Private nuisance - remedies

Question 1

Common law damages (3)

Answer 1

• Common Law Damages
  o C may recover damages for past harm (material damage) and for inconvenience (unreasonable interference with amenity)
  o Bunclark v Hertfordshire CC
   Where D’s nuisance causes physical damage, the measure is diminution in market value (compensation restores you to value fo property when you bought it if property has been devalued due to D’s actions)
  o Andreae v Selfridge
   Where D’s nuisance interferes with amenity, C may recover for excessive (unreasonable) interference
  o Hole v Chad
   Where D breaches an injunction (by continuing a nuisance) C may recover damages for harm suffered after the injunction was granted (Injunctive relief)

Question 2

Future anticipated harm - injunction

Answer 2

 C must prove that proprietary rights are being interfered with by D
 C will be denied injunctive relief if damages are adequate remedy

Question 3

Prohibitory injunction

Answer 3

• Prohibits D from unreasonably interfering with C’s interests – D has to act in a way to bring interference to an end

Question 4

Mandatory injunction (1)

Answer 4

• Requires D to take positive action
• Must be exercised sparingly and with caution (Redland Bricks v Morris)
• Redland Bricks v Morris
  o D’s clay digging operations undermined C’s wall
  o Cost of restoring wall was £35,000
  o Value of land affected was £1,500
  o Mandatory injunction refused – cost-benefit analysis

Question 5

Qualified injunction (1)

Answer 5

• Kennaway v Thompson
  o C’s house lay next to lake – power boat races took place on lake
  o C granted a qualified injunction – restricted number of boat races, duration of races, noise levels
  o Fair accommodation of competing land uses

Question 6

Quia timet injunction

Answer 6

• An injunction to prevent apprehended legal wrong
• C must establish justifiable fear of irreparable harm to property or self

Question 7

The suspension of injunctions (1)

Answer 7

• D is given time to adjust his/her behaviour so as to comply with the injunction
• Stollmever v Trinidad Lake petroleum
  o Nuisance caused by pollution of water – injunction suspended for two years for the necessary works to take place

Question 8

Damages in lieu of an injunction (7)

Answer 8

 Supreme Court Act s50
* Power to award damages in lieu of an injunction
 Shelfer v City of London Electric Co
* If injury to C’s property is small and can be expressed in monetary terms – damages would be an adequate remedy
 Coventry v Lawrence
* More flexible approach
* Planning permission can justify refusal of an injunction and the award of damages in lieu
 Bracewell v Appleby
* Damages in lieu of an injunction should represent ‘a proper and fair price’ for the continuing interference
 American approach – Boomer v Atlantic Cement Co
* Large cement factory interferes with C’s amenity
* NYCA award damages in lieu of injunction – it could not face economic consequences (job losses) of issuing an injunction
* Public issues outweighed C’s concerns
 Pennington v Brinksop Hall Coal Co
* C sought injunction, D argued injunction would close his business at a cost of £190,000 and 500 workers would lose their jobs
* Injunction was granted
* Expected harm to C was only £100
* When should public interest override private rights?
 Watson v Croft Promo-Sport
* D’s racing circuit was a source of noise
* C sought damages and injunctive relief
* High Court – damages in lieu of injunction
* CofA – C succeeded in securing qualified injunction
* D could only host noisier forms of racing on limited number of days per year – effort to accommodate a defensible accommodation of competing land uses

Question 9

Jenny Steele on remedies and public interest

Answer 9

 Calls for flexibility for many years as to remedy granted
 More flexibility might enhance the ability of courts to bring about socially productive outcomes to actions in nuisance
 Counter to Steele’s argument – danger of ruthlessness? – would private rights be overridden in pursuit of public benefit?