Lawrence v Fen Tigers: where now for nuisance?

Change log

The recent decision of the Supreme Court in Lawrence v Fen Tigers 1 is significant, not least for the fact that it is one of few recent decisions of the highest court in relation to the tort of nuisance. In addition to giving general guidance on the relationship between nuisance and planning and with regards to the appropriate remedy in nuisance cases, it discusses the potential for an easement to make noise. In many respects the decision can be said to be helpful and welcome. The clarification of the role of planning permission within nuisance actions is extremely useful. There are some questions raised by the decision however, and the indication that the judges would be willing to see a greater role for damages within nuisance is both significant, and from a property law perspective at least, potentially problematic. What the decision does not tell us however, despite the clear acknowledgment from the judiciary that the appeal raised the issue, is what the role of nuisance is and ought to be in an era of heavy regulatory control on the use of land. Facts The claimant's house, in a rural location in Suffolk, was within approximately half a mile of a stadium at which there were regular motor races. The levels of noise emitted during the races were high - and the claimants brought an action in nuisance against the defendants. The defendants argued that the planning permission which they had been granted permitting such racing prevented a successful nuisance claim, as well as arguing that the longevity of their actions prevented C from bringing a claim at this point (either due to the acquisition of an easement by prescription, or because long user meant that the race track now formed part of the character of the locality). Decision The decision of the court can be divided into three key sections, albeit that not all members of the court agree on all issues. Firstly, the court was required to decide whether the claimants had acquired an easement to make noise. Secondly, the court was then required to assess whether, if no such easement had been acquired, the actions of the defendants constituted a nuisance to which they had no relevant defence. In order to answer this question the court needed to assess whether it could be argued that either the claimants having â come toâ the nuisance, or the existence of planning permission in favour of the speedway track, could prevent a successful action in nuisance. Finally, if the court concluded both that there was no easement, and that there was a good claim in nuisance, they had to decide the appropriate remedy to grant.

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Conveyancer and Property Lawyer
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Sweet & Maxwell
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