Kennaway v Thompson
Court of Appeal
Citations: [1981] QB 88; [1980] 3 WLR 361; [1980] 3 All ER 329; [1980] JPL 515; (1980) 124 SJ 378; [1980] CLY 2007.
Facts
The claimant owned land next to an artificial lake. The defendant used this lake to organise boat racing and water skiing. Shortly after the claimant built a house on her land, but before she went into occupation of it, the defendant’s activities increased substantially. After the claimant moved in, the defendant was organising races and practice sessions involving loud boats most weekends throughout late spring to early autumn.
The claimant sued the defendant for private nuisance in relation to the noise. At trial, she obtained damages but the trial judge refused to grant an injunction, choosing instead to grant damages in lieu. He justified this on the basis that it would be oppressive to the defendant, who was providing a public interest service. The claimant appealed.
Issue(s)
- Was the trial judge correct to deny the injunction against the defendant on the basis of public interest?
Decision
The Court of Appeal held in favour of claimant. The trial judge was not entitled to deny an injunction based on the public interest.
This Case is Authority For…
The court is bound by the principles in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 when determining whether to grant damages in lieu of an injunction. Generally, where the nuisance is ongoing, an injunction should only be denied in exceptional circumstances.
The public interest in the defendant’s activities will not normally amount to exceptional circumstances, particularly if the injunction only restricts the activity rather than blocking it entirely.
Other
Lawton LJ commented that when determining whether the defendant is making reasonable use of his land, ‘there must be a measure of give and take, live and let live.’
