Hawkwell House Hotel Limited & Anor v Fernanda Pirie & Anor

Where nuisance has been established, an injunction is ordinarily the appropriate remedy for preventing its continuation, although the court retains a discretion to award damages instead. The precise form of injunction is fact-sensitive. The court must balance the competing interests, assess the evidence, and consider whether the proposed order is a rational and proportionate response to the nuisance. An appellate court should not interfere with the evaluation of evidence merely because another judge might have reached a different conclusion. Intervention is justified only where no reasonable judge could have reached the decision. An order may be varied to correct an apparent inconsistency where its intended operation is clear.

The appellants operated a hotel adjoining property owned by the respondents. A boundary wall became unstable because earth had been allowed to build up on the hotel side. The County Court found nuisance and selected a remedy involving the permanent reduction and maintenance of the earth level, together with permission for the respondents to rebuild the wall, damages and costs.

The appellants appealed against the remedy. They argued that a substantially reinforced retaining wall would avoid the need for a continuing mandatory injunction, that the judge had failed to consider their evidence and preferences, that the comparative costs had been wrongly assessed, and that the order was excessive, uncertain and internally inconsistent.

1. Appeal dismissed. The court held that, once nuisance had been established, the County Court judge was entitled to regard an injunction as justified and to refuse damages in lieu in the exercise of her discretion. The appellants’ real challenge concerned the form of injunction rather than the need for some order requiring works. [2014] UKSC 13 and [2014] AC 822 supported the approach that the remedy and its precise form depend on the facts.
2. The judge was entitled to prefer the Garden Wall Solution. She had considered the evidence and submissions concerning drainage, stability, structures and access. The objections were insufficient to outweigh the advantages of that solution, including its likely cost, simplicity and effectiveness in producing a safe and sustainable boundary.
3. The comparative-cost finding was an evaluation of evidence. The judge was entitled to prefer the quantity surveyor’s figures, which provided a direct comparison on a common access assumption, over the contractor’s less comparable evidence. The appellants failed to show that no reasonable judge could have reached that conclusion.
4. The continuing obligation to prevent further build-up of earth was not unduly onerous. Onerousness had to be assessed against the nuisance found, namely the creation of an unnatural and dangerous level of earth which had already contributed to the collapse of part of the wall. The order was personal to the appellants and did not directly bind successors in title.
5. The apparent inconsistency between the injunction and the plan annexed to the order was a genuine defect, but it was capable of correction. The order was to be varied appropriately, preferably by substituting a replacement plan, and also to reflect that remedial works to the collapsed section had already been completed.

• High Court, Chancery Appeals: Appeal from the County Court decision dismissed. The order was to be varied appropriately to resolve the inconsistency between the injunction and Annex B and to reflect completed remedial works.
• County Court at Oxford: HHJ Melissa Clarke found nuisance and ordered implementation of the Garden Wall Solution, with damages and costs.