LORD HOFFMANN

My Lords,

1.      Canary Wharf

      Canary Wharf is part of the old West India Docks which straddle the neck of land formed where the Thames doubles back on itself between Limehouse Reach and Blackwall Reach. That part of the river used to be a thriving port. Thousands of people who worked in the docks or on the ships lived nearby in Limehouse and Poplar to the north and the Isle of Dogs to the south. But container transport and motorways made the London docks obsolete. By the mid-seventies they had largely been abandoned. The land along the river lay derelict.

      The Local Government, Planning and Land Act 1980 contained provisions designed to encourage the regeneration of such areas. It provided that if the Secretary of State was of opinion that it was "expedient in the national interest," he could designate an area as an "urban development area" and establish an "urban development corporation" for the purposes of regenerating the area: sections 134(1) and 135(1). The Act listed the ways in which the regeneration of the area was to be achieved:

 "bringing land and buildings into effective use, encouraging the development of existing and new industry and commerce, creating an attractive environment and ensuring that housing and social facilities are available to encourage people to live and work in the area": (section 136(2)).

      In 1981 the Secretary of State designated the London docklands an urban development area and established the London Docklands Development Corporation ("LDDC").

      In order to encourage development by the private sector, the Act (by section 149) enabled the Secretary of State to override the normal requirements for planning permission contained in the Town and Country Planning Act 1971. Under those powers, he approved a scheme adopted by the LDDC for designating the Isle of Dogs, including Canary Wharf, as an Enterprise Zone. The scheme provided that (subject to certain exceptions) all land in the zone was deemed to have been granted planning permission for any kind of development. Anyone could build what they liked. The only relevant exception was that a building over 120 feet high could be erected only by agreement with the LDDC.

      In July 1986 the LDDC concluded an agreement with a company called Olympia and York Canary Wharf Ltd. (now called Canary Wharf Ltd.) under which it would construct a group of very large office buildings at Canary Wharf and the LDDC would provide some of the necessary infrastructure. The building in the centre of the group was built first. It is over 800 feet tall and clad in stainless steel. The LDDC, for its part, employed contractors to construct a new road giving access from central London called the Limehouse Link. Nearly a mile of it is underground. A great deal of excavation and earth moving was necessary and it took nearly four years to build.

2.      The Local Residents

      Before the 1980 Act it was most unlikely that planning permission would have been granted for a development on the scale of Canary Wharf without a public inquiry under the Town and Country Planning Act 1971. Local residents would have had the opportunity to go before an inspector and put forward their objections. In an Enterprise Zone, the procedure for the protection of neighbouring interests was very limited. Before adopting the scheme, the LDDC was obliged to consider representations: (Sched. 32, para. 2(3).) If their representations were rejected, the residents could lobby their Members of Parliament to try to have the scheme annulled by negative resolution (Schedule 32, paragraph 5(3).) In all other respects, their interests were liable to be overridden by the Secretary of State's view of the national interest and the LDDC's view of the best way to achieve its statutory objectives.

      The local residents complain that the construction of the Canary Wharf Tower and the Limehouse Link Road caused them serious disturbance and inconvenience. Firstly, the construction of the road caused a great deal of dust in the air which settled upon their homes and gardens. If they opened their windows, everything in the room was soon covered in a layer of dust. If they hung out the washing in the garden it became dirty again. Secondly, the Canary Wharf Tower interfered with television reception. The great metal-clad tower stood between the BBC transmitter at Crystal Palace in south London and a swathe of houses, mainly in Poplar to the north of Canary Wharf, which lay in the building's electromagnetic shadow. The effect was that many houses could not receive television at all. In others the quality of the signal was impaired. This state of affairs continued until April 1991, when the BBC brought a relay transmitter into service. Between July 1991 and August 1992 the residents had their aerials aligned to the new transmitter and the problem was thereby solved.

3.      The Actions

      On 16 December 1993 a large number of residents in the vicinity of Canary Wharf commenced two separate actions; one against Canary Wharf Ltd., the owner of the office tower, and the other against the LDDC. The first action, which I shall call the television action, complained of interference with television reception and was based on negligence and nuisance. The second action, which I shall call the dust action, complained of damage and annoyance caused by dust and was based on negligence, nuisance and the rule in Rylands v. Fletcher.

      The plaintiffs in the television action numbered 690 and those in the dust action 513 [though some have since discontinued]. Some were the owners or tenants of houses. In some cases, husbands and wives were joint owners or joint tenants. But many of the plaintiffs had no proprietary interests in land at all. They were wives living in houses owned by or let to their husbands, or children living with their parents, or relations or lodgers having the use of a room.

      On 27 June 1994 His Honour Judge Fox-Andrews Q.C. made orders in both actions for the trial of certain preliminary issues. Two of these are the subject of appeals before your Lordships. The first, which arises in both actions, is whether a plaintiff in an action for private nuisance need have an interest (and if so, what interest) in property. The second is whether the alleged interference with television was capable of constituting an actionable nuisance. His Honour Judge Richard Havery Q.C. decided, first, that a plaintiff in an action for private nuisance must have a right to exclusive possession of the property to which the nuisance is alleged to have been caused and secondly, that the interference with television was capable of constituting an actionable nuisance. The Court of Appeal disagreed on both points. It allowed an appeal by the plaintiffs in the dust action and declared that a plaintiff need not have an interest in property. He could sue in nuisance if he occupied the property in question as a home. It allowed an appeal by the defendant in the television action and declared that the interference with television alleged in this case was not capable of constituting an actionable nuisance

4.      The Right to Sue

      In the dust action it is not disputed that, in principle, activities which cause dust to be deposited on the plaintiff's property can constitute an actionable nuisance. The question raised by the preliminary issue is: who can sue? In order to answer this question, it is necessary to decide what exactly he is suing for. Since these questions are fundamental to the scope of the tort of nuisance, I shall deal with them first.

      Up to about twenty years ago, no one would have had the slightest doubt about who could sue. 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. In Sedleigh-Denfield v. O'Callaghan [1940] A.C. 880, Lord Wright said:

 "I do not attempt any exhaustive definition of that cause of action. But it has never lost its essential character which was derived from its prototype, the assize of nuisance, and was maintained under the form of action on the case for nuisance. The assize of nuisance was a real action supplementary to the assize of novel disseisin. The latter was devised to protect the plaintiff's seisin of his land, and the former aimed at vindicating the plaintiff's right to the use and enjoyment of his land. The assize became early superseded by the less formal procedure of an action on the case for nuisance, which lay for damages. This action was less limited in its scope, because whereas the assize was by a freeholder against a freeholder, the action lay also between possessors or occupiers of land. With possibly certain anomalous exceptions, not here material, possession or occupation is still the test."

      In speaking of "possession or occupation" Lord Wright was in my view intending to refer both to a right to possession based upon (or derived through) title and to de facto occupation. In each case the person in possession is entitled to sue in trespass and in nuisance. An example of an action for nuisance by a de facto possessor is Foster v. Warblington Urban District Council [1906] 1 K.B. 648 in which the plaintiff sued the council for discharging sewage so as to pollute his oyster ponds on the foreshore. He had some difficulty in proving any title to the soil but Vaughan Williams L.J. said:

 "But, even if title could not be proved, in my judgment there has been such an occupation of these beds for such a length of time--not that the length of time is really material for this purpose--as would entitle the plaintiff as against the defendants, who have no interest in the foreshore, to sustain this action for the injury which is alleged has been done by the sewage to his oysters so kept in those beds."

      Thus even a possession which is wrongful against the true owner can found an action for trespass or nuisance against someone else: Asher v. Whitlock (1865) L.R. 1 Q.B. 1. In each case, however, the plaintiff (or joint plaintiffs) must be enjoying or asserting exclusive possession of the land: see per Blackburn J. in Allan v. The Overseers of Liverpool (1874) L.R. 9 Q.B. 180. Exclusive possession distinguishes an occupier who may in due course acquire title under the Limitation Act 1980 from a mere trespasser. It distinguishes a tenant holding a leasehold estate from a mere licensee. Exclusive possession de jure or de facto, now or in the future, is the bedrock of English land law. As it is said in Cheshire and Burn's Modern Law of Real Property 15th ed., (1994) at p. 26:

 "All titles to land are ultimately based upon possession in the sense that the title of the man seised prevails against all who can show no better right to seisin. Seisin is a root of title, and it may be said without undue exaggeration that so far as land is concerned there is in England no law of ownership, but only a law of possession."

      The leading case on the need for exclusive possession to found an action in nuisance is Malone v. Laskey [1907] 2 K.B. 141. Mrs Malone lived in a house belonging to her husband's employer. He was probably a service occupier. She was injured by the falling of a bracket supporting a water tank which had been dislodged by vibrations caused by an engine worked by the defendants on the adjoining premises. She sued in negligence and nuisance and lost on both counts. Today she would have had a cause of action in negligence. The Court of Appeal applied the restricted doctrine of the duty of care which prevailed before Donoghue v. Stevenson [1932] A.C. 562. In A. C. Billings & Sons Ltd. v. Riden [1958] A.C. 240 the decision on this point was overruled. On nuisance, however, her claim was rejected because she had no interest in the property. She was the licensee of her husband or his employer.