The courts can assist homeowners whose properties are at risk of damage because of activities on nearby land. Recently, the High Court upheld an injunction requiring the operators of a hotel to reduce a build-up of earth on their side of a wall between it and a neighbouring residential property.

Urgent repairs had been carried out after a section of the wall collapsed. The owners of the neighbouring property feared that further problems would arise and brought a claim against the hotel operators. A judge found that the hotel operators had been guilty of nuisance in allowing earth to build up on their side of the wall to a height that rendered the wall unstable.

The judge identified two possible solutions. The earth could be removed temporarily, so that the wall could be substantially rebuilt and reinforced to act as a retaining wall. Alternatively, the earth could be removed permanently and kept at a level of no more than one metre above the base of the wall, alleviating pressure on the wall so that only limited reinforcement would be required. The judge preferred the second solution and issued an injunction to that effect.

Appealing against that decision, the hotel operators contended that the injunction was unnecessary because damages were an adequate remedy for the homeowners, and that it was unduly onerous. They also argued that the judge had been wrong to conclude that the first solution would be much more expensive than the second.

The Court noted that it was consistent with authority that, having found there was a nuisance, the judge was entitled to say that an injunction was needed to prevent it continuing. In the Court’s view, the hotel operators’ objection was really about the requirement to reduce the build-up of earth permanently; however, the form of the injunction was a matter for the judge.

With regard to whether the judge had been wrong to conclude that the first solution would be much more expensive, the Court found that the judge had been entitled to rely on evidence provided by a quantity surveyor on the homeowners’ behalf as to the costs of the two solutions. The hotel operators had only provided an estimate of the cost of the first solution, and this had assumed the work would be carried out from the hotel side rather than the homeowners’ side. The only direct and reliable comparison available to the judge, therefore, was between the quantity surveyor’s figures.

Dismissing the appeal, the Court observed that the parties were still trying to agree a mutually acceptable solution, and that it would not wish to discourage this.