Business Environment Group was the leasehold owner of a large office block known as 1 Olympic Way, Wembley. The building was let as government offices and also as fully serviced offices, to which there is access 24 hours a day, 7 days a week. BEG retained occupation of the common parts and of the car park. Wendy Fair (Wembley) Ltd operated a Sunday street market from Olympic Way.
BEG argued that Wendy Fair’s market ostensibly interfered with its passage along Olympic Way for the purposes of visiting the office block. BEG provided evidence from a number of people as to their difficulties in obtaining access to the office block when the market was ongoing. In addition, skip suppliers had advised BEG that they were not prepared to make deliveries of skips on a Sunday when the market was in operation because of the difficulties experienced and the possible dangers that resulted from the need to drive through a narrow crowded market.
BEG’s case was that the operation of the market had the practical effect of substantially interfering with its right to use the highway. The market had unreasonably disrupted BEG’s business and, in particular, its need or desire to use the weekend to do maintenance and refurbishment work on its building.
Wendy Fair argued that the mere fact of obstruction did not turn the obstruction into a nuisance and the reasonableness of the conduct complained of was relevant. They accepted that BEG’s right to use Olympic Way had been rendered less convenient but submitted that BEG had not alleged, and not at trial been able to prove, that the degree of interference with BEG’s right to use the highway had been so unreasonable as to amount to a public nuisance.
Was the inconvenience BEG suffered sufficient to amount to a public nuisance so than an interim injunction requiring Wendy Fair to maintain a clear corridor along the road could be granted?
The interim injunction was granted. Wendy Fair’s use of Olympic Way was lawful as it had been licensed by the local authority. Therefore, its use of Olympic Way would only be a public nuisance if, having regard to BEG’s competing rights, their use could be said to be unreasonable. The judge held that given the extent to which BEG’s rights were interfered with, which seemed to be considerable, and the relatively small steps which needed to be taken in order to ensure that those rights were preserved, he believed that BEG had a reasonably good prospect at trial of establishing unreasonableness in relation to the market users. As such, BEG had a real prospect of success in its action and had a good arguable case for the purposes of supporting its application for an interlocutory injunction. Wendy Fair was therefore asked to maintain a clear corridor along Olympic Way to allow BEG to access its site.
*Full case details
27 June 2005, High Court of Justice, Chancery Division, Justice Hart  EWHC 1385 (CH)
Contact Fenwick Elliott on 020 7421 1986 or NGould@fenwickelliott.co.uk
Wendy Fair’s appeal against this decision was unsuccessful. Building sites frequently have access to the site through a public highway that is shared with other users. Other users of an access road into a building site must be considered when the road is under heavy traffic from the site, particularly if the traffic is blocking other people’s use of the highway.