Nuisance ruling annoys occupiers

TWO actions that started in the Official Referee's court more than two years ago have set a precedent in the laws of nuisance.

The cases of Hunter & ors v Canary Wharf Ltd and Hunter & ors v London Docklands Development Corporation, went on to the Court of Appeal and have now become the subject of a 50-page House of Lords ruling.

It is a ruling which few have reason to applaud. It curtails the rights of many members of the public to seek legal remedy using the private nuisance laws. The private individual is the party most likely to suffer, says solicitor, Sally Moore, of Leigh Day & Co, who has led the legal fight for the plaintiffs in the case.

The actions involved complaints about the interference caused by Canary Wharf tower to television reception in the area, and about noise and dust nuisance suffered by local residents as a result of link road construction.

The full claim never got off the ground. Instead, it has been argued through the courts on preliminary issues.

These include the interest a plaintiff needs to have in a property to mount a private nuisance claim, and whether interference with a television signal is capable of constituting an actionable nuisance.

The judge in the Official Referee's court decided that it was necessary for a plaintiff in an action for private nuisance to have a right to exclusive possession of the affected property, and that interference was capable of constituting an actionable nuisance.

Those decisions were over-turned by the Court of Appeal, which held that the creation or the presence of a building in the line of sight between a television transmitter and another property was not actionable as an interference with the use and enjoyment of land. They also decided that occupation of property as a home provided a sufficiently substantial link to enable the occupier to sue in respect of private nuisance.

The Law Lords have now held that this type of television interference is not actionable as an interference with use and enjoyment of land, and that the right to sue in private nuisance is limited to those with a right to exclusive possession of the relevant property.

As far as Moore is concerned, television interference is the least important of the two points decided.

Canary Wharf tower was built in exceptional circumstances where normal planning rules were relaxed to encourage development. Buildings do not usually affect television reception and planning procedures would normally provide local residents with the necessary protection.

Moore said the decision in respect of proprietary interest and the right to sue in private nuisance is, however, another matter: "This really restricts the law of private nuisance to owners and tenants only. It gives other occupiers no rights to sue," she says. She believes this is a backward step, and a narrow view of the law at a time when the emphasis is on eliminating discrimination.

It could discriminate against people occupying property who may well have a justifiable nuisance complaint, but who, because of their status as mere occupiers rather than tenants or owners, do not have the right to mount an action.