THERE IS NO DEFENCE OF COMING TO THE NUISANCE
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 neighbouring properties.
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 begun.
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 year.
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.
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