The High Court was asked whether a mandatory injunction requiring the hotel to permanently reduce the height of the earth on its side of the wall was justified, or whether damages would be more appropriate.

Background:

The appellants operate a hotel and the respondents, Professor Pirie and Professor Stargardt, own the neighbouring property. The dispute relates to a wall separating the adjoining properties which collapsed in part at some point in or around November 2019. Urgent repairs were carried out at a cost of £15,600 plus VAT. However, fearing further structural issues, the respondents commenced a claim in the County Court.

The County Court Judge held that the appellants were guilty of nuisance having allowed a build-up of earth on their side of the wall to such a height that it rendered the wall unstable on the respondents' side. Indeed, the wall was never designed to be a retaining wall. The Judge identified two alternative solutions which could serve as appropriate remedies, namely the garden wall solution (GWS), which involved reducing the earth's height, and the retaining wall solution (RWS), which involved reinforcing the wall to support the extant earth's height. The Judge granted an injunction and ordered the hotel to pay £203,585.99 in damages. The respondents were permitted to rebuild the wall within 12 months after the hotel had lowered the earth along the full length of the wall. They were also ordered to pay Court costs of £13,348.38. 

The hotel appealed as they would have preferred the RWS. The respondent claimed that the Judge did not need to choose one solution, especially since that option subjected it to a mandatory injunction.

Decision: 

The appeal was dismissed, as the County Court Judge acted within her discretion in finding the appellants liable for nuisance. The decision to grant a mandatory injunction was upheld as it was an appropriate remedy for the nuisance caused by the earth build-up, thereby avoiding future infringements. The Court rejected the argument that damages would be an adequate remedy as it was within the Court’s power to exercise its discretion in awarding damages. 

The Judge considered the evidence from quantity surveyors and engineers, concluding that the GWS was more cost-effective and feasible than the RWS. The Court noted that the letter given by the appellant to challenge the GWS as adequate was not provided by an expert and should be disregarded.

Implications:

The case highlights the importance of keeping property boundaries tidy and seeking to resolve matters out of court if one party has a preferred solution. The decision provides guidance on the factors courts will consider when balancing the interests of the property owners and the need to stop the nuisances, including costs, long-term effectiveness and feasibility. It also underscores the need to provide the courts with expert opinions.

It also demonstrates the need to address property nuisances promptly to avoid further structural damage.