If an owner’s enjoyment of his land is interfered with, should court grant injunction to prevent the interference continuing?
By Cassandra Cartwright
This article follows on from the previous entry in this month’s Property Update because it arises out of the same case, the Supreme Court’s decision in Coventry and others v Lawrence and another. Having decided that there could be such a thing as an easement to emit noise, and that the planning history of the ‘dominant’ site could be taken into account, the Supreme Court went on to consider what the remedy to the complainants should be. Would an injunction be ordered, requiring the speedway stadium and the motocross track to be used in a different, more limited way, or would a payment of damages to Ms Lawrence and Mr Shields suffice instead?
As mentioned in the first article, the Supreme Court held that no right to make noise had actually arisen by prescription in this case because the unlawful element of the use had not been going on for the necessary 20-year period. Therefore, there was an actionable nuisance. How should this be dealt with in terms of compensating the owners for the nuisance they had suffered, and would potentially continue to suffer?
Where a property right is being interfered with, the starting position was — and remains, despite this judgment — that the claimant is entitled to an injunction. It is not for the claimant to show why they should get an injunction; the defendant bears the burden of showing why the claimant should not get one…
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