The SC has held that a broader test ought to be applied in dealing with the question of whether damages in lieu of a final injunction should be awarded.
This case concerned a motor-cross track run at Ds’ premises. C purchased a nearby bungalow, and sued in private nuisance for an injunction to restrain noise nuisance from Ds’ premises.
HHJ Seymour QC found for C and granted injunctive relief. The CA allowed an appeal, relying on Ds’ activities as a feature of the “local neighbourhood” in determining a nuisance had not been committed.
The SC allowed C’s appeal and held: (1) that it was possible to obtain a prescriptive easement to carry on activities which would otherwise be a noise nuisance; (2) that it was no defence to a nuisance claim that a claimant “came to” the nuisance; (3) insofar as a defendant’s own activities constituted a nuisance, those activities should be left out of account in determining the “character of the local neighbourhood”; and (4) the fact that a defendant had planning permission to carry on a certain activity would normally be of no assistance in itself in resisting a claim of nuisance.
The question arose as to whether damages in lieu of a perpetual injunction was an appropriate remedy. Ordinarily, a property owner suffering a nuisance is entitled to an injunction. The Court has power, however, to order damages in lieu under s.50 Senior Courts Act 1981. The discretion had become practically circumscribed by the Courts applying too rigidly a 4 fold test of A.L. Smith LJ in Shelfer v City of London  1Ch 28. Damages were only being awarded in exceptional cases, where the injury to the claimant was small, could be adequately estimated and compensated in monetary terms and it would be oppressive to grant an injunction.
The SC considered that too restrictive an approach. Where the Shelfer test was made out, damages in lieu should be awarded. If the test was not made out, however, the Courts should enjoy a general, largely unfettered discretion. The decision is to be welcomed in terms of allowing the judge a broader armoury to do justice in each individual case, albeit at the cost of some certainty in outcome.
Richard Hayes / 1st Apr 2014
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