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Noisy Tigers, Hidden Nuisance - Lawrence v Fen Tigers

15 April 2011

In this article we look at the case of Lawrence v Fen Tigers.

Landlords of industrial and recreational sites should be careful that they cannot be held liable for the acts of their tenants that may become a nuisance to neighbouring properties. There is no prescriptive right to cause a nuisance and ‘coming to a nuisance’ is not an absolute defence.

Background

Nuisance protects property owners against ‘indirect’ interference with the use and enjoyment of their land. For example, excessive noise or the emission of noxious fumes from a defendant’s land will be a nuisance if it interferes with an individual’s use and enjoyment of their garden or house.

In a recent case, Ms Lawrence and her partner bought a house close to the Fen Tigers’ stadium and track where speedway, stock car racing and motocross events were held. The noisy events had been undertaken since long before Ms Lawrence bought the property.

Ms Lawrence alleged that the noise from the stadium and track amounted to a nuisance. Fen Tigers submitted that the stadium benefitted from a prescriptive right to cause a noise nuisance as a result of the long use of the land as a race track and stadium.

The court held that there could be no right, acquired by prescription, to generate noise which would otherwise be a nuisance to an adjoining occupier. The law does not recognise an easement of noise, or an easement only exercisable between certain times of day or on a limited number of occasions in the year. Ms Lawrence was awarded damages of approximately £21,000 and an injunction restraining Fen Tigers from causing or permitting noise to be generated above certain designated levels at specified times of the day. The order did not prevent the sporting use of the stadium and the track (and Ms Lawrence was not attempting to do so), merely controlled it at acceptable levels.

Was the landlord liable?

The landlord of the stadium and track was not liable for the tenant’s or operator’s nuisance. Even where there is a lease covenant against causing a nuisance, the failure of a landlord to enforce that covenant does not mean they have adopted the nuisance and become liable for it. A landlord cannot be held liable in nuisance for acts of his tenants where premises, which are not themselves a nuisance, are let to a tenant who nevertheless chooses to use them so as to create a nuisance. To establish liability, it is therefore not enough for landlords to be aware of a nuisance and fail to take steps to prevent it. To be liable, they must either participate directly in the commission of the nuisance, or they must have in some way authorised the nuisance. The landlords in the Fen Tigers case were held not to have authorised the nuisance as there were covenants in the lease against causing a nuisance.

In an earlier case with similar facts that involved go-kart racing, the landlord was found to be liable for the nuisance caused to neighbours by its tenants. The judge held that the noise complained of was an ordinary and necessary consequence of go-kart racing and as the lease granted the right to use the premises for that purpose the landlord could be taken to have authorised the nuisance and be liable for it. The difference between the cases is that the wording of the lease in the Fen Tigers case prohibited the tenants from causing a nuisance, whereas the wording of the lease in the earlier case was considered to authorise the nuisance. Careful drafting is required to protect landlords from liability.

No defence of ‘coming to the nuisance’

It is no answer to a claim in nuisance for the defendant to show that the claimant brought the trouble on themselves by moving so close to the defendant’s premises that they would inevitably be affected by the nuisance. This rule was acknowledged in a case where a cricket club was guilty of nuisance from balls repeatedly landing in neighbours’ gardens. However, the Court of Appeal refused to grant an injunction and permitted cricket to continue on the ground because “the greater interest of the public should prevail over the hardship of the individual householder”.

While the courts do not allow a defence of ‘coming to the nuisance’ when finding whether or not a nuisance exists, they do consider the interests of both parties when deciding the extent of any award or injunction granted. In this way, the cricket club case and the Fen Tigers case can be reconciled. Cricket was only played at the ground during the summer months at the weekends and on some evenings, meaning it was not a constant nuisance to neighbours. In the Fen Tigers case, the court balanced the interests of both parties by granting an injunction restraining the defendant from causing or permitting noise to be generated above certain levels at specified times of the day. The outcome of both cases was that the defendants were guilty of nuisance but could continue to carry out their sporting activities during limited hours.

Source: Lawrence and anor v Fen Tigers and ors [2011] EWHC 360 (QB), Tetley v Chitty [1986] 1 All ER 663, Sturges v Bridgman (1879) L.R. 11 Ch. D. 852, Miller v Jackson [1977] Q.B. 966