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.”

CAMBRIDGE WATER CO. v EASTERN COUNTIES LEATHER PLC

Foreseeability within the tort of negligence and nuisance has over time, become an integral element of the decision making process; yet, there was a period when mere acts were suffice to claim damages.

In this matter, the actions of a manufacturer that while deemed harmless at the time, became key to a claim for substantial costs, and one in which existing precedent was brought into question on the principles of natural justice.

Founded in 1879, the appellant company Eastern Counties Leather (ECL), were a leather goods manufacturer that relied upon particular treatment processes in order to soften the pelts used.

Since the early 1950s, the firm used trichloroethene (TCE), until around 1973, when they switched to perchloroethene (PCE), as was then considered the industry standard. 

Around 1976, the respondent company Cambridge Water Company (CWC), purchased an industrial site containing a borehole, situated roughly one to three miles north west of the village in which the ECL operated, and began using the hole as a source of public drinking water.

Prior to its implementation within the regional water supply, a number of test were carried out to ensure contamination levels were below the prescribed limits set under the Water Resources Act 1963.

In 1980, both the World Health Organisation and Council of the European Communities drafted Directive 80/778/EEC in relation to the safe human consumption of drinking water, which was later transposed into the Water Industry Act 1991 under secondary legislation.

Under this Act, it was stated that the maximum admissible concentration of PCE was 10µg per litre of water.

Subsequent borehole tests carried out in the early 1980s showed PCE concentration levels of between 70 and 170µ per litre, which prompted investigation by the respondents as to the source of the contaminant.

As was evident, ECL had continued to use PCE until 1991, while it was common for the appellants to store roughly 25,000 litres in drums at any one time.

During the application stage, these drums were driven by forklift to the degreasing machines, whereupon the PCE was poured directly into their reservoirs.

It was not uncommon for spillages to occur; after which, the PCE would be quickly cleaned up, so as to avoid accidents or inhalation of fumes; and as the floors themselves were concrete, it would not have seemed possible that any residual liquid could seep into the soil below.

After commissioning independent research into the presence of PCE in the borehole, it was established that trace elements of PCE had in fact, passed through the sub-structure of ECL over a course of nearly twenty years, eventually joining the water supply used by the appellants.

And while the individual amounts were insufficient to cause harm, they had amassed over time so as to push the levels found far beyond that allowed; which in turn, led to the decommissioning of the borehole and inevitable litigation.

In the first hearing, the respondents claimed for substantial damages of around £1m for the cost of a new pumping station, following the borehole closure and cited negligence, nuisance and non-natural use of the land provided under the principles espoused in Rylands v Fletcher; upon which, the claim was summarily dismissed.

Presented to the Court of Appeal, the respondents argued that the judge had erred in law, while the appellants contended that they were not liable for the lost PCE on grounds of foreseeability and that the burden of proof was that of the respondents and not the appellants, and the evidence submitted was inadequate.

Turning to the outcome in Ballard and Tomlinson, the Court held that Pearson J, who remarked:

“[I]t seems to me that although nobody has any property in the common source, yet everybody has a right to appropriate it, and to appropriate it in its natural state, and no one of those who have a right to appropriate it has a right to contaminate that source so as to prevent his neighbour from having the full value of his right of appropriation. . . . Neither does it matter whether the parties are or not contiguous neighbours. If it can be shown in fact that the defendants have adulterated or fouled the common source, it signifies not how far the plaintiffs land is from their land.”

Ballard and Tomlinson

Encapsulated the very essence of nuisance; and that in failing apply the principle, the previous judge had overlooked the strictness of the nuisance doctrine and thus denied the right to damages.

Thus for that fundamental reason, the appeal was upheld and almost £1.7m awarded in favour of the respondents.

Presented before the House of Lords, the dicta of Blackburn J in Rylands explained well that:

We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”

Rylands v Fletcher

Yet, the House held that while nuisance in its singular use brings certainty to the liability of those found answerable, it precludes the necessary factor of foreseeability; which on this occasion, was starkly evident, inasmuch as it had taken almost twenty years for the PCE levels to reach significant risk, and that there was insufficient knowledge on the part of the appellants to even begin to appreciate that liquids could permeate concrete before navigating through numerous other substratum, prior to joining a stream more than thirty metres below ground.

For this reason, it was held that the previous decisions were unsustainable; and that rather than a matter for negligence or nuisance, it was at best, an example of historic pollution which was not subject to legislative effects at the time, thus the appeal was allowed, while the House reminded the parties that:

“[f]oreseeability of damages a prerequisite of the recovery of damages under the rule. ”