Appeal against injunction in nuisance to stop keeping breeding kennels. The neighbour had begun keeping the kennels, and the neighbour complained to the local Environmental Health office. Abatement notices were served, and the neighbour respondent was granted an interim injunction by the district judge in the County Court. At first instance the judge had then found the noise to have been an actionable nuisance, but also that it had been abated to a limited extent after service of the abatement notices.
Chadwick LJ said that:
‘On the basis of the judge’s finding that the previous nuisance had ceased at the end of May 1996 the injunction which he granted on 7th January 1997 was quia timet. It was an injunction granted, not to restrain anything that the defendants were doing (then or at the commencement of the proceedings on 20th June 1996), but to restrain something which (as the plaintiff alleged) they were threatening or intending to do. Such an injunction should not, ordinarily, be granted unless the plaintiff can show a strong probability that, unless restrained, the defendant will do something which will cause the plaintiff irreparable harm – that is to say, harm which, if it occurs, cannot be reversed or restrained by an immediate interlocutory injunction and cannot be adequately compensated by an award for damages. There will be cases in which the court can be satisfied that, if the defendant does what he is threatening to do, there is so strong a probability of an actionable nuisance that it is proper to restrain the act in advance rather than leave the plaintiff to seek an immediate injunction once the nuisance has commenced. ‘Preventing justice excelleth punishing justice’ — see Graigola Merthyr Co Ltd v Swansea Corporation [1928] Ch 235 at page 242. But, short of that, the court ought not to interfere to restrain a threatened action in circumstances in which it is satisfied that it can do complete justice by appropriate orders made if and when the threat of nuisance materialises into actual nuisance (see Attorney-General v Nottingham Corporation [1904] 1 Ch 673 at page 677) . . In the present case, therefore, I am persuaded that the judge approached the question whether or not to grant a permanent injunction on the wrong basis. He should have asked himself whether there was a strong probability that, unless restrained by injunction, the defendants would act in breach of the Abatement Notice served on 22nd April 1996. That notice itself prohibited the causing of a nuisance. Further he should have asked himself whether, if the defendants did act in contravention of that notice, the damage suffered by the plaintiff would be so grave and irreparable that, notwithstanding the grant of an immediate interlocutory injunction (at that stage) to restrain further occurrence of the acts complained of, a remedy in damages would be inadequate. Had the judge approached the question on that basis, I am satisfied that he could not have reached the conclusion that the grant of a permanent injunction quia timet was appropriate in the circumstances of this case.’
Judges:
Chadwick LJ
Citations:
[1998] EWCA Civ 511
Links:
Statutes:
Environmental Protection Act 1990
Jurisdiction:
England and Wales
Citing:
Cited – Robinson v Kilvert CA 1889
The Covenant for quiet enjoyment is broken in the case of interference by the lessor, or those lawfully claiming under him, not only with the title to, or possession of land, but also with the lawful enjoyment of the premises for the purposes for . .
Cited by:
Cited – Network Rail Infrastructure Ltd v Williams and Another CA 3-Jul-2018
Japanese Knotweed escape is nuisance
The defendant appealed against an order as to its liability in private nuisance for the escape of Japanese Knotweed from its land onto the land of the claimant neighbours. No physical damage to properties had yet been shown, but the reduction in . .
Cited – Vastint Leeds Bv v Persons Unknown ChD 24-Sep-2018
The claimant company sought a final injunction to prevent others occupying its land in Leeds. It was a quia timet injunction anticipating future acts of occupation by caravans, fly-tipping and use of the land for illegal raves.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Nuisance, Litigation Practice
Updated: 12 April 2022; Ref: scu.143989