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Flying cricket balls and noisy motorbikes have a long history of testing the legal balance between the public interest in sport and the private interest in the peaceful enjoyment of land or the avoidance of injury.

In the famous case of Bolton v Stone [1951] AC 850, the plaintiff Miss Stone was injured by a ball hit from within a cricket ground adjacent to her home.  As the headnote to the Law Report records, “…the hit now in question was altogether exceptional”.  The Law Lords, scarcely concealing their admiration for this extraordinary “straight drive”, rejected Miss Stone’s claims for negligence and nuisance; and their reasoning is a slice of the 1950s.  The correct legal standard, their Lordships said, was not that of the “timorous” Miss Stone: it was the standard of a “reasonable man”.  What would a reasonable man have done to prevent the incident?  Absolutely nothing.  As Lord Radcliffe explained: “…a reasonable man, taking account of the chances against an accident happening, would not have felt himself called upon either to abandon the use of the ground for cricket or to increase the height of his surrounding fences. He would have done what the appellants did: in other words, he would have done nothing”.  Thus foundered Miss Stone’s claim.  But, Lord Reid warned, if the shot had not been so exceptional, the position would have been different: “If cricket cannot be played on a ground without creating a substantial risk, then it should not be played there at all”.

In the successor case of Miller v Jackson [1977] QB 966, the plaintiffs were the owners of a house with a garden into which cricket balls were regularly hit by players at a neighbouring cricket club.  The fate of their nuisance claim against the club will have been clear to them from the first sentence of Lord Denning MR’s judgment, that: “In summertime village cricket is the delight of everyone.” Having described the ground in question (“they tend it well”), the wicket (“well rolled and mown”), the outfield (“kept short”), the quality of the club house (“good … for the players and seats for the onlookers”) and other vital facts, Lord Denning got to the point (emphasis added):

“…now after these 70 years a judge of the High Court has ordered that they must not play there any more. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket.”

The “newcomer” status of the plaintiffs was, for Lord Denning, fatal to their claims.  The planning authorities, he adjudged, should never have given permission for the houses to have been built where they might “interfere with the cricket”, but since they had done so, no occupier could thenceforth complain if cricket balls landed in their garden.  If that meant that the ownership of the new houses was limited to “cricket enthusiasts”, then so be it.  Mrs Miller was “…a very sensitive lady who has worked herself up into such a state … that, for peace in the future, one or other has to move”, and it was not going to be the cricket club.  The other members of the Court of Appeal (Geoffrey Lane and Cumming-Bruce LJJ) disagreed with Lord Denning on liability.  It was no defence, they held, for the cricket club to argue that the plaintiffs had “come to the nuisance” by virtue of the developers having built the houses so close to the cricket ground.  However, Cumming-Bruce LJ agreed with Lord Denning that that there should be no injunction, because of the public interest in the continued playing of cricket at the ground.  The cricket club survived by a whisker.

The legal debate moved from flying cricket balls to noisy motorbikes in Lawrence v Fen Tigers [2014] AC 822.  In that case, the claimants had moved in 2006 to a bungalow which was only 560 metres away, across open fields, from a speedway track at which motorbikes and stock cars had been racing noisily, pursuant to successive grants of planning permission, since 1975.  The Court of Appeal held that these facts could not found a nuisance claim: the dominant feature of the locality at the time the claimants had moved in was the motorbike racing, pursuant to planning permissions, and the claimants could not therefore complain about it.  The Supreme Court disagreed, finding that the owners of the speedway track could not rely on a planning permission permitting the very noise which was alleged to constitute a nuisance as making that noise an established part of the character of the locality; and that the fact of planning permission was not a major determinant of liability in any event.  The Supreme Court restored an injunction limiting the sports activities at the track.

The legal position is therefore clear: a sports stadium or club may be exposed to private law liability in negligence or nuisance to occupants of neighbouring premises, even if the disgruntled claimants move in decades after the establishment of that club and in full knowledge of its activities, and even if the sporting activities are taking place pursuant to a valid grant of planning permission.  The principal exceptions (i.e. establishing that an event was so “exceptional” as to benefit from the rule in Bolton v Stone, or an easement by prescription) are not easily established by any means.

The practical effect of this legal rigour may, however, be an unexpected victory for Lord Denning’s preferences in Miller v Jackson, as the recent High Court case of R (East Meon Forge and Cricket Ground Protection Association) v East Hampshire District Council [2014] EWHC 3543 (Admin) demonstrates.

In the East Meon Forge case, a cricket ground was situated very close to an empty property known as The Forge.  On average, a ball would strike The Forge every other match.  A property developer nevertheless sought and obtained permission to develop The Forge by extending it and adding a further storey, featuring a “deck area” as well as “Velux roof windows” and “louvred shutters”.  The developers proposed an imaginative solution to the inevitable problem posed by cricket balls, namely a “4 metre high net to be erected on match days; window and door shutters; and a protective net and an awning for the deck”, all to be “capable of remote control by the cricket club”.  Sport England, a statutory consultee, opposed the grant of planning permission on the basis that it was “likely to prejudice the use, or lead to the loss of use, of land being used as a playing field”, because the “only means of enforceable mitigation would be a ball-stop fence, permanently installed, with a planning condition requiring it to be erected and maintained in perpetuity”; and that “[e]ven this would not absolve the club from legal liability if damage occurred”.

The High Court Judge assigned to this case (Mrs Justice Lang DBE) was, to use Lord Denning’s terminology, “…no lover of cricket”.  Outrage was expressed in The Telegraph that she was unaware of what a four or a six were (  But though she was no cricket fan, Mrs Justice Lang did rule that the representations of Sport England had been rejected by the planning authority “…without giving any or any adequate reasons”.  The proposed development created “unacceptable risks” not merely for the future occupants of The Forge, but also for the cricket club itself, in the form of potential legal liabilities.  The planning permission was quashed.

So, the rigorous approach of the law to negligence and nuisance in the context of sporting grounds, evidenced most recently in the Lawrence decision, has led in at least one case to a refusal of permission to develop a property near to such a ground (for the time being).  This is a result which would please Lord Denning immensely.  Perhaps, after a long journey, the law has arrived at a destination where Mrs Miller’s house would never have been built next to the cricket ground which he so lovingly described at all.

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