Law Report: No nuisance caused by Canary Wharf tower

LAW REPORT: 2 May 1997

Hunter and Others v Canary Wharf Ltd; Hunter and Others v London Docklands Development Corporation; House of Lords (Lord Goff of Chieveley, Lord Lloyd of Berwick, Lord Hoffman, Lord Cooke of Thorndon and Lord Hope of Craighead) 24 April 1997

A claim did not lie in nuisance for interference with television reception caused by the erection of a tall building on the defendant's land; and a person without a right to exclusive possession of land could not sue in nuisance.

The House of Lords unanimously dismissed the plaintiffs' appeal in the first action against the decision of the Court of Appeal that they had no action in nuisance in respect of television interference caused by the erection of the Canary Wharf Tower on the defendant's land; and, Lord Cooke dissenting, allowed the cross-appeal by the defendant in the first action, and the defendant's appeal in the second action, against the decision of the Court of Appeal that the occupation of a property as a home was a sufficient interest to allow the plaintiffs to sue in nuisance.

The claim in the second action was in respect of excessive dust caused by the construction by the defendants of the Limehouse Link Road.

Lord Irvine of Lairg QC, Philip Havers QC and Daniel Stilitz (Leigh Day & Co) for the defendants; Daniel Brennan QC, Charles Pugh and Sarah Moor (Ashurst Morris Crisp) for the plaintiffs.

Lord Goff said that the question whether interference with television signals might give rise to an action in private nuisance had first been considered in Bridlington Relay Ltd v Yorkshire Electricity Board [1965] Ch 436. In that case it was held that such interference was not actionable since it interfered with a purely recreational facility.

There was, however, a more formidable obstacle to the present claim. As a general rule, a man was entitled to build on his own land, subject to planning control. Moreover, as a general rule, that right was not restricted by the fact that the presence of the building might of itself interfere with his neighbour's enjoyment of his land.

For an action in private nuisance to lie in respect of interference with the plaintiff's enjoyment of his land, it would generally arise from something emanating from the defendant's land, although in relatively rare cases activities on the defendant's land were in themselves so offensive to neighbours as to constitute an actionable nuisance.

The mere fact that a building on the defendant's land got in the way and so prevented something from reaching the plaintiff's land was not generally speaking enough. The plaintiffs' appeal on the first issue would accordingly be dismissed.

The plaintiffs in both actions consisted of a substantial group of local people, not all of whom were householders with the exclusive right to possession of the places where they lived.

The essence of nuisance was that it was a tort against the plaintiff's enjoyment of rights over land. Subject to the exception that a person who was in exclusive possession of land might sue in nuisance even though he could not prove title, it had for many years been regarded as settled law that a person who had no right in land could not sue in private nuisance: see Malone v Lasky [1907] 2 KB 141, which had been followed in many cases.

The Court of Appeal had departed from that line of authority in Khorasandjian v Bush [1993] QB 727, but no assistance could be derived from that case by the plaintiffs in the present appeals.

It followed that, on the authorities as they now stood, an action in private nuisance would only lie at the suit of a person who had a right to the land affected, and the question arose whether their Lordships should be persuaded to depart from such a principle.

Any departure from the established law on the subject, such as that defined by the Court of Appeal in the present case, posed the problem of defining the category of persons who had the right to sue. The Court of Appeal had adopted the not easily identifiable category of those who had a "substantial link" with the land, regarding a person who occupied the premises "as a home" as having sufficent link for that purpose.

The extension of the tort in that way would, however, transform it from a tort to land into a tort to the person. That would not be an acceptable way in which to develop the law.

There was no good reason to depart from the established law. Khorasandjian v Bush must therefore be overruled in so far as it held that a mere licensee could sue in private nuisance. The appeal or cross-appeal of the defendants in both actions would be allowed.

Kate O'Hanlon, Barrister