Encroachments and Schedule 6 LRA 2002: Unknotting the Tangle

This is a pre-copyedited, author-produced version of an article accepted for publication in Conveyancer and Property Lawyer following peer review. The definitive published version will be available online on Westlaw UK or from Thomson Reuters DocDel service. Until then, this version is embargoed

Lawrence v Fen Tigers: where now for nuisance?

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.Non

Registration Make-Believe and Forgery – Swift 1st v Chief Land Registrar

This is the author accepted manuscript. The final version is available from Sweet & Maxwell in The Law Quarterly Review, Vol. 131, pp. 515-519. The full text may be found via Westlaw UK (http://legalresearch.westlaw.co.uk/), with a valid subscription

Horizontal Effect and Article 8: McDonald v McDonald

The Court of Appeal in McDonald v McDonald [2014] EWCA Civ 1049 refused to introduce a proportionality assessment into the process of granting a possession order under section 21 Housing Act 1988. In reaching this conclusion, the court engaged with, but ultimately rejected, the possibility of horizontal effect of article 8 in relation to possession actions against tenants by private landlords. The result in this case is correct – there is no opportunity within the statutory scheme for a proportionality assessment. If one is required, the statutory provisions must be amended, but the court’s reasoning in reaching this result fails to distinguish between direct horizontal effect, whereby an obligation is imposed onto the landlord, and statutory horizontal effect whereby an obligation is imposed onto the court through the interpretation obligation of section 3(1) HRA 1998. This results in a misrepresentation of the relevant Strasbourg authorities, giving rise to the potential for confusion in future cases.This is the author accepted manuscript. The final version is available in Law Quarterly Review Vol. 131, pp. 34-39. It may also be accessed via Westlaw UK (https://login.westlaw.co.uk/), with a valid subscription

Article 8, Proportionality and Horizontal Effect

This is the author accepted manuscript. It is currently under an indefinite embargo pending publication by Sweet & Maxwell

Morphological analysis of legal ideology: locating interpretive divergence

Purpose This purpose of this paper is to present a ‘manifesto’ exploring a methodological approach to legal analysis, relying upon a morphological understanding of ideology. Approach We explore ideology within law and legal culture. We examine one such ideology – rule of law – and consider how this can shape judicial decision-making. We suggest techniques by which such influences can be identified. Findings We make four findings. First, following Freeden, ideology can be understood as a ubiquitous form of political thinking which seeks to fix the meanings of essentially contested concepts. Second, ideology in this sense forms an important part, but is distinguishable from, the wider notion of legal culture. Considering ideology in law as an element of legal culture can therefore be fruitful in providing a rich understanding of interpretive disagreements among the judiciary. Third, rule of law as an ideal is itself ideological, as it comprises contested concepts such as certainty, equality, stability, and legality. It can be considered to constitute an internal ideology of law and we can analyse how the concepts are de-contested in individual decisions. Finally, understanding this can help in the analysis of judgements in areas with high levels of administrative discretion and political contestation, such as planning and environmental law, as it helps us to understand how any particular judge sees the role of the court in its wider political context. Originality The originality of our approach lies in the drawing together of methodological techniques and understandings of ideology in, and in relation to, law

Inadequacies of micronutrient intake in normal weight and overweight young adults aged 18-25 years: a cross-sectional study

Objectives: This study aims to assess adequacy in micronutrient intake in comparison with reference nutrient intakes (RNI) and to identify differences in intakes between normal weight and overweight individuals. Study design: A sample of 542 university students (18e25 years), normal weight (N ¼ 369) and overweight (N ¼ 173), was included in a cross-sectional study. Methods: A three-day diet diary was used to assess energy and nutrient intake. BMI and waist circumference were measured. Results: Mean dietary vitamin D intake was lower than RNI in both men (4.44 mg) and women (5.04 mg). Mean intakes of calcium (597.44 mg), iron (8.62 mg) and folate (171.29 mg) were also lower than recommendations in women. Weight status (normal weight versus overweight) was significantly associated with micronutrient intake, and a trend towards a decrease in vitamin and mineral intake with increasing weight was noted. Conclusions: Results suggest the need to increase the intake of some micronutrients to meet the RNI, to ensure optimal health. This study provides a helpful tool to reinforce recommendations and potential health promotion and intervention strategies in university settings and could influence manufacturers involved in new food product development targeted to this young population

Response to comment by Moxon et al

Peer reviewedPublisher PD