Hedley

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Nuisance, dust and the right to good TV reception : Canary Wharf in the House of Lords

Steve Hedley

Copyright © 1997 Steve Hedley.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

On 24 April 1997, in Hunter and Others v Canary Wharf Ltd. [1997] 2 All ER 426, the House of Lords considered the judgment of the Court of Appeal, agreeing that no action lies on the facts for interference with TV transmissions - though a majority at least echo the court of appeal in suggesting that there might be other circumstances where such an action might lie. However, on locus standi to sue in nuisance they have taken a distinctly narrower approach, re-asserting the Malone v Laskey rule that only those with proprietary or possessory title to land have title to sue, and overruling Khorasandjian v Bush. Control of conduct such as that of the defendant in that case is now almost entirely left up to the new anti-stalking legislation.

The facts and the litigation

Extensive litigation has ensued from the construction of the Canary Wharf Tower in East London, and the surrounding roadworks. A large structure, about 250m high and 50m square and with stainless steel cladding, it was part of an area designated as an enterprise zone, and hence not subject to normal planning controls. It cast a significant 'shadow', affecting local TV reception. The roadworks produced large amounts of dust, which similarly annoyed the local citizenry. Some 690 plaintiffs sued over TV interference, claiming compensation for loss of amenity and wasted licence fees; some 513 plaintiffs sued over the dust, alleging inconvenience and property damage of various sorts. Some of these plaintiffs were the owners or had possessory title of premises affected, others merely lived in affected premises. The distinction between those who 'have possessory title' over land and those who merely happen to be there is a notoriously difficult one, but the usual approach is to identify a single person who can be said to be in legal control of the premises. Joint possession is certainly possible, but in the absence of some evidence of divided ownership (such as two names on the title deeds, or contribution to mortgage payments) it is unlikely to be found as a fact. Certainly in the common case of a family including children, it is most unlikely that all those who live in the premises will be regarded as 'possessing' it in law. It was therefore of considerable importance to decide whether action could be brought by all who lived in the affected premises, or only by those in possession.

Various preliminary issues were taken, including the questions of whether either set of allegations disclosed a valid cause of action in nuisance or negligence, and if so, which plaintiffs had title to sue. The Court of Appeal ([1996] 1 All ER 482) held, firstly, that interference with TV reception was not actionable in nuisance, at least not when it was caused merely by the erection of a tall building in the line of sight between the transmitter and the TV viewer; that the deposit of dust was actionable in any case where significant physical damage to property was shown; and that title to sue in nuisance depended on the demonstration of a 'substantial link' between the plaintiff and the premises concerned, but that residence in the premises as one's home was quite sufficient for that purpose, and a plaintiff did not have to go further and demonstrate a proprietary or possessory interest in the premises. The first and the third rulings have now been appealed to the house of lords.

The legal background

Private nuisance is an ancient tort, which has been traced back to the 13th century. Generous in its ambit, its main thrust has always been to protect the owner of land from interferences with enjoyment of the land which fall short of trespass or dispossession. It fitted well into a legal system where the absolute rights of the head of the household, and in particular his property rights, were supreme in law; and it looks increasingly strange and marginal as rights of property are restricted, and as the duties of whichever member of the household happens to be owner become at least as prominent as their rights. Rights which were in earlier centuries seen as part and parcel of property ownership are increasingly either being called into question, or regarded as the entitlement of all, property owner or not. A key case is Malone v Laskey [1907] 2 KB 141, where the plaintiff was injured in her home when vibrations caused a shelf to collapse on her. Could she sue her neighbour, who was responsible for the vibrations ? The court of appeal held not : she was not, after all, in possession of the place where she lived, but merely a licensee of her husband. So the right to safety in the home was seen as part of the property right in the home - and accordingly denied to those with no property right, however close their connection with the premises. The idea that everyone was entitled to a safe living environment had not then gained full acceptance.

That sort of reasoning is not acceptable any longer, and Malone does not survive on its facts, having been overruled in AC Billings & Sons v Riden [1958] AC 240. But Billings was a negligence case, not a nuisance case, and there is a serious question of what, if anything, was wrong with the reasoning in Malone insofar as it relates to nuisance. Should the court have said that the wife had some kind of a property right which the tort of nuisance would recognise, whether flowing from marriage, or from occupation, or otherwise ? Or should we say that property rights have nothing to do with the matter, that she was injured in her body, and not as property owner ? Either path is logically open. A majority at least of the lords in Canary Wharf appear now to have put their weight behind the latter solution. Talk of 'modernising' the tort of nuisance is, on this view, somewhat misplaced. New torts are needed to protect the rights of non-owners, but extending the tort of nuisance is not the answer. The tort is unreformable, in the sense that the changes necessary to make it give adequate protection to all those who occupy premises would turn it into something else entirely.

Nuisance: Protection of property and nothing else

The majority took a deliberately narrow view of the tort of nuisance, resisting all temptations to use nuisance for any broader function. They asserted the unity of the tort, and that it was concerned only with property values. Matters which made life less pleasant for those living in it were relevant only insofar as they reduced the value of the property. Analogies with damages for loss of amenity in personal injury cases were inapt; and it did not matter how many peoples' amenities were disturbed in any one case, for it was the effect on property values that mattered, rather than the discomfort of the property owners. Damages for lost amenities in relation to a single piece of property fall to be assessed without asking how many people suffered inconvenience in consequence.

Does it follow that nuisance law can never be used to assert a claim for personal injury ? It certainly makes the tort a great deal neater if this is so. But so to confine it is certainly to take a narrower view than has been taken in the past. Indeed, it knocks the stuffing out of Malone, which assumes that action may in principle be brought for personal injury, but then limits those who can sue. The lords did not speak in one voice on this point. Lords Lloyd and Hoffmann stated unequivocally that action never lay in nuisance for a personal injury. Lord Hope may have meant the same, though his brief comments on the assessment of damages do not, in the event, say this. And Lord Goff left the point open, noting merely that 'there is now developing a school of thought' which would exclude such claims, without saying whether he was a student of that school.

However, the four Lords constituting the majority were unanimous that the right to sue must be confined to those who could demonstrate a proprietary or possessory interest. It followed that the decision of the court of appeal in Khorasandjian v Bush [1993] QB 727 was insupportable, at least on the grounds there given. In that case the plaintiff had been subjected to an unwelcome degree of attention from the defendant, who had refused to accept that their earlier relationship was over. The trial judge had sought to enjoin the defendant not only from acts of violence, but also from 'harassment' of the plaintiff, such as regularly phoning her up at home. This a majority of the Court of Appeal consented to, basing themselves partly on the tort of nuisance, even though the Malone approach would have ruled out the plaintiff's claim - she was not in possession, but lived with her parents. The Lords have now firmly ruled that this is unacceptable. Khorasandjian is 'based upon a fundamental mistake' (Lord Hoffmann), and to accept it 'would be to change the whole basis of the cause of action' (Lord Lloyd). To extend the range of plaintiffs in this way would make orderly settlement of disputes very difficult (Lord Goff). The majority made it clear that there was no question of Ms Khorasandjian being left without a remedy. 'I would be uneasy if it were not possible by some other means to provide such a plaintiff with a remedy. But the solution to her case ought not to have been found in the tort of nuisance ...' (Lord Hope). Lord Goff referred explicitly to the Protection from Harassment Act 1997, which creates a crime and tort of harassment. And Lord Hoffmann hinted that a common law solution might be available. Deliberate personal harm to a plaintiff was tortious under the rule in Wilkinson v Downton [1897] 2 QB 57, and while that rule had sometimes been thought to be restricted to cases where the plaintiff actually suffers a psychiatric illness, 'I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence ...'.(1)

All of this was disputed by Lord Cooke. The tort of nuisance is antique, he implied, but not past reform. It would be folly to reduce the whole of nuisance law to a single pattern : the truth is that material physical damage is judged by different rules from personal discomfort, and there was no reason why there should not be different rules on the title to sue. The Malone approach is out of touch with modern ideas on marriage, just as indeed to deny the plaintiff in Khorasandjian the right to sue is out of touch with modern views on the position of children. He was not entirely sure where he would draw the line, though '[o]ccupation of the property as a home is, to me, an acceptable criterion'. Recognising that the tort has grown far beyond its traditional bounds of protecting only interests in real property, Lord Cooke wished to re-orient the tort, and to recognise that plaintiffs have a right to a home life quite distinct from any property rights they may have - as his reference to Human Rights treaties emphasised. The rather arcane legal disputes which might occur if the family were to collapse in acrimony raise very different issues from those in the Canary Wharf case, and it is understandable that Lord Cooke wished to make them irrelevant to it. Yet the result of the majority view is that these matters may well be relevant : if a wife complains of disturbance to her enjoyment of the family home, the case may indeed turn on whether she could assert a property right against her husband - even though the husband may not be a party to the nuisance.

The right to watch TV v The right to build tall buildings

There was unanimity that, whoever had title to sue, no tort was committed by the interference with TV reception. However, on close examination, subtle differences of opinion emerge, which might give rise to difficulties in later cases. Only a minority (Lords Lloyd and Hope) appeared to deny that the tort of nuisance could ever be used to protect the right to good TV reception, so that no action could ever lie for interference with TV transmission. Both drew the analogy with claims not to have one's view obstructed, which traditionally has been held not to give rise to an action in nuisance. Neither squarely faced the point that transmissions might be interfered with by means other than those in Canary Wharf, such as the activities of the electricity sub-station in Bridlington Relay Ltd v Yorkshire Electricity Board [1965] Ch 436; there are conflicting indications as to what they would have thought in such a case.

Lords Goff and Hoffmann, by contrast, were keen to insist that action could in principle lie for interference with TV transmissions, and hinted heavily that the denial of such a claim in Bridlington Relay was wrong. Lord Goff opined that 'it can be asserted with force that for many people television transcends the function of mere entertainment', and accordingly deserves the protection of the law; indeed, in Bridlington itself Buckley J had conceded that TV might one day be regarded as important enough to merit legal protection, a day which Lords Goff and Hoffmann thought had now arrived. But neither felt that assisted the plaintiffs in Canary Wharf, where the only complaint against the defendants was that they had built their tower to an unusual height. To recognise liability here exposed the defendants to a vast range of potential actions, and would constitute a major inroad into the general principle that one may build on one's land as one wishes. Lord Goff thought it would be particularly anomalous to impose liability given that it would have been possible to receive TV programmes by cable or satellite dish without problems. This is, with respect, a weak ground, for those options are not costless, and Goff's point might in principle apply to any interference with TV. It seems odd to insist that the right to good TV reception may be actionable in some circumstances, but cannot be actionable here because there was more than one way in which the plaintiff might receive the signal. This will almost always be so.

Lords Goff and Hoffmann also referred to planning controls, though their impact was equivocal here. There was no suggestion of any departure from the orthodox position, that planning permission is no defence to an action for nuisance, though it may sometimes be the foundation of a change in the character of a neighbourhood, as a consequence of which the rights of those who insist on its earlier character may find their legal rights reduced.(2) Nonetheless, the existence of planning controls appears to have been a factor inclining them away from common law control of buildings affecting TV reception. This is a slightly awkward point, as they seem to acknowledge. As Lord Hoffmann narrated, ordinary planning controls had been side-stepped here by the designation of the area as an enterprise zone. This was a poor advertisement for planning control as an example of democratic control over land use, and a weak reason for the exclusion of private law remedies. And as Lord Goff noted, it is rather hard to tell before the event how much of an impact on the electromagnetic spectrum a particular design of building will have. "The plaintiffs may well feel that their personal convenience was temporarily sacrificed to the national interest. But this is not a good enough reason for changing the principles of the law of nuisance which apply throughout the country" (Lord Hoffmann).

The narrowest ground for relieving the defendant from liability was taken by Lord Cooke, who noted simply that the design of the tower was not unreasonable given its height, and that building a building higher than one's neighbours care for is not a nuisance. He was clear that action could lie for interference with TV transmissions, if normal criteria for nuisance were satisfied. He would have had no difficulty in allowing an action if the developers had set out to injure the interests of others, or if they had built higher than the enterprise zone rules allowed. He was caustic about the analogy drawn with claims for a right to a particular view, ridiculing the idea that gazing out of the window and gazing into a TV screen attract similar legal principles: '[i]t may be suspected that only a lawyer would think of such a suggestion'.

So the result on these facts is unequivocal, but there will be room for argument in later cases.

Conclusion

It is unfortunate that this case fell for resolution so soon after the enactment of the Protection against Harassment Act 1997, and much too early for its impact to be assessed; unfortunate also that the question of who could sue in nuisance arose in the context of an alleged right to good TV reception which the Lords did not think existed at all, or at least did not consider that this defendant had infringed. The result is that a particular direction in which the common law might have developed - towards extending the tort of nuisance to protect personal rights and privileges, not simply proprietary ones - has been closed off without any very full discussion of whether it matters, or what functions an extended tort might have performed. It is, of course, rather more important which rights we make available than whether we call them 'nuisance' or not; but it is to be hoped that the courts will in future show more flexibility in relation to other overlapping torts in the area of personal remedies, to make up for the narrowness of the role now accorded to private nuisance.

1. For discussion of remedies in that area generally, see Allen, 'Look Who'stalking: Seeking a Solution to the Problem of Stalking' [1996] 4 Web JCLI
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