Once a case of nuisance has been established the appropriate remedy is a matter for the trial judge.
The High Court has considered this in Hawkwell House Hotel Ltd and another v Pirie and another [2024] EWHC 3284 (Ch).
The appellants operated a hotel and the respondents owned the neighbouring property. The dispute related to the wall separating the two properties. In November 2019, a section of the wall collapsed and urgent repairs were carried out. The respondents commenced county court proceedings, fearing further problems. They succeeded in establishing that the appellants were guilty of nuisance having allowed a build-up of earth on their side of the wall to a height which rendered it unstable on the respondents’ side.
The two alternative remedies were:
i) the garden wall solution which required earth on the hotel side to be permanently removed or battered back and kept at no more than a metre from the base of the wall allowing it to be rebuilt in a stable manner with limited reinforcement;
ii) the retaining wall solution which required temporary removal of earth on the hotel side to allow rebuilding and reinforcement work to create a retaining wall with the earth then reinstated to its original height.
A building contractor instructed by the appellants estimated the costs of the garden wall at £125,000. The respondents’ expert estimated £152,700 and £205,700 for the retaining wall.
The judge decided that damages would not be an adequate remedy and that an injunction was a just and convenient solution which would make the rebuilding works more cost effective, simpler and ultimately more effective. The respondents were permitted to carry out the garden wall solution works and the appellants were ordered to batter back the earth on the hotel side and maintain it at a reduced height and to pay the respondents damages to cover the cost of the remedial works.
The High Court dismissed the appeal. The appellants were guilty of nuisance and did not challenge that finding. The prima facie remedy for nuisance is an injunction Lawrence v Fen Tigers Ltd [2014] UKSC 13 subject to the court’s power to award damages in lieu which involves an exercise of discretion. The judge was entitled to decide that an injunction was justified and to refuse an award of damages. She had given proper consideration to evidence submitted by the appellants and balanced the relevant factors in assessing how best to respond. The judge was justified in taking into account the perceived higher cost of the retaining wall solution which itself would have required a mandatory injunction.
Louise Clark is a property law consultant and mediator
