Goode v Owen & Anor

In a private nuisance claim involving recurring physical intrusions onto neighbouring agricultural land, the nuisance may be confined to the area directly affected. Substantially larger areas cannot be treated as unavailable merely because machinery must work around the intrusion where the remaining land remains practically capable of profitable use. Injunctive relief must be proportionate to the extent of the nuisance, the area protected, the cost and burden of the proposed works, and their likely effectiveness. A measure need not eliminate every instance of the nuisance, but incomplete effectiveness weighs against a disproportionate injunction. Where nuisance is established but an injunction is unjustified, damages are the appropriate remedy. Risk assessments may differ between ordinary grazing and feeding hay in troughs.

The claimant, a farmer, sued the owners and operator of a neighbouring golf driving range after golf balls repeatedly landed on his land. The Birmingham County Court found a nuisance, ordered a conditional 40-foot fence, and awarded damages of £15,106 plus interest. The defendants appealed the finding that the golf balls prevented profitable mowing of the whole relevant area, and challenged the injunction and damages assessment.

The Court of Appeal considered whether the nuisance extended beyond the approximately two-and-a-half acres where balls landed, whether the remaining land could reasonably be mown, whether the proposed fence was proportionate, and whether hay from the affected land could safely be used as winter feed.

Appeal allowed in part. Pill LJ gave the leading judgment. Tuckey LJ and Jonathan Parker LJ agreed.

1. The Court of Appeal upheld the finding that the repeated escape of golf balls constituted a nuisance. However, the nuisance was confined to the approximately two-and-a-half acres shown as the contaminated areas. The evidence and plans did not establish that the remaining land, including the wider 16- or 18-acre area, was incapable of being mown by machinery.

2. The lower court had wrongly treated inconvenience arising from irregular mowing and changes of direction as making the uncontaminated remainder unusable. The relevant question was whether the remaining land was practically capable of profitable agricultural use. On the evidence, the encroachments did not create an insuperable mowing problem.

3. Injunctive relief required a proportionate balance between adjoining landowners. The proposed fence would protect only the largest contaminated area, about one-and-a-half acres, at a cost approaching £60,000 and with the possibility that some golf balls would still escape. Although incomplete effectiveness is not an absolute bar to remedial relief, it was a material factor. The partial sterilisation of the affected area could not justify the large and expensive fence. The injunction was therefore set aside.

4. Damages were the appropriate relief for the established nuisance. Since the Court of Appeal had reached its conclusion on a substantially different basis from the lower court, the damages issue was remitted to the County Court for assessment on the corrected basis.

5. The lower court’s finding that the risk of ingestion was minimal applied to grazing in the fields, not to hay fed from troughs. The evidence supported the conclusion that golf balls could be ingested in troughs and cause injury or death. The claimant was therefore entitled to regard hay or silage from the contaminated areas as unsuitable for trough feeding.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 2101, the defendants’ appeal was allowed in part. The nuisance finding was upheld, the injunction was set aside, and damages were remitted for reassessment.
• Birmingham County Court: His Honour Judge Nicholl found a nuisance, made a conditional order for a 40-foot fence, and awarded damages of £15,106 plus interest.