So far as the claim is for personal injury, it seems to me that the only appropriate cause of action is negligence. It would be anomalous if the rules for recovery of damages under this head were different according as to whether, for example, the plaintiff was at home or at work. It is true, as I have said, that the law of negligence gives no remedy for discomfort or distress which does not result in bodily or psychiatric illness. But this is a matter of general policy and I can see no logic in making an exception for cases in which the discomfort or distress was suffered at home rather than somewhere else.

      Finally there is the position of spouses. It is said to be contrary to modern ways of thinking that a wife should not be able to sue for interference with the enjoyment of the matrimonial home merely because she has no proprietary right in the property. To some extent, this argument is based upon the fallacy which I have already discussed, namely that the action in nuisance lies for inconvenience or annoyance caused to people who happen to be in possession or occupation of land. But so far as it is thought desirable that the wife should be able to sue for injury to a proprietary or possessory interest in the home, the answer in my view lies in the law of property, not the law of tort. The courts today will readily assume that a wife has acquired a beneficial interest in the matrimonial home. If so, she will be entitled to sue for damage to that interest. On the other hand, if she has no such interest, I think it would be wrong to create a quasi-proprietary interest only for the purposes of giving her locus standi to sue for nuisance. What would she be suing for? Mr. Brennan Q.C., who appeared for the plaintiffs, drew our attention to the rights conferred upon a wife with no proprietary interest by the Matrimonial Homes Act 1983. The effect of these provisions is that a spouse may, by virtue of an order of the court upon a break-up of the marriage, become entitled to exclusive possession of the home. If so, she will become entitled to sue for nuisance. Until then, her interest is analogous to a contingent reversion. It cannot be affected by a nuisance which merely damages the amenity of the property while she has no right to possession.

      I would therefore allow the appeal of the defendants in the dust case and their cross-appeal in the television case and restore the declaration made on this point by the judge.

5.      Interference with television

      In the television action, the plaintiffs complain that Canary Wharf Tower has diminished the amenity of their houses by interfering with television reception. In Bridlington Relay Ltd. v. Yorkshire Electricity Board [1965] Ch. 436 Buckley J. said, tentatively and obiter:

 "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 house holder's 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 alternative programmes."

      The learned judge was plainly not laying down a general rule that interference with television can never be an actionable nuisance. In principle I do not see why in an appropriate case it should not. Bridlington Relay was a case of alleged interference by electro-magnetic radiation from high tension electric cables. The Court of Appeal left open the question of whether interference of such a kind could be actionable and so would I.

      In this case, however, the defendants say that the type of interference alleged, namely by the erection of a building between the plaintiffs' homes and the Crystal Palace transmitter, cannot as a matter of law constitute an actionable nuisance. This is not by virtue of anything peculiar to television. It applies equally to interference with the passage of light or air or radio signals or to the obstruction of a view. The general principle is that at common law anyone may build whatever he likes upon his land. If the effect is to interfere with the light, air or view of his neighbour, that is his misfortune. The owner's right to build can be restrained only by covenant or the acquisition (by grant or prescription) of an easement of light or air for the benefit of windows or apertures on adjoining land.

      That such has until now been the law of England seems to me indisputable. A right to an uninterrupted prospect cannot be acquired even by prescription: Aldred's Case (1610) 9 Co.Rep 57b. The same is true of a right to the uninterrupted flow of undefined air to a chimney: Bryant v. Lefever (1879) 4 C.P.D. 172. In the absence of an easement, there is no right to light. In Bury v. Pope (1587) Cro.Eliz. 118 the owner of land was held entitled to erect a house against his neighbour's windows even though they had enjoyed light for over 30 years. Reporting the case, Sir George Croke succinctly noted the ratio decidendi in terms which might have had in mind Canary Wharf: "Nota. Cujus est solum, ejus est summitas usque ad coelum. Temp. Ed. 1."

      The circumstances in which this principle should be subject to limitations in favour of neighbours was considered by the House of Lords in Dalton v. Angus (1881) 6 App.Cas. 740. By that time it was well-established that a neighbour could prescribe for a right of light which would restrict his neighbour's freedom to build. The Prescription Act 1832 had fixed the period for the acquisition of such an easement at 20 years. As Willes J. pointed out in Webb v. Bird (1861) 10 C.B.(N.S.) 268, 285, prescription for an easement of light was anomalous. In the normal case of prescription, the dominant owner will have been doing something for the period of prescription (such as using a footpath) which the servient owner could have stopped. But one cannot stop a neighbour from erecting a building with windows. Nevertheless, they will after 20 years acquire an easement of light. In Dalton v. Angus (1881) 6 App.Cas. 740 the House of Lords decided that, in like fashion, the owner of a building could prescribe for an easement of support from neighbouring land. On the other hand, it was well settled that one could not prescribe for a right to an uninterrupted view or to a flow of air otherwise through a defined aperture or channel. Lord Blackburn considered how these cases were to be distinguished. He said that allowing the prescription of a right to a view would impose a burden "on a very large and indefinite area." Rights of light, air and support were strictly a matter between immediate neighbours. The building entitled to support, the windows entitled to light and the apertures entitled to air would be plain and obvious. The restrictions on the freedom of the person erecting the building would be limited and precise.

      In the absence of agreement, therefore, the English common law allows the rights of a landowner to build as he pleases to be restricted only in carefully limited cases and then only after the period of prescription has elapsed. In this case there is no claim to an easement of television by prescription. And in any event, on the reasoning in Dalton v. Angus (1881) 6 App.Cas. 740 I do not think that such an easement can exist. The extent to which a building may interfere with television reception is far from obvious. Nor is its potential effect limited to immediate neighbours. The number of plaintiffs in the television action is itself enough to demonstrate how large a burden would be imposed on anyone wishing to erect a tall building.

      Once again we must consider whether modern conditions require these well established principles to be modified. The common law freedom of an owner to build upon his land has been drastically curtailed by the Town and Country Planning Act 1947 and its successors. It is now in normal cases necessary to obtain planning permission. The power of the planning authority to grant or refuse permission, subject to such conditions as it thinks fit, provides a mechanism for control of the unrestricted right to build which can be used for the protection of people living in the vicinity of a development. In a case such as this, where the development is likely to have an impact upon many people over a large area, the planning system is, I think, is a far more appropriate form of control, from the point of view of both the developer and the public, than enlarging the right to bring actions for nuisance at common law. It enables the issues to be debated before an expert forum at a planning inquiry and gives the developer the advantage of certainty as to what he is entitled to build.

      In saying this, I am not suggesting that a grant of planning permission should be a defence to anything which is an actionable nuisance under the existing law. It would, I think, be wrong to allow the private rights of third parties to be taken away by a permission granted by the planning authority to the developer. The Court of Appeal rejected such an argument in this case and the point has not been pursued in your Lordships' House. But when your Lordships are invited to develop the common law by creating a new right of action against an owner who erects a building upon his land, it is relevant to take into account the existence of other methods by which the interests of the locality can be protected.

      In this case, as I mentioned at the beginning of this speech, the normal protection offered to the community by the Town and Country Planning Act was largely removed. Parliament authorised this to be done on the grounds that the national interest required the rapid regeneration of the Docklands urban development area. The plaintiffs may well feel that their personal convenience was temporarily sacrificed to the national interest. But this is not a good enough reason for changing the principles of the law of nuisance which apply throughout the country.

      On the one hand, therefore, we have a rule of common law which, absent easements, entitles an owner of land to build what he likes upon his land. It has stood for many centuries. If an exception were to be created for large buildings which interfere with television reception, the developers would be exposed to legal action by an indeterminate number of plaintiffs, each claiming compensation in a relatively modest amount. Defending such actions, whatever their merits or demerits, would hardly be cost-effective. The compensation and legal fees would form an unpredictable additional cost of the building. On the other hand, the plaintiffs will ordinarily have been able to make their complaints at the planning stage of the development and, if necessary, secure whatever conditions were necessary to provide them with an alternative source of television signals. The interference in such a case is not likely to last very long because there is no technical difficulty about the solution. In my view the case for a change in the law is not made out.

      I would therefore agree with the Court of Appeal on this point and dismiss the plaintiffs' appeal in the television action.