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|Judgments - Hunter and Others v. Canary Wharf Ltd.|
Hunter and Others v. London Docklands Corporation
Lord Goff of Chieveley
Lord Lloyd of Berwick
(ORIGINAL APPELLANTS AND CROSS-RESPONDENTS)
(ORIGINAL RESPONDENTS AND CROSS-APPELLANTS)
There are before your Lordships' House appeals in two actions, which raise fundamental questions relating to the law of private nuisance.
In the first action, Patricia Hunter and others v. Canary Wharf Ltd., the appellants (who are the plaintiffs in the action) claim damages in respect of interference with the television reception at their homes. This, they claim, was caused by the construction of the Canary Wharf Tower, which was built on land developed by the defendants. The tower is nearly 250 metres (about 800 feet) high and over 50 metres square. The source of television transmissions in the area is a BBC transmitter at Crystal Palace; and the appellants claim that, because of its size and the metal in its surface (it has stainless steel cladding and metallised windows), it has caused interference with the television signals from Crystal Palace. The appellants all lived at the material time in an area on the Isle of Dogs affected by the interference, which has been called the shadow area. They claim that the interference began in 1989, during the construction of the tower. A relay transmitter was then built to overcome the problem of interference in the shadow area. This came into operation in April 1991, and it is claimed that the aerials at the appellants' homes were adjusted or replaced between July 1991 and April 1992 to achieve satisfactory reception. The appellants claim damages in respect of the interference with their television reception during the intervening period. Their claim was framed in nuisance and in negligence, though their claim in negligence has since been abandoned.
In the second action, Patricia Hunter and others v. London Docklands Development Corporation, the respondents (the plaintiffs in the action) claim damages in respect of damage caused by what they claim to be excessive amounts of dust created by the construction by the appellants of a road 1,800 metres in length, known as the Limehouse Link Road, which was constructed by the appellants between November 1989 and May 1993. The respondents are residents in the affected area, and they advanced their claims in negligence and nuisance and under the Rule in Rylands v. Fletcher, though this last head of claim has been abandoned.
In both actions, Judge Fox-Andrews Q.C. made orders for the trial of a number of preliminary issues of law. Of the issues of law in the first action, two have survived to reach your Lordships' House, viz. (1) whether interference with television reception is capable of constituting an actionable nuisance, and (2) whether it is necessary to have an interest in property to claim in private nuisance and, if so, what interest in property will satisfy this requirement. In the second action, the only issue to reach your Lordships' House is the latter of these two issues.
The preliminary issues in the two actions were considered by Judge Havery Q.C. at separate hearings. In respect of the two issues in the first action, he held (1) that interference with television reception is capable of constituting an actionable nuisance, but (2) that a right of exclusive possession of land is necessary to entitle a person to sue in private nuisance. He later held that his answer on the second issue was applicable in the case of the same issue in the second action. The Court of Appeal reversed the decision of Judge Havery on both issues, holding (1) that the creation or presence of a building in the line of sight between a television transmitter and other properties is not actionable as an interference with the use and enjoyment of land, but (2) that occupation of property as a home provided a sufficiently substantial link to enable the occupier to sue in private nuisance. The plaintiffs in the first action now appeal to your Lordships' House against the first of these answers, and the defendants in both actions appeal or cross-appeal against the second.
Interference with Television Signals
I turn first to consider the question whether interference with television signals may give rise to an action in private nuisance. This question was first considered over thirty years ago by Buckley J. in Bridlington Relay Ltd. v. Yorkshire Electricity Board  Ch. 436. That case was concerned not with interference caused by the presence of a building, but with electrical interference caused by the activities of the defendant Electricity Board. Buckley J. held that such interference did not constitute a legal nuisance, because it was interference with a purely recreational facility, as opposed to interference with the health or physical comfort or well-being of the plaintiffs. He did not however rule out the possibility that ability to receive television signals free from interference might one day be recognised as "so important a part of an ordinary householder's enjoyment of his property that such interference should be regarded as a legal nuisance" (see p. 447). Certainly the average weekly hours for television viewing in this country, which your Lordships were told were 24 hours per week, show that many people devote much of their leisure time to watching television, even allowing for the fact that it is not clear whether the relevant statistic is based more on the time when television sets are turned on, rather than being actually watched. Certainly it can be asserted with force that for many people television transcends the function of mere entertainment, and in particular that for the aged, the lonely and the bedridden it must provide a great distraction and relief from the circumscribed nature of their lives. That interference with such an amenity might in appropriate circumstances be protected by the law of nuisance has been recognised in Canada, in Nor-Video Services Ltd. v. Ontario Hydro (1978) 84 D.L.R. (3d) 221, 231.
However, as I see the present case, there is a more formidable obstacle to this claim. This is that the complaint rests simply upon the presence of the respondents' building on land in the neighbourhood as causing the relevant interference. The gravamen of the appellants' case is that the respondents, by building the Canary Wharf Tower, interfered with the television signals and so caused interference with the reception on the appellants' television sets; though it should not be overlooked that such interference might be caused by a smaller building and moreover that, since it is no defence that the plaintiff came to the nuisance, the same complaint could result from the simple fact of the presence of the building which caused the interference. In this respect the present case is to be distinguished from the Bridlington Relay case, in which the problem was caused not just by the presence of a neighbouring building but by electrical interference resulting from the defendant Electricity Board's activities.
As a general rule, a man is entitled to build on his own land, though nowadays this right is inevitably subject to our system of planning controls. Moreover, as a general rule, a man's right to build on his land is not restricted by the fact that the presence of the building may of itself interfere with his neighbour's enjoyment of his land. The building may spoil his neighbour's view (see Attorney-General v. Doughty (1752) 2 Ves. Sen. 453, and Fishmongers' Co. v. East India Co. (1752) 1 Dick 163); in the absence of an easement, it may restrict the flow of air onto his neighbour's land (Bland v. Mosely (1587) cited in Aldred's Case (1610) 9 Co.Rep. 57b, 58a, and Chastey v. Ackland  2 Ch. 389); and, again in the absence of an easement, it may take away light from his neighbour's windows (Dalton v. Angus (1881) 6 App.Cas. 740, 794-795 per Lord Selborne L.C., 823, per Lord Blackburn): nevertheless his neighbour generally cannot complain of the presence of the building, though this may seriously detract from the enjoyment of his land. As Lindley L.J. said in Chastey v. Ackland  2 Ch. 389 at p. 402 (a case concerned with interference with the flow of air):
From this it follows that, in the absence of an easement, more is required than the mere presence of a neighbouring building to give rise to an actionable private nuisance. Indeed, for an action in private nuisance to lie in respect of interference with the plaintiff's enjoyment of his land, it will generally arise from something emanating from the defendant's land. Such an emanation may take many forms--noise, dirt, fumes, a noxious smell, vibrations, and suchlike. Occasionally activities on the defendant's land are in themselves so offensive to neighbours as to constitute an actionable nuisance, as in Thompson-Schwab v. Costaki  1 W.L.R. 335, where the sight of prostitutes and their clients entering and leaving neighbouring premises were held to fall into that category. Such cases must however be relatively rare. In one New Zealand case, Bank of New Zealand v. Greenwood  1 N.Z.L.R. 525, the glass roof of a verandah which deflected the sun's rays so that a dazzling glare was thrown on to neighbouring buildings was held, prima facie, to create a nuisance; but it seems that the effect was not merely to reflect the sunlight but to deflect it at such an angle and in such a manner as to cause the dazzling glare, too bright for the human eye to bear, to shine straight into the neighbouring building. One expert witness explained that the verandah glass diffused the light, as if from a multitude of mirrors, into what he described as a high intensity dazzle, which was extremely difficult to look at. On that basis, such a case can be distinguished from one concerned with the mere presence of a building on neighbouring land. At all events the mere fact that a building on the defendant's land gets in the way and so prevents something from reaching the plaintiff's land is generally speaking not enough for this purpose.
It is of some interest that the same conclusion has been reached in German law. I refer in particular to the decision of the Bundesgerichtshof in BGH 21.10.1983, BGHZ 88 p. 344 = NJW 1984 S. 729. The facts of the case were very similar to the present case. The plaintiffs were the owners of their family home. The local municipality erected a nine storey hospital on a neighbouring site, and as a result there was significant interference with television reception in the plaintiffs' house, making it impossible for them to receive certain programmes. The plaintiffs' claim for damages against the municipality failed. Nothing was emitted from the defendants' land, and the so-called "negative Immissionen" (negative effects) which resulted in interference with the plaintiffs' television reception gave rise to no cause of action. It was stated that the court, by the adoption of the settled jurisprudence of the Reichsgericht, had repeatedly affirmed that the so-called "negative adverse effects" caused by interference with access to natural amenities like light and air are not "impermissible" within the meaning of the relevant provisions of the Civil Code. Within the boundaries of his land the owner may in principle deal with his property as he wishes.
That decision demonstrates that English law is not alone in reaching this conclusion. The German principle appears to arise from the fact that the appropriate remedy falls within the law of property, in which competing property rights have to be reconciled with each other. In English law liability falls, for historical reasons, within the law of torts, though the underlying policy considerations appear to be similar.
In the result I find myself to be in agreement on this point with Pill L.J., who delivered the judgment of the Court of Appeal, when he expressed the opinion that no action lay in private nuisance for interference with television caused by the mere presence of a building. That a building may have such an effect has to be accepted. If a large building is proposed in a neighbouring area, it will usually be open to local people to raise the possibility of television interference with the local planning authority at the stage of the application for planning permission. It has, however, to be recognised that the problem may well not be appreciated until after the building is built, when it will be too late for any such representations to be made. Moreover in the present case, in which the Secretary of State had designated the relevant area as an Enterprise Zone with the effect that planning permission was deemed to have been granted for any form of development, no application for permission had to be made. But in any event, with the rapid spread of the availability of cable television in urban areas, interference of this kind is likely to become less and less important; and it should not be forgotten that satellite television is also available. In the present case, the problem was solved in the end by the introduction by the B.B.C. of a new relay station, though not until after a substantial lapse of time.
For these reasons I would dismiss the appeal of the plaintiffs in the first action on this issue.
Right to sue in Private Nuisance
I turn next to the question of the right to sue in private nuisance. In the two cases now under appeal before your Lordships' House, one of which relates to interference with television signals and the other to the generation of dust from the construction of a road, the plaintiffs consist in each case of a substantial group of local people. Moreover they are not restricted to householders who have the exclusive right to possess the places where they live, whether as freeholders or tenants, or even as licensees. They include people with whom householders share their homes, for example as wives or husbands or partners, or as children or other relatives. All of these people are claiming damages in private nuisance, by reason of interference with their television viewing or by reason of excessive dust.
Judge Havery held that the right to sue in private nuisance did not extend to include so wide a class of plaintiffs, but was limited to those with a right to exclusive possession of the relevant property. His decision on this point was however reversed by the Court of Appeal who, in the judgment delivered by Pill L.J., held (see  2 W.L.R. 348, 365):
Against that decision, the defendants in both actions now appeal to your Lordships' House.
The basic position is, in my opinion, most clearly expressed in Professor Newark's classic article on The Boundaries of Nuisance in (1949) 65 L.Q.R. 480, when he stated (at p. 482) that the essence of nuisance was that "it was a tort to land. Or to be more accurate it was a tort directed against the plaintiff's enjoyment of rights over land. . . " The historical origin of the tort lay in the fact that (see p. 481):
Later, when distinguishing cases of personal injury, he stated (at pp. 488-489):
Finally, he proclaimed four theses which should be nailed to the doors of the Law Courts and defended against all comers. The first was that:
There are many authoritative statements which bear out this thesis of Professor Newark. I refer in particular to Sedleigh-Denfield v. O'Callaghan  A.C. 880, 902-903, per Lord Wright; Read v. Lyons  A.C. 156, 183, per Lord Simonds; Tate & Lyle Ltd. v. Greater London Council  2 A.C. 509, 536-537, per Lord Templeman; Fleming, The Law of Torts, 8th ed. (1992), p. 416.