The case of Lawrence v Fen Tigers Limited confirmed that there
is no defence in a claim for nuisance that the claimant moved to a
property already affected by the nuisance. This rule was
established in a case where a cricket club was found liable for a
nuisance from cricket balls repeatedly landing in the gardens of
Whilst the courts do not allow this defence, they do consider
the interests of all parties. One of the issues they consider is
the proportionality of the nuisance. In the cricket club case,
cricket was only played during the summer months in the evenings
and weekends. As it was not a constant nuisance to the neighbour,
the court refused to grant an injunction that would have prevented
use of the cricket ground.
WHAT HAPPENED IN FEN TIGERS
In Lawrence v Fen Tigers Limited, heard this year, Fen Tigers
tried to convince the court that they had acquired the right to
generate noise, through prescription. Under the law of prescription
a party would be able to claim a right if they had enjoyed that
right without permission for in excess of twenty years.
Fen Tigers were the tenants of a stadium and road track which
held speedway and motor cross racing events approximately 24 times
a year. The events were held typically on a Saturday and carried on
into the late evening. Ms Lawrence had purchased a house near to
the track long after the motor racing activities of Fen Tigers had
The court confirmed earlier decisions and held that it was no
defence for Fen Tigers to argue that Ms Lawrence knew of the noise
when she moved to the property.
The court also confirmed 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
The court found Fen Tigers liable for the nuisance and imposed
an injunction which limited the use of the track for motor racing
to specified times of the day and also imposed restrictions on the
level of noise being created.
WOULD THE LANDLORD BE FOUND TO BE LIABLE FOR A NUISANCE?
The court reaffirmed that the freehold owner of a Property would
not be held liable for acts by the tenant which cause a nuisance to
neighbouring premises. For there to be a liability, it is not
enough to say that the landlord was aware of the nuisance and did
nothing about it, the affected neighbour must establish that the
landlord either directly participated in the nuisance, or in some
way authorised it.
It is vital that the lease documentation is drafted carefully to
protect the landlord, and very careful attention should be paid to
the lease documentation to ensure that the landlord will not face
liability. In an earlier case with very similar facts, the owner of
a go-cart track was found liable for the nuisance caused by its
tenants. In that case, the lease specifically authorised the right
to use the premises for the purpose of a go-cart track and so the
landlord was held to have authorised the nuisance. In the Fen
Tigers case, the lease prohibited the tenants from causing a
nuisance and the landlord was not liable.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Probably the most significant change from previous practice in Guernsey law under the Companies (Guernsey) Law 2008, which came into effect on the 1 July 2008, was the consignment to history of the concept of capital maintenance, which was discarded in favour of a solvency model as the basis of a company’s ability to pay distributions and dividends.
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