Real property, real impact: a game-changer for nuisance

Article by John McGhee KC and Allison Wu, 28th March 2026.

This article was first published by Estates Gazette here.

For lawyers and others involved in the property world, it seems obvious that property rights are special. Not only are the benefit of such rights and the burden of them transmissible to successors in title, but the court will step in to grant injunctive relief to protect them.

If one party breaches an obligation under a commercial contract, the other party will be entitled to an award of damages. It is only exceptionally that the court will grant an injunction requiring the defaulting party to perform its obligations. But the default position is different if the right in question is a property right. If D trespasses onto C’s property or interferes with C’s right of way or builds in breach of its restrictive covenant, we expect the court to grant an injunction to protect C’s right. That, it might be thought, is what makes property rights different from, for example, contractual rights.

The principle that property rights are protected by way of injunctive relief was always subject to an to an exception encapsulated in the rule in Shelfer’s case [1895] 1 Ch 287. In that case, AL Smith LJ said that (1) if the injury to the claimant’s rights is small; (2) it is capable of being estimated in money; (3) it is one which can be adequately compensated by a small money payment; and (4) it would be oppressive to grant an injunction, then an injunction should be refused. But this exception applied, or at least was interpreted as applying, only in very exceptional circumstances.

Furthermore, it was never regarded as qualifying the principle that specific performance (that is mandatory injunctive relief) would be granted to enforce a contract for the sale or disposition of an interest in land. The courts were also reluctant, at least at first, to apply it to applications for injunctive relief to prevent breach of negative contractual covenants.

There was nothing therefore within the rule in Shelfer’s case which cast doubt on the particular quality of property rights of being protected by injunctive relief rather than, as for non-property rights, of giving rise merely to an award of damages.

Enter, the Supreme Court

All this changed in 2024 with the decision of the Supreme Court in Lawrence and another v Coventry (t/a RDC Promotions) and others [2014] UKSC 13; [2014] 1 EGLR 147, commonly known as Coventry v Lawrence.

The claimants claimed that the noise produced by the neighbouring speedway and stock car racing track and stadium was unacceptable and amounted to a nuisance. The judge accepted the claimants’ case and awarded them an injunction. The Court of Appeal reversed this, holding that following the grant of planning permission for this activity there had been a change in the character of the area such that the noise generated was an established part of the locality. The Supreme Court allowed an appeal by the claimants and held that the defendants could not rely on the grant of planning permission permitting the noise in question as a defence to the claim in nuisance.

There is much that is of interest in the judgments of the Supreme Court on the question of whether an action by a neighbour amounts to a nuisance. But the significance of the case lies not principally in that, but in what was said by Lord Neuberger as to the circumstances in which the court will refuse injunctive relief and grant damages in lieu thereof.

Following a comprehensive review of the authorities he said that, subject only to the technical point that the legal burden of proof rested on the defendant to show why an injunction should not be granted, “I do not think there should be any inclination either way…; the outcome should depend on all the evidence and arguments”.

As to the four tests comprising the rule in Shelfer’s case he said that, although normally it would be right to refuse an injunction if those tests were satisfied, the fact that those tests were not all satisfied did not mean an injunction should be granted. He said the public interest and the grant of planning permission were, among other things, relevant factors to consider. A broad range of considerations were thus to be taken into account when determining whether an injunction is the appropriate remedy in the circumstances.

The impact of the decision

It is clear from his judgment that these dicta were intended to apply not just to cases of noise nuisance but to all cases of nuisance, including for example interferences with rights of way and rights of light. It is also reasonably clear from the fact that Lord Neuberger referred with approval to the Court of Appeal case of Jaggard v Sawyer [1994] EWCA Civ 1; [1995] 1 EGLR 146, in which an injunction was refused and damages in lieu awarded in a case of trespass and breach of a restrictive covenant, that he intended the same principles to apply to these cases, too.

After some initial reluctance by the courts to do so, the principles set out in Coventry v Lawrence are now applied generally for interference with property – with one exception. The exception is cases for mandatory injunctive relief in the form of specific performance for contracts for the sale or disposition of interests in land, in which Coventry v Lawrence has not been applied. It seems that in that area at least, property rights continue to be treated as special, no doubt because otherwise it would cast doubt on the reliability of conveyancing transactions.

But in cases of trespass, interference with easements, enforcement of freehold restrictive covenants and, it is thought, interference with profits and the enforcement of leasehold covenants, the principles of Coventry v Lawrence supplant those in Shelfer’s case. The implications of this cannot be too widely stated. Until Coventry v Lawrence, property rights were protected by way of an injunction as a matter of course. Since that case, with the exception of the enforcement of contracts for the sale or disposition of land interests, they may or may not be so protected depending on all the circumstances as to which “there should be no inclination either way”.

A property right continues to be defined by its ability to bind and benefit successors in title, but it is no longer to be defined by the relief which is granted to protect it. Where does this leave those of us who have to advise clients whether or not they will be able to enforce their property right or will need to be content for an order for damages? Lord Neuberger said that “it is appropriate to give as much guidance as possible so as to ensure that, while the discretion is not fettered, its manner of exercise is as predictable as possible”. But as Lord Leggatt noted in Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4; [2023] EGLR 14, “there is little in the way of such guidance to be gleaned from his judgment”.

Unless and until further guidance is given, the best we have to date is Fancourt J’s useful summary in his recent rights of light decision in Cooper v Ludgate House [2025] EWHC 1724 (Ch); [2025] EGLR – a case, perhaps, for another day.