Hunter v London Docklands Development Corporation
| Jurisdiction | England & Wales |
| Judge | Pill L JJ,Neill,Waite |
| Judgment Date | 12 October 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J1012-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBENF 94/1338/B |
| Date | 12 October 1995 |
[1995] EWCA Civ J1012-5
Order of His Honour Judge Richard Havery Q.C.
Before: Lord Justice Neill Lord Justice Waite Lord Justice Pill
QBENF 94/1338/B
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR. D. BRENNAN Q.C., MR. C. PUGH AND MISS S. MOOR (Instructed by Leigh Day & Co, 51 Grays Inn Road, London, WC1X 8PP) appeared on behalf of the Appellant.
LORD IRVINE OF LAIRG Q.C., MR. P. HAVERS Q.C. AND MR. D. STILITZ (Instructed by Ashurst Morris Crisp, Broadwalk House, 5 Appold St, London, EC2A 2HA) appeared on behalf of the Respondent.
PILL LJ:
The plaintiff and the hundreds of others who sue with her claim damages from Canary Wharf Ltd ('Canary Wharf') for interference, over a period of years, with reception of television broadcasts at their homes in East London. The interference is said to have been caused by the existence of the very tall building known as the Canary Wharf Tower ('the tower'). In another action many plaintiffs also claim damages against the London Docklands Development Corporation ('LDDC') for the deposit on their properties in East London of substantial quantities of dust created as a result of the construction by LDDC of a road known as the Limehouse Link Road ("LLR").
By direction of an Official Referee, several issues were considered as preliminary issues and judgments were given upon those issues by His Honour Judge Richard Havery sitting as an Official Referee, late in 1994. Appeals are made by the plaintiffs against some of the findings and the defendants against other findings. We have not been supplied with a detailed analysis of the identity or status of plaintiffs but many are the spouses and children of those with a proprietary interest in properties in the area
By virtue of the Isle of Dogs Enterprise Zone Designation Order 1982 ( SI 1982/462) an area of Limehouse, East London, was designated an enterprise zone. Canary Wharf built the tower, primarily for commercial purposes but also for residential and leisure purposes. The tower was "topped out" in November 1990. It is about 250 metres high and over 50 metres square and has stainless steel cladding and metallised windows.
The tower is about 10 kilometres from the BBC television transmitter at Crystal Palace and prior to the summer of 1989 television reception in the Limehouse/Poplar area of East London was good. Television signals are propagated through the atmosphere in such a way that if interrupted by large structures, particularly those with metallic content, reception is likely to be impaired in the 'shadow' of the structure. This being a preliminary point, we do not have the advantage of evidence as to the contribution to interference made by the metal. From the summer of 1989 the tower significantly contributed to serious interference with television reception in the area where the plaintiffs live. The claim against Canary Wharf is in nuisance, the damage being the loss of enjoyment of television and wasted licence fees.
In April 1991, a relay transmitter at Balfron Tower came into service to transmit into the "shadow" and the plaintiffs' television aerials were adjusted or replaced to receive the new signals between July 1991 and August 1992.
Pursuant to powers under the Local Government Planning and Land Act 1980 (the '1980 Act') the LLR was constructed between November 1989 and May 1993. It was about 1,800 metres in length of which 1,500 metres was cut and covered. For the purposes of the LDDC action, it is assumed that in carrying out the road works LDDC negligently caused or permitted excessive dust to be emitted from the works and to enter the plaintiffs' premises. Negligence and nuisance are alleged against LDDC.
The parties have posed questions to be determined by the Court in these appeals.
1.Is the interference with television reception capable of constituting an actionable private nuisance?
The learned Judge answered this question in the affirmative. The presence of Canary Wharf made it impossible for the plaintiffs to watch television transmissions from Crystal Palace. As an interference with their enjoyment of their premises, it was an actionable nuisance.
In Bridlington Relay Ltd v Yorkshire Electricity Board [1965] Ch 436 the plaintiffs erected a mast in order to provide a relay system of sound and television broadcasts. The defendant Electricity Board erected an overhead power line the effect of which would be to interfere with the reception of radio and television transmission at the mast. Buckley J declined to grant an injunction. In the course of his judgment, Buckley J stated, at p 447G:-
"For myself, however, I do not think that it can at present be said that the ability to receive television free from occasional, even if recurrent and severe, electrical interference is so important a part of an ordinary householders enjoyment of his property that such interference should be regarded as a legal nuisance, particularly, perhaps, if such interference affects only one of the available programmes".
Buckley J accepted that television had become a "very common feature of domestic life", that it was "enjoyed almost entirely for what … must be regarded as recreational purposes" and held that "a user of an ordinary domestic aerial for domestic enjoyment could not succeed on a claim for nuisance".
For the plaintiffs, Mr Brennan relies upon the judge's finding in this case that television reception now plays "an important part of an ordinary householder's enjoyment of his property". In Nor-Video Services Ltd v Ontario Hydro (1978) 84 DLR (3d) 231, Robins J in the Ontario High Court stated that "whatever may be the situation in England at the time of Bridlington, in my opinion it is manifest that in Canada today television viewing is an important incident of ordinary enjoyment of property and should be protected as such. It is clearly a principal source of information, education and entertainment for a large part of the country's population; and inability to receive it or unreasonable interference with its reception would to my mind undoubtedly detract from the beneficial use and ownership of property". In Nor-Video, as in Bridlington, what caused the interference with the television operation was an electrical power operation. In the present case, it is the presence of the building and not any activity in the building which interferes with the television signal. The tower is extremely tall but I am not prepared to assume that it is unique amongst buildings in interfering with television reception. Tall and bulky buildings have become a feature of urban landscapes.
Mr Brennan also relied upon the decision of Hardie Boys J in the High Court of New Zealand in Bank of New Zealand v Greenwood [1984] 1 NZLR 525. By reason of the design of a building, the rays of the sun on it threw off a dazzling glare to the windows of another building and the glare was held to be a substantial and unacceptable interference with the enjoyment of the other building though one which could be remedied simply by the provision of blinds. The learned Judge rejected a defence based on the problem being caused not by any activity carried on by the defendant but by the natural phenomenon of the sun shining. Hardie Boys J stated that "It is not essential that there be an activity for there to be a nuisance. Rather, it arises from a state of affairs".
Mr Brennan also refers to the object and duties of the BBC under its Charter and Licence and submits that there is a public right to receive television transmissions and that the enjoyment of that right is protected by the law of private nuisance. The duties relied on, as pleaded in the statement of claim, are:-
"Clause 3 of the Charter, dated 23rd July 1981, Command 8313 (as amended by Supplementary Charter dated 13th July 1983 (Command 9013)), provides that:
3.The objects of the Corporation are as follows:
(a)To provide, as public services, broadcasting services of wireless telegraphy by the method of telephony for general reception in sound, by the method of television of general reception in visual images and by the methods of television and telephony in combination for general reception in visual images with sound, in Our United Kingdom of Great Britain.
Clause 13(1) of their Licence and Agreement dated the 2nd April 1981 (Command 8233) states:
Unless prevented by circumstances beyond its control, the Corporation shall send efficiently programmes in the Home Services and the External Services from such stations as, after consultation with the Corporation, the Secretary of State may from time to time in relation to those Services respectively in writing prescribe."
There was no undue restriction on large buildings it is submitted because steps could be taken, as they were after the event in the present case, to provide an alternative signal. The nuisance was avoidable and the situation to be distinguished from loss of aspect.
Lord Irvine submits that interference with television reception by reason of the presence of a building is properly to be regarded as analogous to loss of aspect. To obstruct the receipt of television signals by the erection of a building between the point of receipt and the source is not in law a nuisance.
In Aldred's case (1611 9 Coke Rep 57) Wray CJ cited what he had said in Bland v Moseley (Trin 29 Eliz): "for prospect, which is a matter only of...
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