Supreme Court expresses views on use of injunctions and other important matters.

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

The Supreme Court decision in Coventry v Lawrence [26 February 2014] could prove a watershed moment for when an injured party will be entitled to an injunction in preference to a pure damages remedy. The case has multifarious other noteworthy implications, set out in the Executive summary below. Publicity around this case has focused on its impact on rights to light situations. While the comments made in the judgments on the award of damages instead of an injunction are, generally, significant, the Justices appeared to be careful to highlight the differences between noise nuisance (to which this case related) and rights to light, when it comes to the issue of determining whether damages should be awarded in lieu of an injunction.

Executive summary

• It is possible to obtain, by prescription, a right to commit what would otherwise be a (private) nuisance by noise, or, in other words, to transmit sound waves over neighbouring land. Mere non-use, or inactivity, for, say, two out of 20 years, at least in the absence of other evidence, would be insufficient to justify a court concluding that an action, which has been carried out for the other 18 years fairly consistently and to a significant extent in each of those years, had failed to establish a prescriptive right. However, it is crucial that the activity has created a nuisance, and not merely a noise, over that period.

• At least in a case where the claimant in nuisance uses her property for essentially the same purpose as that for which it has been used by her predecessors since before the alleged nuisance started, it is not a defence to a claim in nuisance to show that the claimant acquired, or started to occupy, her property after the nuisance had started.

• A defendant, faced with a contention that his activities give rise to a nuisance, can rely on those activities as constituting part of the character of the locality, but only to the extent that those activities do not constitute a nuisance - and if the activities could not be carried out without creating a nuisance, then they would have to be entirely discounted when assessing the neighbourhood's character.

• The mere fact that the activity which is said to give rise to the nuisance has the benefit of a planning permission is normally of no assistance to the defendant in a claim brought by a neighbour who contends that the activity causes a nuisance to her land in the form of noise or other loss of amenity. There will be occasions when the terms of a planning permission could be of some relevance in a nuisance case.

• As to whether to award damages instead of an injunction, there were differences in the views of the Supreme Court justices. In the leading judgment, Lord Neuberger stated that the prima facie position is that an injunction should be granted, so the legal burden is on the defendant to show why it should not. Subject to that burden, when a judge is called on to decide whether to award damages in lieu of an injunction, there should not be any inclination either way: the outcome should depend on all the evidence and arguments.

• The application of the four tests inShelfermust not be such as "to be a fetter on the exercise of the court's discretion"; it would, in the absence of additional relevant circumstances pointing the other way, normally be right to refuse an injunction if those four tests were satisfied; and the fact that those tests are not all satisfied does not mean that an injunction should be granted. The grant of planning permission for a particular activity may provide strong support for the contention that the activity is of benefit to the public, which would be relevant to the question of whether or not to grant an injunction.

Please click here for a more detailed analysis of this case.

Warren Gordon, Head of Real Estate Know How at Olswang LLP.