Nuisance: ReliefGolf balls landing on claimant's land - claimant farmer bringing action in nuisance against owner and operator of golf range - judge finding nuisance established - judge finding whole of claimant's land rendered unusable - judge ordering injunctive relief and damages - whether judge erred - appeal allowedGoode v Owen and another: Court of Appeal (Lords Justice Pill, Tuckey, Jonathan Parker) 20 December 2001The claimant was a cattle and sheep farmer.

His neighbour, the first defendant, owned a golf range, which was operated by the second defendant.The claimant brought an action in nuisance against the defendants.

His complaint was that a large number of golf balls were falling onto his land.

The claimant contended that he mowed the land and sold the hay to stable owners.

The area of land in question, the 'contaminated land', amounted to approximately 2.5 acres.

The judge found that approximately 1,000 golf balls per annum were 'escaping' onto the claimant's land and that established a nuisance in law.

He went on to find that the presence of the golf balls on the contaminated land, rendered the whole of the claimant's 18 acres of land unusable for mowing and for the sale of hay.

Consequently, the judge ordered that the defendants erect a fence to the south of the golf range, to abate the nuisance.

The order had to be made conditional upon planning permission being obtained for the erection of the fence.

The judge further ordered that the defendant pay the claimant damages for the loss of hay and silage.

The defendants appealed.

The defendants submitted, among other things, that the judge should have found that the 'escape' of the golf balls onto the land did not substantially interfere with the use of the land, and that injunctive relief should not have been granted.

Second, in relation to the issue of damages, the defendants contended that the claimant could, in any event, use the hay taken from the contaminated land for his own winter feed.Held: The appeal was allowed.It was unacceptable to say that the entire 18 acres of the claimant's land was unmowable by machinery and unusable.

There had been a nuisance, however, it was confined to the contaminated areas of land.

The effect of the injunctive relief that the judge had ordered, namely, that the defendants erect and maintain a fence to the south of the golf range, would only have an impact upon the largest area of the contaminated land, approximately 1.5 acres.

In the circumstances, such injunctive relief could not be justified and that part of the order was to be set aside.

The defendants' second contention failed.

It was not reasonable to expect the claimant to have used the hay from the contaminated land for his winter feed.

Accordingly, the appropriate relief for the claimant was in damages.

That matter was to be remitted to the county court.John McGhee (instructed by Eversheds, of Birmingham) represented the defendants; Soofi Din (instructed by Bell Lax Litigation, of Sutton Coldfield) appeared for the claimant.