Hunter v Canary Wharf Ltd

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD GOFF OF CHIEVELEY,LORD LLOYD OF BERWICK,LORD HOFFMANN,LORD COOKE OF THORNDON,LORD HOPE OF CRAIGHEAD
Judgment Date24 Apr 1997
Judgment citation (vLex)[1997] UKHL J0424-2

[1997] UKHL J0424-2

HOUSE OF LORDS

Lord Goff of Chieveley

Lord Lloyd of Berwick

Lord Hoffmann

Lord Cooke of Thorndon

Lord Hope of Craighead

Hunter

and Others (A.P.)

(Original Appellants and Cross-Respondents)
and
Canary Wharf Limited
(Original Respondents and Cross-Appellants)
Hunter

and Others

(Respondents)
and
London Docklands Development Corporation
(Appellants)
LORD GOFF OF CHIEVELEY

My Lords,

1

There are before your Lordships' House appeals in two actions, which raise fundamental questions relating to the law of private nuisance.

2

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.

3

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.

4

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.

5

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.

6

Interference with Television Signals

7

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 [1965] 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.

8

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.

9

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 [1895] 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 [1895] 2 Ch. 389 at p. 402 (a case concerned with interference with the flow of air):

"… speaking generally, apart from long enjoyment, or some grant or agreement, no one has a right to prevent his neighbour from building on his own land, although the consequence may be to diminish or alter the flow of air over it on to land adjoining. So to diminish a flow of air is not actionable as a nuisance."

10

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 [1956] 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 [1984] 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...

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