of pre-existing conditions.

If the polytunnels had already been there when you bought the property, but you went ahead and bought it anyway, and then tried to force the owner of said polytunnels to take them down because you didn't like the look of them, then I'd say that was wrong and was very much a NIMBY attitude.

Someone coming along near to where you already reside and attempting to erect something or carry out some activity that has a direct effect on your life is one thing, but moving into an area or property where there is a pre-existing situation that you know may well have an impact on you, and then trying to get it stopped because you don't like it personally, is altogether an entirely different thing in my opinion.

I think 'a reasonable man' (I seem to remember English law is based on this) would say that you have certain rights in the first instance, but that you would have few rights in the second instance, unless it could be shown that the pre-existing condition (in this case, noise from a motorsport venue) had changed significantly to your detriment since you first lived there. It would appear that was not the case here, hence the judgement against them - and rightly so in my opinion.

Yes, you're right - we probably do all have the capacity to be a bit NIMBY-ist given the right circumstances, but I don't believe that gives anyone the right to suddenly decide that something must be stopped simply because they don't like it, even though they knew full well it was going on when they moved there! And I'm not simply being pro-race circuit here: I'd use the same argument to defend a noisy/smelly factory or farm, or anything else if it's been going on for years before you moved there and suddenly decided you didn't like it.

If you don't like the smell of fish & chips cooking, then surely common sense tells you not to buy the house next door to the chippy!

[ensign14]

Originally Posted by Paul D

I think 'a reasonable man' (I seem to remember English law is based on this)...

Indeed - as one sage pointed out, under English law "there is no such concept as a reasonable woman."

The law on nuisance is largely checks and balances because a nuisance affects some peoples' lives and banning it also affects some peoples' lives. It's one reason why planning laws developed the way they did, so that there was an easier comeback rather than people being forced to go to court for rulings. Therefore with polytunnels it ought to be investigated by the council first and regulations imposed to balance the competing rights. And if they're put up sans permission it's easier to do something about it.

[GORDON STREETER]

You are of course preaching to the converted as we know all that (and more) I know that we don't have a right to a view and my slant on the issue was as regards "I think we can all be NIMBYS given certain circumstances"
In our well documented case we were up against big money and were told that we didn't have a chance but sensibility prevailed in the end as did the case in question on this thread.

[Alan Raine]

Originally Posted by Paul D

If you don't like the smell of fish & chips cooking, then surely common sense tells you not to buy the house next door to the chippy!

Like the well known racing driver who brought a house in the countryside and lost a case against a nearby farmer for having sheep that were too muddy and cows that were too noisy!!

[GORDON STREETER]

Perhaps I'll try getting a petition up as regards the air traffic noise from Gatwick over my house and get it closed down.
Mmm if I won how would I get to Spain as quick ?

[ensign14]

Originally Posted by GORDON STREETER

In our well documented case we were up against big money and were told that we didn't have a chance but sensibility prevailed in the end as did the case in question on this thread.

When it comes to an actual trial big money can't win unless it's backing a good case. The merit in paying big money to fight a case is (a) to put pressure on a weak other party (which in turn betrays a weak case) or (b) to get to the right answer quickly and, in the long run, more cheaply. Better off paying £100k on the day of instruction to find your case is rubbish than £1m over a year to lose at trial...

[Peat]

My uncle works in environmental planning and was moaning to me that 'It's imposible to get anything built in the country because of bloody NIMBY's - There ought to be a law just to overide them'

He convieninetly forgot to bring up that he is part of a community group lobbying against the building of a waste incinerator a mile from his house, the OTHER side of a motorway......

Everyone has it in them.

Kart tracks are coming under attack too, being forced to reduce the number of 2-stroke racedays. Someone built a house near to Clay Pigeon circuit recently (so im told) and won a case against them for example. Whilton Mill is also being attacked by a local resident complaining of noise (her house is a number of yards away from the M1.....).

I have just come to the conclusion that some people get-off on crapping on other people's joy.

[VIVA GT]

Originally Posted by Alan Raine

Like the well known racing driver who brought a house in the countryside and lost a case against a nearby farmer for having sheep that were too muddy and cows that were too noisy!!

Funnily enough, this thread reminded me of the FS Story...