Injunctions through the lens of nuisance

Palmer, Robert and Pontin, Benjamin (2019). Injunctions through the lens of nuisance. In: Halson, Roger and Campbell, David eds. Research Handbook on Remedies in Private Law. Research Handbooks in Private and Commercial Law. Edward Elgar, pp. 294–310.

URL: https://www.e-elgar.com/shop/research-handbook-on-...

Abstract

Since their origins in the 14th century, injunctions have, by design, coerced landowners to resolve land disputes that respect their neighbours’ private interests in land, in favour of imposing punitive damages that allow nuisances to continue. The presumption following the Victorian era and the ‘good working rule’ in Shelfer consistently favours injunctions over damages as a rule, despite some perceptions that injunctive relief was harsh on the defendant and the wider public in its interest in the defendant’s use of land. In the face of criticisms, injunctive relief in land disputes has driven technological innovations that have benefited the public interest. A quantitative investigation into the seminal cases and beyond reveals the flexibility of the discretionary remedy that is sympathetic to the essence of private nuisance, that requires reciprocity between landowners and their competing private interests in land. It is against this backdrop that this chapter addresses recent developments in case law and Law Commission’s proposals with respect to light. It is suggested that the Shelfer principles have survived Supreme Court scrutiny in Coventry v Lawrence regardless of uncertainties arising concerning awarding damages in lieu of an injunction. Ostensibly, as previous and subsequent cases have demonstrated, it is unlikely for the presumption to be reversed in favour of damages - being ordinarily an adequate remedy for private nuisance - or for injunctive relief to be decided, in the absence of statutory reform, by anything other than judicial sagacity on case-to-case basis.

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About

  • Item ORO ID
  • 67869
  • Item Type
  • Book Section
  • ISBN
  • 1-78643-127-0, 978-1-78643-127-1
  • Keywords
  • Injunctions; damages in lieu of an injunction; private nuisance; historical development; Second Common Law Procedure Act 1854; Court of Chancery Amendment Act 1858 (Lord Cairn’s Act); Shelfer principles; Coventry v Lawrence; Law Commission; draft Rights to Light (Injunctions) Bill.
  • Academic Unit or School
  • Faculty of Business and Law (FBL) > Law
    Faculty of Business and Law (FBL)
  • Copyright Holders
  • © 2019 The Authors
  • Depositing User
  • Robert Palmer

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