P built a house next to a cricket club, D, and balls kept flying over the fence. P claimed actionable nuisance against D and requested an injunction. CA found for D, denying P’s request for an injunction and granting damages instead, but via three different approaches: Lord Denning MR said that this was not a nuisance and therefore no injunction would be granted. Cumming Bruce LJ said it was a nuisance, but that no injunction should be granted. Lane LJ (Denning) said that there was a nuisance and an injunction should be granted.
Lord Denning MR: Lyrical first paragraph extolling the glories of cricket and emphasises that the public interest should take priority over the private interest, so that the right to play cricket takes precedence over P’s right to sit in his garden undisturbed. The cricket pitch has not previously been a nuisance (quite the opposite it has been “to the great benefit of the whole community and to the injury of none for 70 years”) and it doesn’t become one just because a house is suddenly built there. D ought not to have built a house there (Cumming-Bruce uses this point as justification for not allowing an njunction). Damages for harm caused is fair, but injunctions are discretionary and here should not be applied since it is easier for P to move than for the cricket club to do so.
Lane LJ: The threat of injury to Ps is an unreasonable interference with their enjoyment of their property. It is no defence to say that Ps put themselves in this position by building a house there, as this reasoning was disapproved in Sturges v Bridgman.
It is true that whether the interference is “unreasonable” (so that nuisance can be established) ought to depend on balancing private and public interests) and this does seem unreasonable interference and hence damages ought to be owed, but, for the reason Lord Denning puts forward (relative ease of moving), an injunction ought not be the solution.