Kennaway v Thompson

Where a continuing actionable nuisance substantially interferes with the use and enjoyment of land, an injunction is ordinarily the appropriate remedy. Damages may be substituted only in exceptional circumstances. Public interest in the defendant’s activity does not by itself justify allowing the wrong to continue for payment.

The injunction must restrain only the conduct constituting the nuisance. It may therefore impose practical limits on the timing, frequency and noise of an activity while preserving activities about which the claimant cannot reasonably complain.

The defendants’ motor-boat racing club operated on water near the plaintiff’s home. Its racing, practising and water-skiing activities caused substantial noise. The defendants no longer challenged the finding that some activities constituted a nuisance.

Mais J awarded £1,000 for past nuisance and £15,000 under the Lord Cairns’ Act 1858 for future nuisance, but refused an injunction. He considered an injunction potentially oppressive because of public interest in the club and the likelihood of further litigation over its terms.

The plaintiff appealed, seeking an injunction. The central issue was whether damages could properly be substituted and, if not, how an effective injunction should distinguish between tolerable activities and those causing an actionable nuisance.

1. The appeal was allowed unanimously. Lawton LJ delivered the judgment of the court, which Sir David Cairns had approved. The plaintiff was entitled to an injunction. The award of £1,000 for past nuisance remained, but the £15,000 award for future nuisance was set aside.

2. The principles in Shelfer v City of London Electric Lighting Co (1895) 1 Ch 287 remained binding. In a case of continuing actionable nuisance, damages should replace an injunction only in exceptional circumstances. The court should not permit a defendant to purchase the right to continue a substantial wrong merely because it can pay compensation.

3. The injury was neither small nor satisfactorily measurable in money. The trial judge’s substantial valuation of the diminished value of the house did not make damages an adequate remedy. Public interest in motor-boat racing was not a sufficient reason to deny protection of the plaintiff’s private rights.

4. Miller v Jackson (1977) QB 966 did not qualify Shelfer. Lord Denning MR’s view that public interest should prevail over private interest conflicted with Shelfer. Cumming-Bruce LJ had relied instead on special circumstances, including the purchasers’ knowledge that their house adjoined a long-established cricket ground.

5. An injunction was justified only where noise exceeded what occupiers in the neighbourhood could reasonably be expected to bear. The controlling question was whether the defendant was using its property reasonably, having regard to its neighbour and the necessary measure of give and take.

6. The injunction had to restrain the nuisance without prohibiting unobjectionable activities. Because the plaintiff had known of tolerable motor-boat racing and water-skiing when she built her house, she could not complain of that existing kind of noise unless its volume increased through expanded activity.

7. The court imposed detailed limits. It permitted one three-day international event, two separated two-day national events and three separated one-day club events each season, with limited substitutions. At other times boats producing more than 75 decibels were prohibited, and no more than six motor-boats could be used simultaneously for water-skiing.

• Court of Appeal: The plaintiff’s appeal was allowed unanimously. The refusal of an injunction and the award of £15,000 for future nuisance were set aside. A tailored injunction was granted, while the £1,000 award for past nuisance remained.
• Queen’s Bench Division: Mais J found that some club activities caused a nuisance. He awarded £1,000 for past nuisance and £15,000 under the Lord Cairns’ Act 1858 for future nuisance, but refused an injunction.