Planning / Nuisance: Choosing the right vehicle

The question of whether a court will grant damages instead of an injunction is a difficult one for legal advisers. It is a matter for the court's discretion and it is not easy to predict how each individual judge will exercise that discretion. This issue arose again in the case of Watson & Ors v Croft Promo-Sport Ltd [2009] EWCA Civ 15, [2009] All ER (D) 197 (Jan). This dispute revolved around the question of whether the defendant's use of a motor racing circuit gave rise to a claim in private nuisance.

As well as giving guidance on the question of when it will be appropriate to grant damages instead of an injunction, the Court of Appeal also considered the relationship between a grant of planning permission and a claim for private nuisance. Sir Andrew Morritt, who gave the only reasoned judgment in the Court of Appeal, confirmed that it is not possible for a planning