MARY ST. JOAN HOWARD KENNAWAY v (Appellant) [1980] EWCA Civ 1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

From: Mr Justice Mais, (Q.B.D.).

[1980] EWCA Civ 1

Venue Royal Courts of Justice,

Between

MARY ST. JOAN HOWARD KENNAWAY

(Appellant)

THOMPSON and AUDREY HOLDEN (on their own behalf and on behalf of all other Members of the Cotswold Motor Boat Racing Club)

Defendants (Respondents)

Before

Lord Justice Lawton

Lord Justice Waller

Sir David Cairns

MR MICHAEL KEMPSTER, Q.C., and MR CHRISTOPHER MASTIN-LEE

(instructed by Messrs. Wilmot & Co., Swindon) appeared on behalf of the Plaintiff (Appellant).

MR J.P. GORMAN, Q.C., and MR R.M. WAKERLEY (instructed by

Messrs. John L. Davies, Solihull) appeared on behalf of the Defendants (Respondents).

Date 30 April 1980

LORD JUSTICE LAWTON:

The

[1]judgment which I am about to read is the judgment of the court. Sir David cannot be here today but he has, of course, seen and approved the text of the judgment. This appeal, which, is from a judgment of Mr Justice Mais, delivered at Reading on 24- May 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' 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 Malkm 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 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 3 April and 30 October. 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' 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 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 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 motor-boat 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 (21 and 22 Viet.c.2?),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"

. At pages 315-316, in a much-quoted passage, Lord Justice Lindley said: -".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 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 sew er authority) ever been considered a sufficient treason for refusing to protect by injunction an individual whose rights are being persistently infringed". Lord Justice A.L. Smith, 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 eighty-five years. The only case which raises a doubt about the application of the Shelfer principles to all cases is Miller & Anr. v. Jackson & Anr.

(1977) QB 966

, a decision of this court. The majority (Lord Justice Geoffrey Lane and Lord Justice Cumming-Bruce), Lord Denning, Master of the Rolls, dissenting, adjudged that the activities of an old-established cricket club which had been going for over seventy 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. Lord Justice Geoffrey Lane was of the opinion that one should be granted. Lord Denning, Master of the Rolls, ••md Lord Justice Cumming-Bruce thought otherwise. The Master of the Rolls said that the public interest should prevail over the private interest. Lord Justice Cumming-Bruce 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 cricke.t ground. He thought that there were special circumstances which should inhibit a court of equity from granting the injunction claimed. The Master of the Rolls' 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 Lord Justice Gumming-Bruce's reason for refusing an injunction. We are of the opinion that there is nothing in Miller v. Jackson,binding on us, which/qualifies what was decided in Shelfer. 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 She If er'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' 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. 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 th * 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 often days, will be available for motor-boat racing on the Club's Water. Water skiing, if too many boats are used, can cause a nuisance by noise. The club is not to allow more than six motor-boats 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. LORD JUSTICE LAWTON: The judgment which I am about to read is the judgment of the court. Sir David cannot be here today but he has, of course, seen and approved the text of the judgment. This appeal, which, is from a judgment of Mr Justice Mais, delivered at Reading on 24- May 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' 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.

[2]Both the Club's Water and Malkm 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.

[3]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.

[4]In 1969 the plaintiff, who by this time had become the owner of Mallam water, her father having died in 1966, applied for planning 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 3 April and 30 October. 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.

[5]The judge, however, refused an injunction and made an award of damages under Lord Cairns' 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 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 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".

[6]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".

[7]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.

[8]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 motor-boat racing.

[9]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 (21 and 22 Viet.c.2?),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".

[11]At pages 315-316, in a much-quoted passage, Lord Justice Lindley said: -".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 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 sew er authority) ever been considered a sufficient treason for refusing to protect by injunction an individual whose rights are being persistently infringed". Lord Justice A.L. Smith, 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 eighty-five years. The only case which raises a doubt about the application of the Shelfer principles to all cases is Miller & Anr. v. Jackson & Anr.

(1977) QB 966

[13]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' 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. 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.

[14]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.

[15]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 th * there must be a measure of "give and take, live and let live".

[16]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 often days, will be available for motor-boat racing on the Club's Water. Water skiing, if too many boats are used, can cause a nuisance by noise. The club is not to allow more than six motor-boats 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.

[17]The appeal is allowed. (Appeal allowed; injunction in the terms given above; judgment for £1,000 for past nuisance to stand; £15,000 under Lord Cairns' Act to go; costs of appeal and cross appeal to be plaintiff's).

MARY ST. JOAN HOWARD KENNAWAY v (Appellant) [1980] EWCA Civ 1

LORD JUSTICE LAWTON:

The

Cited in 7 later judgments