We all know that a defendant cannot avoid liability in nuisance by claiming that the plaintiff chose to acquire or build on the land knowing that it was subject to the interference constituting the nuisance. As the point is usually expressed, coming to the nuisance is no defence.1 Again, it cannot be said that an activity causing a nuisance is statutorily authorised if it only began following the grant of planning or resource consent, even if the use of that consent means that a nuisance is inevitable or highly likely. Rather, in such a case, the question whether a nuisance exists must be determined on ordinary bases, balancing the interest of one occupier in using land as he or she thinks fi t with a neighbour’s interest in the quiet enjoyment of his or her property. The interference is actionable only if it is “unreasonable”, in the sense that it exceeds what an ordinary person in the plaintiff’s position can reasonably be expected to tolerate. In making this judgment, the court takes into account the character of the neighbourhood, which may change over time in a way which leads to a reduction in the level of freedom from interference which the plaintiff can reasonably expect. If a nuisance is established, the plaintiff usually is seen as prima facie entitled to an injunction to restrain the interference, but the court has power to award damages in lieu of such injunction.
The application of all the above propositions was in issue before the UK Supreme Court in its recent decision in Lawrence v Fen Tigers Ltd. In 1975, an owner of land, acting pursuant to planning permission, constructed a stadium to be used for motor sports. In 1992, he obtained temporary planning permission to use adjoining agricultural land as a motocross track, and in 2002, following several temporary renewals, he was granted permanent permission. The conditions attached to the permissions limited the frequency and times of activities at the stadium and track, but not the level of noise. In 2006, the claimants bought a house nearby, and shortly thereafter complained about the noise. The local planning authority served abatement notices on the organisers of events at the stadium and the lessee of the
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