Citation:
Kennaway v Thompson [1980] 3 All ER 329; [1981] QB 88; [1980] 3 WLR 361; [1980] JPL 515
Court:
Court of Appeal, United Kingdom
Judges:
Lawton LJ (leading judgement)
Kennaway v Thompson is a significant English nuisance law case concerning the balance between private rights to enjoyment of land and public interest in recreational activities. The case arises out of a dispute between the claimant, who owned property adjacent to an artificial lake, and the defendant, who organised water-based recreational events on the lake. The legal issues principally revolved around the appropriateness of injunctive relief in nuisance claims involving ongoing activities of public interest, and the circumstances under which damages could be awarded in lieu of an injunction.
Facts of Kennaway v Thompson
In Kennaway v Thompson, the claimant owned land next to an artificial lake. The defendant used this lake to conduct boat racing and water skiing events. After the claimant constructed a house on the property, the defendant significantly increased the frequency and intensity of their activities. Prior to the claimant’s occupation, these activities were less frequent. However, once the claimant moved into the house, races and practice sessions involving loud boats took place most weekends from late spring through to early autumn.
The noise from these activities substantially interfered with the claimant’s enjoyment of her property. She brought an action for private nuisance, specifically citing the loud and continuous noise as an intolerable disturbance.
At first instance, the trial judge found in favour of the claimant but declined to grant an injunction to restrain the defendant’s activities. Instead, the judge awarded damages in lieu of an injunction. The trial judge justified this decision on the basis that the defendant was providing a service in the public interest by organising recreational water sports, and therefore, an injunction would be oppressive.
The claimant appealed this refusal of injunctive relief.
Issues
The principal issue before the Court of Appeal in Kennaway v Thompson was whether the trial judge was correct to refuse an injunction on the ground of public interest. Specifically, the Court was asked to consider:
- Whether the public interest in the defendant’s recreational activities justified denying the claimant an injunction against a continuing private nuisance.
- Whether damages in lieu of an injunction were appropriate in this case, given the ongoing nature of the nuisance.
Kennaway v Thompson Judgement
The Court of Appeal allowed the appeal and held in favour of the claimant. The court found that the trial judge was not entitled to refuse the injunction solely on the ground of public interest. It was emphasised that the public interest in the defendant’s water-based recreational activities did not amount to exceptional circumstances sufficient to justify denial of injunctive relief.
The court reiterated the principle that injunctions are generally the appropriate remedy in cases of continuing nuisance. Damages in lieu of an injunction should only be granted in exceptional cases where equity demands it. Merely providing a public service or engaging in an activity of public interest does not automatically exclude the availability of an injunction.
Legal Reasoning
A key authority cited in Kennaway v Thompson was the Victorian case of Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287. The Shelfer case established a guideline for awarding damages in lieu of an injunction, setting out that:
- Injunctions are the normal remedy for private nuisance.
- Damages in lieu of an injunction should be granted only when the injury to the claimant is small, capable of being adequately compensated by a small monetary sum, and where an injunction would cause disproportionate hardship to the defendant.
In Kennaway v Thompson, the Court of Appeal emphasised that ongoing nuisance generally requires injunctive relief, unless exceptional circumstances exist. The court held that public interest in the defendant’s activities, though a factor to be considered, would not usually amount to such exceptional circumstances.
Further, Lawton LJ provided important guidance on the test for reasonableness in land use where neighbours are affected. He noted that there must be a “measure of give and take, live and let live.” This highlighted the need for balance between competing rights—the claimant’s right to enjoy her property peacefully and the defendant’s right to use his land reasonably.
The court also stressed that injunctive relief need not stop the defendant’s activities completely; it could be tailored to restrict the nuisance, for example, by limiting noisy activities to certain times or days. Such a compromise allows public interest activities to continue in a manner less injurious to neighbours.
Conclusion
The case of Kennaway v Thompson remains a leading authority on the remedies available in private nuisance law, especially where public interest activities are involved. The Court of Appeal held that injunctions should not be denied merely on the basis that the defendant’s activity is of public benefit. Injunctions remain the preferred remedy in ongoing nuisances, with damages awarded only in exceptional cases.
Lawton LJ’s guidance on reasonable use of land—emphasising “give and take” and “live and let live”—provides a practical approach to balancing the rights of neighbours in nuisance disputes.
Ultimately, Kennaway v Thompson underscores the courts’ commitment to protecting individual property rights while recognising the importance of accommodating public interest activities, so long as the latter can be conducted without causing intolerable harm.
