HUNTER v CANARY WHARF LTD

The tortious claim for nuisance, and the rights of those in occupation of land have for many years, been exclusively limited in the preservation of common law sensibility.

On this occasion, a collective suit for both nuisance and negligence by local residents against that of corporate rights, produced an unexpected outcome.

After the demise of dockland trading in London, the areas once frequented by countless importers and exporters, fell foul of disuse and neglect.

After lengthy consideration, both immediate and future plans for the site were subject to the Secretary of State who, recognising the need for both housing and commercial exploitation, took advantage of sections 134(1) and 135(1) of the Local Government, Planning and Land Act 1980, in order to commission urban regeneration of the London docklands area under the formation of the London Docklands Development Corporation (LDDC).

In line with the need for such redevelopment, the 1980 Act allowed the Minister to override typical planning permission requirements, as laid down in the Town and Country Planning Act 1971.

This resulted in the construction of the 800ft tall Canary Wharf Tower by nominated contractors Olympia and York Canary Wharf Ltd, along with interlinking roads to the surrounding city over a four-year period.

This ambitious project resulted in two tortious claims by 500-700 local residents; the first of which, centred around the interruption and in some cases, total disruption of television broadcast signals after the completion of the tower, and excessive amounts of materials dust invading the homes of the claimants throughout the construction period.

The case itself drew mixed, and yet keen attention of the the courts, primarily because the history of nuisance and negligence were to some extents, intertwined, and thus dependant on the principles found within property law.

In the first matter, the rights of those wishing to build upon their land stem from the long-standing principle that in the exception of easements or restrictive covenants, every man has the freedom to build as he pleases, as was stressed by Hardwicke LC in Attorney-General v Doughty, when he said:

“I know no general rule of common law, which warrants that, or says, that building so as to stop another’s prospect is a nuisance. Was that the case, there could be no great towns; and I must grant injunctions to all the new buildings in this town . . .”

Attorney-General v Doughty

Furthermore, in a recent German case G v City of Hamburg, the Supreme Court had ruled unequivocally that where a resident had suffered diminished television broadcast signals following the construction of a nine-storey hospital, such effects were not subject to the powers of their Civil Code; and so, no claim for nuisance could stand.

This reflected the stance of the English courts; therefore, support for such a claim would not be found, despite the large numbers of complaints.

Turning to the issue of dust, the principles of property law were again invoked, inasmuch as established academic precedent argued that:

“In true cases of nuisance the interest of the plaintiff which is invaded is not the interest of bodily security but the interest of liberty to exercise rights over land in the amplest manner. A sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens. It is for this reason that the plaintiff in an action for nuisance must show some title to realty.”

However, this definite founding for claim had seen its critics, when in Foster v Warblington Urban District Council, the Court of Appeal had ruled that a person in exclusive possession of land could sue, despite no evidence of title.

This principle was further promoted in Khorasandjian v Bush; in which, a young girl had been subjected to continuous phone calls from a spurned former partner while living with her parents; and where, Dillon LJ had also remarked that it was:

“[R]idiculous if in this present age the law is that the making of deliberately harassing and pestering telephone calls to a person is only actionable in the civil courts if the recipient of the calls happens to have the freehold or a leasehold proprietary interest in the premises in which he or she has received the calls.”

Khorasandijian v Bush

Here, the court followed Canadian case Motherwell v Motherwell, where it was held by the Appellate Court, that not only was the legal owner entitled to remedy for nuisance, but the wife too, despite her having nothing more than occupational rights.

Unfortunately, the problems facing the claimants was that a large majority of them were spouses, children and in some instances, extended family.

This placed the courts in a difficult position when recognising the need to consider expanding upon private claimant rights in nuisance cases beyond that of land owners, especially with similar changes to spousal rights in both the Matrimonial Homes Act 1983 and the Family Law Act 1996.

When first heard, the court held that television signal interference was a claimable right under nuisance, and that exclusive possession of land was the qualifying criteria for claim in both instances.

However, the Court of Appeal reversed the decision; and so, the original defendants appealed to the House of Lords, while the claimants cross-appealed.

With forbearance of the seemingly inextricable limitations of both tort and property laws, it was (after lengthy discussion) unanimously held that the despite the changes in modern society and the family units, the strict rule of exclusive possession remained steadfast; not on grounds of unreasonableness, but in the prevention of arbitrary awards for complainants having little to no proprietary rights.

Hence the House reversed the Court of Appeal’s findings, while reminding the parties that:

“Nuisance is a tort against land, including interests in land such as easements and profits. A plaintiff must therefore have an interest in the land affected by the nuisance.”

MONCRIEFF v JAMIESON

Vehicular access through the granting of a servitude (or easement), is something that when not considered at the date of grant, can also fail to appreciate the need to park within the allotted space over the course of time.

In this matter, the presence of land-locking and the limitations of geography, presented the respondents with no real means to enjoy their occupation as freeholders, when the parking of their car(s) was to be restricted to a public road, literally hundreds of metres away from the family home.

Situated in the village of Sandsound in the Shetland Islands, the cause of action rested upon the estranged living arrangements between three parties.

The respondents were owners of a property first purchased from one of the appellants in 1973; and which, was built on a coastal plot allowing access via a stone stepped path across the vendor’s land, or equally by boat.

Due to the formation of the land, it was impossible to park cars on the land owned by the respondents, while the appellants were the vendor (third appellant) and his son and wife (first and second appellants), who owned a neighbouring property situated in the same of land as the respondents.

At the time of conveyance, the deed included a clause granting “a right of access from the branch public road through Sandsound”.

This public route terminated short of a gate set at the top of the steps; and during the preceding ten to fifteen years, the respondents used the land around the gate for parking, unloading and reloading and to provide subcontractors with parking space while undertaking work on their house.

This regular use of land was never objected to by the vendor; and so, continued without interruption, until such time that the second appellant and the respondent constructed a new section of road that allowed the respondents dual parking and turning space.

Having both enjoyed the space provided, it was later decided by the second appellant that he would extend his garden and use the parking area to accomplish it, which resulted in the respondents being forced to park on the vendor’s land some distance away.

When put before the courts, it was argued that the terms of the servitude implied that a right to park formed part of the covenant, and so denying them such rights was a breach of the obligation carried within the terms of the disposition.

After considering volumes of testimony and associated evidence, the court employed the services of the local sheriff who, after a laboured inspection, decided by interlocutory judgment that the respondents were entitled to exercise their right to park, and that any interference by the three appellants would result in legal action by the court.

Upon appeal, the Court found disagreement with the mechanics of the injunctive measure, and amended the declaration to provide a legal right to park within the area determined by the servitude, so as to allow freedom to enjoy the rights contained within it.

When presented before the House of Lords, the principles of easements and rights to park were carefully balanced when assessing both the needs of the dominant tenement and the servient tenement.

While use of the land permits freedom to pursue access, it must also continue to the serve the needs of the servient tenement, when equally enjoying use of the remaining land.

This formed the premise of debate; and so, it was decided that implication can be relied upon when embracing the entirety of the servitude, insofar as enjoyment of the grant must be provided for in full in order to defeat anything that runs counter to its effect.

This translated that the right to park in the area previously used, remained free of obstruction and the appeal was uniformly dismissed, while the House reminded the parties that:

“Every servitude prevents any use of the servient land, whether ordinary or otherwise, that would interfere with the reasonable exercise of the servitude.”

COPELAND v GREENHALF

The definition of an easement is one that runs with and benefits the land, when recognised under common law; and so, in this instance, the proclamation of easement by prescription, belied what may be equally construed as adverse possession, while defying the traditional purpose of rights of way over adjoining land.

When an estate comprising fields and a private orchard was sold to a new owner, a neighbouring property owner found themselves subject to complaint and mandatory injunction, when their use of a strip of the newly acquired land amounted to little more than exclusive possession under the pretence of an easement

The defendant in this matter occupied and operated, a wheelwright business that had enjoyed the benefit of storing carriages, and now, commercial and agricultural vehicles awaiting repair on the strip in question.

While the manner in which these items were left allowed for entrance and exit to the owner’s house, there had on occasion, been disruption to the use of the strip beyond that which was held as reasonable.

Having then taken the defendant to court in order for the vehicles to be removed, the argument was put before the judge that prior to the recent purchase, an agreement had been made between the former owners and the defendant, thus allowing him and his father to store carriages and spare parts until such time that they could be serviced and returned to their customers.

This arrangement dated back half a century, and so when the home had been leased to tenants, no complaints had been made regards the defendants use of the land.

This amounted to a claim that the existence of an easement was valid under the Prescription Act 1832.

While easements can be enforced by prescription, the court was indifferent to the manner in which the defendants had used the land, inasmuch as far from using the strip as a means of access, they had simply left a number of objects in situ, with the luxury of knowing they may, or may not, be used and removed.

Furthermore, the defendant’s land was adjacent to the strip and so did not touch the property in question, therefore it fell outside the scope of easement rights, and thus failed to determine the arrangement as one comprising a right of way.

With the defendant relying upon the far-reaching Attorney-General of Southern Nigeria v John Holt & Co (Liverpool) Ltd to distinguish the claim, it was agreed that while no immediate objections had been raised by the previous owners, occupying tenants or new owners, it was not possible to consider the manner in which the land was used required possession; therefore, no claim for the former could be upheld, while the court reminded the parties that:

“[A]n easement can be lawfully acquired only if it is capable of judicial definition, restriction and control.”

BROWNE v FLOWER

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Derogation from grant by way of illegal easement, and the right to peaceful enjoyment of property, make for a brief and yet divisive matter, when two leaseholders seek to enforce their own entitlements in the courts.

Having recently acquired tenancy in a shared building, the respondent took steps to reduce her portion of the property, in exchange for subletting to an additional tenant.

In order for this to work, it was proposed by the leaseholder to the landlord, that an iron external staircase would allow for access when the using the room created.

The landlord raised no objections, and so the work went ahead as planned.

Having rented the ground floor of the same building, the claimant’s privacy was impinged upon, as the staircase was erected between two of her bedroom windows.

This translated that the sub-tenant using the stairs was now afforded a clear view into those rooms.

Under the terms of the lease, the landlord was under obligation not to derogate from the arrangement, which included an agreement that no tenant would suffer, or cause to suffer, another tenant any nuisance or reduction of the view to the outside gardens while in occupancy.

As was clear from the location and purpose of the staircase, the claimant was now placed into a position where she either installed blinds or curtains to restrict the view, or argued that the imposition and loss of light resulting from them had constituted a breach of agreement on the part of the landlord.

Upon litigation, the court heard about, and fully appreciated, the invasive nature of the staircase, but when relying upon similar case precedent, there was insufficient evidence to suggest that the invasion of privacy amounted to total loss of the views provided for by the outside gardens, or any enjoyment of natural light.

It was held instead, that the change in circumstances proved mere inconvenience at particular times of the day and little more.

It was also held that while the terms of the lease prevented any use of the property beyond that of private tenants, the staircase had been built upon adjoining land, and not that used and paid for by the tenants, therefore it fell beyond the scope of claim.

In closing, the judge awarded in favour of the respondents, before noting that the landlord had only consented with the erection of the staircase on the respondent’s assurances that the claimant had raised no objections; therefore, there had been misrepresentation as to any disagreement prior to their installation, and so no order for her costs were made, while the court reminded the parties that:

“[I]f the grant or demise be made for a particular purpose, the grantor or lessor comes under an obligation not to use the land retained by him in such a way as to render the land granted or demised unfit or materially less fit for the particular purpose for which the grant or demise was made.”

WHEELDON v BURROWS

Derogation from grant’ and the conclusive nature of conveyances were judicially clarified when a landowner divided his estate into two distinct plots, before individually auctioning them to separate purchasers under identical contracts; whereupon, litigation commenced over their right to enjoy both privacy and right to light.

With a brick wall dividing the two plots, the second sale left the respondent with a brick building situated fairly close to the wall with three windows facing the first plot but with  space enough to allow natural light to pass through them, and while both contracts mirrored one another, neither included any express reservations aside from a vague stipulation that the first lot was subject to a favourable right for the purchasers and occupiers of the second plot for a indeterminable period.

Roughly five years later, the appellant erected a fence obscuring the respondent’s view when using his workshop, which prompted his demolition of the obstruction on principle that when taking ownership of the property, it was under an implied easement inherited from the vendor and therefore lawfully enforceable; however, this resulted in litigation; in which, the court noted how the vendor had failed to include any express reservation to the two parties; and so, awarded in favour of the appellant and ordered an injunction to prevent further trespasses.

Challenged in the Court of Appeal, the Court merely upheld the previous judgment on grounds that should English law adopt a view that implied rights and reservations were automatic to a conveyance, the rights of ownership and peaceful use and enjoyment of land would be violated beyond all reason, while reminding the parties that:

“[N]o implication can be made of a reservation of an easement to the grantor, although there may be an implication of a grant to the grantee.”

WILLARD v. FIRST CHURCH OF CHRIST, SCIENTIST

Reservation of interest for a third party to a conveyance when honouring the intentions of the vendor was at one point impossible; however, in this matter the court broke with tradition for the sake of modernity and allowed the claim to stand.

In 1972, litigation commenced when a somewhat unconventional conveyance was initiated by parties not entirely privy to its completion. This began when the part owners of conjoined plots decided to sell their property along with the adjoining vacant plot, despite having title only to their home, while the second plot was itself used by a local church adjacent to the site for parking purposes under express permission by the landowner.

At the point of sale, the vendor approached the landowner and explained that a joint sale was under offer, and that with her permission, the two parties would stand to profit at the price suggested. Having considered the opportunity, the owner requested that an easement be inserted into the deeds for the second plot, after which the sale went through as hoped.

Unfortunately for one reason or another, the purchaser and now respondent was unaware that the easement existed, and so now sought quiet title to the plot, whereupon the district court upheld the claim on grounds that under common law, a grantor cannot reserve interest to a stranger to a title, and therefore the easement was unlawful and void, as was also expressed in ‘The Law of Real Property’ (1939) and ‘Reservations in Favor of Strangers’ (1953) both of which stated how while a reservation allowed a grantor’s whole interest to pass to a grantee, it reverted a newly created interest in the grantor, but not to a theoretical third party to the disposition.

Presented in the Supreme Court of California, the appellant church argued that under art.5 s.1085(a) of the California Civil Code, interest to a disposition of property was assignable to persons not named in the deed, however the Court held that as the appellants were a corporation and not individual entities, the statute could not reasonably apply.

Instead, the Court referred to both Townsend v. Cable and Garza v. Grayson, within which the supreme courts of Kentucky and Oregon had abandoned the existing common law rule in favour of following the wishes of the grantor, a position subsequently adopted by the Court as a show of indifference to the now outdated and restrictive approach to property conveyance.

It was then argued by the respondents that the easement was invalid as the property insurers had not relied upon it when drafting their policies; however, there was no evidence to support such a claim; and so, the Court held that a balance must be struck between the want of policy and the equitable nature of the claim; which on this occasion, fell in favour of the needs of the grantor, despite the limitations of the statute presented.

It was thus for this reason that the Court upheld the appeal and reversed the previous judgment, while reminding the parties that:

“[G]rants are to be interested in the same way as other contracts and not according to rigid feudal standards.”

BORMAN v GRIFFITH

Implication by way of contract, is argued in a case involving the conflict of interests between two tenants and a perhaps disorganised and rushed grant of occupancy by the landlord.

In a time immediately before the Law of Property Act 1925, a landowner sought to let out a part of his estate for a determined period, while under the terms of the lease, there was at the time, a gravelled road that passed by the tenant’s rented property named ‘The Gardens’, which led to the door of the main estate property named ‘The Hall’.

At the time the tenant began his residence, there was also an unfinished bridleway that allowed for access to the rear of the Gardens, albeit given no mention within the contract, nor any reliable evidence that use of the drive had been orally agreed between the two parties.

During this period, and shortly after taking occupancy of the Gardens, the Hall was leased to another occupier, with no issues arising between them.

A few years afterwards, this same tenant vacated the Hall; and so, the landowner let it out to another party for a fixed period; after which, the occupier of the Gardens continued to use the gravelled drive as a means of access to the front of his property, as he had since his lease began.

Two years after taking up residency, the defendant in this case erected a wire fence to prevent the claimant and tenant of the Gardens from using the gravelled drive as a means of access; hence, the need for litigation.

Relying upon the wording of section 62(1) of the 1925 Act, and the fact that there had never been any other suitable means of access to his home, the claimant argued that an easement by way of implication had been granted by the landlord.

When considered by the court, the facts determined that there was a clear difference between the granting of a lease and the conveyance of interest in land or property; and that in this instance, the former applied.

There was however, the principle that under the terms of the contract there could be argued, an obligation to undertake full performance of the rights bestowed the claimant, where unless the contract provides specific exclusion of a right of way between two sharing tenants, the gravelled drive afforded both users equal powers to enforce their rights.

It was on these grounds, that the judge endorsed the action and awarded accordingly, while holding that:

“[A] grantor of property, in circumstances where an obvious, i.e., visible and made road is necessary for the reasonable enjoyment of the property by the grantee, must be taken prima facie to have intended to grant a right to use it.”