Hawkwell House Hotel Ltd and another v Pirie and another

Nuisance – Remedy – Injunction – Damages – Build-up of earth occurring against appellant’s side of wall separating land from respondent neighbours – Respondents seeking injunction and damages – County court ordering appellants to remove earth permanently and awarding damages to respondents – Appellants appealing – Whether appropriate remedy being matter for trial judge – Whether damages alone adequate remedy – Appeal dismissed The appellants operated a hotel and the respondents owned the neighbouring property. A dispute arose concerning a wall which separated them. In about November 2019, an initial section of the wall collapsed. Urgent repairs were carried out at a cost of £15,600 plus VAT, but fearing further problems, the respondents commenced a claim in the county court. After a three-day trial, the court held that the appellants were guilty of nuisance because they had allowed a build-up of earth on their side of the wall, to a height which rendered the wall unstable on the respondents’ side. The judge found that the wall was not designed as a retaining wall, and so the build-up of earth made the wall unsafe. The appellants did not challenge that finding. The judge ordered that the earth on the hotel side of the wall should be removed (battered back) permanently (the garden wall solution) and granted permission to the respondents to carry out the necessary works which involved the grant of an injunction against the appellants requiring them to batter back the earth on the hotel side and maintain it at a reduced height; an award of damages to the respondents, corresponding to the costs of them implementing the garden wall solution; and an award of costs to the respondents. The appellants appealed against the judge’s decision on the appropriate remedy contending that damages would be an adequate remedy. Held: The appeal was dismissed. (1) Where a claimant had established that the defendant’s activities constituted a nuisance, prima facie the remedy to which they were entitled (in addition to damages for past nuisance) was an injunction to restrain the defendant from committing such nuisance in the future; the precise form of any injunction would depend on the facts of the particular case. The court’s power to award damages in lieu of an injunction involved a classic exercise of discretion: Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] 3 EGLR 71; [2014] EGILR 47; [2014] AC 822 applied. In the present case, the judge was fully entitled to hold that an injunction was justified; and insofar as she was asked to make an award of damages instead, she was entitled to refuse to do so in the exercise of her discretion.  (2) Consistent with authority, once the judge had determined there was a nuisance, she was entitled to say that an injunction was needed to stop it continuing.  The appellants’ objection was really about the mandatory aspect of the order which required them not only to dig out the earth on the hotel side to a level of no more than one metre from the base of the wall, but also to keep it there, and sloping back (upwards towards the hotel at the top of the slope) at an angle of 45 degrees. Although the form of injunction was a matter for the judge, determining the form of injunction required to address the particular nuisance in question was a fact sensitive inquiry which the judge in the present case had conducted: she balanced the relevant factors and sought to assess, on the evidence before her, how best to respond. All that was required was that the judge gave sufficient reasons for the decision made; and her reasons were entirely adequate given the context. On the face of it, there was nothing wrong with that as an exercise of judicial discretion. And the injunction ordered was not unduly onerous or uncertain as to its effects on third parties.  (3) The question whether an injunction imposed obligations which were unduly onerous was again a matter going to the proper exercise of discretion. Here, the judge was balancing competing interests: on the one hand, the hotel’s interest in having free use of the land on its side of the wall; and on the other hand, the respondents’ interest in bringing to an end the ongoing effects of the appellants’ nuisance. The question of onerousness had to be looked at in that context, and the fact was that over time the earth on the hotel side of the wall had been permitted to build up to an unnatural and dangerous level. That was the nature of the nuisance the judge found to exist, and it had already caused a section of wall to collapse. There was nothing unduly onerous in requiring the appellants, once the earth on their side of the wall had been reduced to a more acceptable level, to refrain from causing any further build-up in a manner likely to cause yet another nuisance.  (4) It was well established that an exercise of discretion might be challenged where the decision maker had taken into account some matter that should not have been taken into account.  However, the judge was entitled to conclude on the evidence that the garden wall solution would likely cost less, not more, than the alternative retaining wall solution (under which the earth would be removed and then reinstated (backfilled) to its original height, with the wall being substantially reinforced and reconstructed to act specifically as a retaining wall) and entitled to conclude that any difficulties could be overcome. The appellants’ expert had estimated the costs of the garden wall at £125,000. The respondents’ expert estimated £152,700 and £205,700 for the retaining wall. The judge was justified in taking into account the perceived higher cost of the retaining wall solution, even if those costs would ultimately be borne by the appellants, who were saying the retaining wall solution was the one they wanted, and which would also have required a mandatory injunction. (5) The order was a personal one, directed to the appellants. It did not, by its terms, directly bind anyone else (although third parties who assisted in a breach by the appellants might be held in contempt). What problems that might or might not cause in respect of any future sale of the hotel was not addressed in any detail in submissions, and such embryonic concerns did not provide a basis for setting aside the judge’s order, all other things being equal. On the basis of the parties’ representations, the works anticipated to implement the garden wall solution were achievable in a manner compatible with the injunction granted. Benjamin Faulkner (instructed by Memery Crystal) appeared for the appellants; the respondents appeared in person. Eileen O’Grady, barrister Click here to read a transcript of Hawkwell House Hotel Ltd and another v Pirie and another