Kennaway v Thompson and Another

Court of Appeal
30 April 1980
[1978 K. No. 87A]
[1981] Q.B. 88
Lawton and Waller L.JJ. and Sir David Cairns
1980 March 24, 25, 26; April 30
InjunctionJurisdiction to grantNuisanceHouse built close to lake used for motor
boat racingNoise interfering with enjoyment of occupationAction by householder
for damages for nuisance and injunction against racing motor boatsLiability
establishedWhether equitable remedy of injunction appropriateWhether public
interest to prevail over interest of private individuals
The plaintiff owned land next to a man-made lake on which a motor boat racing
club had organised and carried on racing and water skiing activities since the
early 1960's. Having obtained planning permission in 1969, she built a house,
and went into occupation of it in 1972. From about 1969 there was a
considerable increase in the club's activities, and by 1977 there were race
meetings most weekends between April and October with large, noisy boats
taking part. Before each meeting there was a period of practice. In 1977 the
plaintiff brought proceedings against the defendants as representatives of the
club claiming damages for nuisance caused by the noise of the club's activities
and an injunction to restrain further nuisance. Mais J. awarded her 1,000
*89 damages for past nuisance, but refused to grant an injunction on the
ground that, because there was considerable public interest in the club it would
be oppressive, and he awarded her 15,000 damages in lieu, being the
diminution in value of her property by reason of the nuisance.
On appeal by the plaintiff and cross-appeal by the defendants:-
Held, allowing the appeal and dismissing the cross-appeal, that in considering
whether to award damages in lieu of an injunction the court was bound by the
principles set out in Shelfer v. City of London Electric Lighting Co. [1895] 1 Ch.
287 ; that in cases of continuing actionable nuisance the jurisdiction to award
damages ought only to be exercised under very exceptional circumstances, and
the public interest in continuing the activity constituting the nuisance did not
prevail over private interest in obtaining an injunction, and, accordingly, the
plaintiff was entitled to an injunction to restrain future nuisance.
Shelfer v. City of London Electric Lighting Co. [1895] 1 Ch. 287 , C.A. followed.

Miller v. Jackson [1977] Q.B. 966 , C.A. considered.
Decision of Mais J. reversed in part.
The following cases were referred to in the judgment:

Miller v. Jackson [1977] Q.B. 966; [1977] 3 W.L.R. 20; [1977] 3 All E.R. 338, C.A. .
Shelfer v. City of London Electric Lighting Co. [1895] 1 Ch. 287, C.A. .

APPEAL from Mais J.
The plaintiff, Mary St. Joan Howard Kennaway, brought an action against Derek
Thompson and Audrey Holden, sued on their own behalf and on behalf of all other
members of the Cotswold Motor Boat Racing Club ("the club"), claiming an injunction
and damages for nuisance, including special damages for diminution in the market
value of her house by reason of the activities of the club on a lake adjoining her
property. On May 24, 1979, at Reading, Mais J. awarded the plaintiff damages
totalling 16,000, being 1,000 general damages and 15,000 for diminution in the
value of her premises. He refused to grant an injunction.
The plaintiff appealed on the grounds (1) that the judge was wrong to refuse an
injunction in all the circumstances of the case, and in particular having regard to his
finding that the noise created by the defendants was intolerable and unreasonable
and that there was no evidence that the defendants could abate the nuisance; (2)
that he was wrong to take into account that an injunction might lead to further
litigation; (3) that he was wrong to refuse an injunction on the ground that to do so
would be oppressive; (4) that he was wrong to award damages in lieu of an
injunction; (5) that the awards of 15,000 special damages and 1,000 general
damages were too low; and (6) that damages should have been awarded for future
interference, inconvenience and distress.
The defendants cross-appealed on the grounds (1) that the judge was wrong to find
that the defendants' use of their premises for power *90 boat racing was
unreasonable and/or amounted to a nuisance; (2) that he misdirected himself in
holding that the defendants' use of their premises amounted to a nuisance actionable
at the suit of the plaintiff in view of his findings that she had commenced her
occupation with knowledge of the defendants' activities, that there were other noise-
producing activities in the immediate locality, and that there was considerable public
interest in the defendants' activities; and (3) that the finding that the value of the
plaintiff's premises had diminished by 15,000 was against the weight of the
evidence.
The facts are stated in the judgment.
Michael Kempster Q.C. and Anthony Dinkin for the plaintiff.
J. P. Gorman Q.C. and R. M. Wakerley for the defendants.

The main submissions of counsel are indicated in the judgment.
Cur. adv. vult.
April 30. LAWTON L.J.
read the following judgment of the court. This appeal, which is from a judgment of
Mais J., delivered at Reading on May 24, 1979, is concerned with remedies. not
liability. The defendants, who are sued as representatives of the Cotswold Motor Boat
Racing Club have accepted that in this court they have no grounds for challenging
the judge's finding that some of the club's activities caused a nuisance to the
plaintiff's house, Mallam Waters, near Fairford in Gloucestershire. The judge awarded
her 1,000 damages for the damage she had suffered up to the date of the trial and
15,000 damages under Lord Cairns's Act 1858 for the damage which she is likely to
suffer in the future. He refused an injunction. The plaintiff does not want damages.
She wants to live in her house without having to put up with a great deal of noise
each year from the end of March to the beginning of November, the period during
which the club carries on its racing activities on a nearby man-made lake which the
judge referred to as the club's water. It was a gravel pit, as was the lake alongside
which stands the plaintiff's house.
Both the club's water and Mallam Water are situated about a mile to the east of
Fairford. They are separated from one another by a minor public highway. The club's
water covers an area of 38.31 acres, Mallam Water 12.18 acres. The plaintiff's house
stands on a spit of land about half-way along Mallam Water. Bordering the road,
there is a belt of trees on the west side of Mallam Water. The distance from the
plaintiff's house to the starting line for the races organised by the club is 390 yards.
In the early 1960's the club's water began to be used for motor boat racing; but at
that time only small boats were used. The plaintiff knew what was going on as she
had been brought up in the area and her father owned land to the east of the road
including Mallam Water.
In 1969 the plaintiff, who by this time had become the owner of Mallam Water, her
father having died in 1966, applied for planning *91 permission to build a house
alongside it. She was granted permission and in May 1972 the house was ready for
occupation. When she applied for planning permission the racing activities on the
club's water were not such as to make her think that they would interfere with her
comfort when she came to live in her house; but between 1969 and 1972 there was
a considerable increase in the amount of racing activity on the club's water. This was
organised by the club. The boats used for racing were bigger than they had been in
the 1960's and were making more noise. This tendency continued after 1972 and by
the time proceedings were started in 1977 the club's water had become a well-
known centre for motor-boat racing at club, national and international levels. In
1977, for example, there were races most week-ends between April 3 and October
30. There were national meetings on the club's water on five occasions and an
international meeting on one. Some of these meetings lasted two days. Before each



meeting there would be hours and days of practising. The boats used for the national
and international meetings were large. The largest class of boats were supposed to
have a noise limit of 85 decibels, with an upward tolerance of a further 10 decibels.
Experiments carried out showed that nearly all the large boats took advantage of this
tolerance and the noise made by a number exceeded 100 decibels. We do not
consider it necessary to go into the details of the evidence about noise level as there
was no issue before us about liability. It suffices to record that we heard tape
recordings taken in the plaintiff's house whilst racing, probably with the largest
boats, was going on and we saw and heard a sound film taken and recorded during
racing at a distance of 25 feet from the club's water's edge. We were all of the
opinion that noise caused by the club's activities, which include practising, racing and
water skiing, has interfered to a considerable extent with the plaintiff's use and
enjoyment of her house. To have to live each year, from about 9 a.m. until dusk
each day from the end of March to the beginning of November in the expectation
that at any moment, particularly at week-ends, she would be subjected to
unpleasant noises was a burden which prima facie she ought not to have to bear.
The law provides the remedy of injunction for anyone subjected, as the plaintiff has
been, and expects to be unless the court intervenes, to such a nuisance.
The judge, however, refused an injunction and made an award of damages under
Lord Cairns's Act 1858, to compensate her for future nuisance. In his judgment he
said that the form of injunction asked for by the plaintiff's counsel was too wide, but
he went on as follows:
"As I said, the noise I consider at times is quite intolerable and wholly
unreasonable and I would be prepared to grant an injunction in terms
that the defendants be restrained from using or permitting the use of the
waters in such a way as to be a nuisance or cause a nuisance to the
plaintiff or to pursue their activities in such a way as to interfere with the
plaintiff's reasonable enjoyment and occupation of her premises. But as I
indicated ... if I were *92 to grant such an injunction this would only
lead to further litigation almost certainly, and it does not appear to me to
be the right approach."

He went on to consider a form of injunction which had been requested at a late
stage of the case on behalf of the plaintiff. This would have had the effect of limiting
racing to ten days a year, during one bank holiday and two periods of continuous
days. He thought this would be unreasonable having regard to the history of the
club. He continued as follows:
"The question remains as to whether I should grant an injunction. I have considered
the question most carefully and as to whether damages in this case would meet the
position - and substantial damages. I have come to the conclusion from what I have
heard there is considerable public interest in this club, that the public do attend in
large numbers and that it would be oppressive in all the circumstances to grant an

injunction other than the injunction I have indicated which would merely
cause further litigation."

He then made the awards of damages to which we have referred.
The plaintiff, through Mr. Kempster, has submitted that the judge misdirected
himself. What he did, it was said, was to allow the club to buy itself the right to
cause a substantial and intolerable nuisance. It was no justification to say that this
was for the benefit of that section of the public which was interested in motor-boat
racing. Once the plaintiff had proved that the club had caused a nuisance which
interfered in a substantial and intolerable way with the use and enjoyment of her
house she was entitled to have it stopped by injunction.
Mr. Gorman submitted that this court should not interfere with the exercise of the
judge's discretion. He was entitled to take into account the effect which an injunction
would have on the club and upon those members of the public who enjoyed watching
or taking part in motorboat racing.
Mr. Kempster based his submissions primarily on the decision of this court in Shelfer
v. City of London Electric Lighting Co. [1895] 1 Ch. 287 . The opening paragraph of
the headnote, which correctly summarises the judgment, is as follows:
"Lord Cairns' Act 1858, in conferring upon courts of equity a jurisdiction
to award damages instead of an injunction, has not altered the settled
principles upon which those courts interfered by way of injunction; and in
cases of continuing actionable nuisance the jurisdiction so conferred
ought only to be exercised under very exceptional circumstances."

In a much-quoted passage, Lindley L.J. said, at pp. 315-316:
"... ever since Lord Cairns' Act was passed the Court of Chancery has
repudiated the notion that the legislature intended to turn that court into
a tribunal for legalising wrongful acts; or in other words, the court has
always protested against the notion that it ought to allow *93 a wrong
to continue simply because the wrongdoer is able and willing to pay for
the injury he may inflict. Neither has the circumstance that the
wrongdoer is in some sense a public benefactor (e.g., a gas or water
company or a sewer authority) ever been considered a sufficient reason
for refusing to protect by injunction an individual whose rights are being
persistently infringed."

A. L. Smith L.J., in his judgment, set out what he called a good working rule for the
award of damages in substitution for an injunction. His working rule does not apply

in this case. The injury to the plaintiff's legal rights is not small; it is not capable of
being estimated in terms of money save in the way the judge tried to make an
estimate, namely by fixing a figure for the diminution of the value of the plaintiff's
house because of the prospect of a continuing nuisance - and the figure he fixed
could not be described as small. The principles enunciated in Shelfer's case, which is
binding on us, have been applied time and time again during the past 85 years. The
only case which raises a doubt about the application of the Shelfer principles to all
cases is Miller v. Jackson [1977] Q.B. 966 , a decision of this court. The majority
(Geoffrey Lane and Cumming-Bruce L.JJ., Lord Denning M.R. dissenting) adjudged
that the activities of an old-established cricket club which had been going for over 70
years, had been a nuisance to the plaintiffs by reason of cricket balls landing in their
garden. The question then was whether the plaintiffs should be granted an
injunction. Geoffrey Lane L.J. was of the opinion that one should be granted. Lord
Denning M.R. and Cumming-Bruce L.J. thought otherwise. Lord Denning M.R. said
that the public interest should prevail over the private interest. Cumming-Bruce L.J.
stated that a factor to be taken into account when exercising the judicial discretion
whether to grant an injunction was that the plaintiffs had bought their house
knowing that it was next to the cricket ground. He thought that there were special
circumstances which should inhibit a court of equity from granting the injunction
claimed. Lord Denning M.R.'s statement that the public interest should prevail over
the private interest runs counter to the principles enunciated in Shelfer's case and
does not accord with Cumming-Bruce L.J.'s reason for refusing an injunction. We are
of the opinion that there is nothing in Miller v. Jackson [1977] Q.B. 966 binding on
us, which qualifies what was decided in Shelfer's case. Any decisions before Shelfer's
case (and there were some at first instance, as Mr. Gorman pointed out) which give
support for the proposition that the public interest should prevail over the private
interest must be read subject to the decision in Shelfer's case.
It follows that the plaintiff was entitled to an injunction and that the judge
misdirected himself in law in adjudging that the appropriate remedy for her was an
award of damages under Lord Cairns's Act . But she was only entitled to an
injunction restraining the club from activities which caused a nuisance, and not all of
their activities did. As the judge pointed out, and the plaintiff, by her counsel,
accepted in this court, an injunction in general terms would be unworkable.
*94
Our task has been to decide on a form of order which will protect the plaintiff from
the noise which the judge found to be intolerable but which will not stop the club
from organising activities about which she cannot reasonably complain.
When she decided to build a house alongside Mallam Water she knew that some
motor-boat racing and water skiing was done on the club's water and she thought
that the noise which such activities created was tolerable. She cannot now complain
about that kind of noise provided it does not increase in volume by reason of any
increase in activities. The intolerable noise is mostly caused by the large boats; it is

these which attract the public interest.
Now nearly all of us living in these islands have to put up with a certain amount of
annoyance from our neighbours. Those living in towns may be irritated by their
neighbours' noisy radios or incompetent playing of musical instruments; and they in
turn may be inconvenienced by the noise caused by our guests slamming car doors
and chattering after a late party. Even in the country the lowing of a sick cow or the
early morning crowing of a farmyard cock may interfere with sleep and comfort.
Intervention by injunction is only justified when the irritating noise causes
inconvenience beyond what other occupiers in the neighbourhood can be expected to
bear. The question is whether the neighbour is using his property reasonably, having
regard to the fact that he has a neighbour. The neighbour who is complaining must
remember, too, that the other man can use his property in a reasonable way and
there must be a measure of give and take, live and let live.
Understandably the plaintiff finds intolerable the kind of noise which she has had to
suffer for such long periods in the past; but if she knew that she would only have to
put up with such noise on a few occasions between the end of March and the
beginning of November each year, and she also knew when those occasions were
likely to occur, she could make arrangements to be out of her house at the material
times. We can see no reason, however, why she should have to absent herself from
her house for many days so as to enable the club members and others to make
noises which are a nuisance. We consider it probable that those who are interested in
motor-boat racing are attracted by the international and national events, which tend
to have the larger and noisier boats. Justice will be done, we think, if the club is
allowed to have, each racing season, one international event extending over three
days, the first day being given over to practice and the second and third to racing. In
addition there can be two national events, each of two days but separated from the
international event and from each other by at least four weeks. Finally there can be
three club events, each of one day, separated from the international and national
events and each other by three weeks. Any international or national event not held
can be replaced by a club event of one day. No boats creating a noise of more than
75 decibels are to be used on the club's water at any time other than when there are
events as specified in this judgment. If events are held at week-ends, as they
probably will be, six week-ends, covering a total of ten days, will be available for
motor-boat racing on the club's water. Water skiing, if too many boats are used, can
cause *95 a nuisance by noise. The club is not to allow more than six motorboats to
be used for water skiing at any one time. An injunction will be granted to restrain
motor-boat racing, water skiing and the use of boats creating a noise of more than
75 decibels on the club's water save to the extent and in the circumstances
indicated.
The appeal is allowed.
Representation

Solicitors: Wilmot & Co., Swindon ; John L. Davies, Solihull .
Appeal allowed with costs. Cross-appeal dismissed with costs. Injunction accordingly.
([Reported by LEO PILKINGTON, ESQ., Barrister-at-Law] )