Westlands Estates Ltd and Another v. Swilynn (HK) Ltd

HCA008748/1984

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Deputy Judge Barnett in Chambers.

Date of hearing: 8th February, 1985.

Date of Delivery of Decision: 14th February, 1985.

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DECISION

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Background

1. The 1st plaintiff is the owner of a portion of a road called Westlands Road (the road). The 2nd plaintiff is the owner of land abutting one side of the road and on which it is erecting blocks of residential flats. The 1st and 2nd plaintiffs are associated companies in that both are subsidiaries of Swire Properties Limited.

2. Abutting the road immediately opposite the new flats is a factory building. The defendant is the tenant of units on the ground, 1st and 2nd floor of the factory building. The defendant became tenant of the units in February 1984. At about that time the defendant affixed to the external wall of the factory building two sets of air-conditioning installations supported by steel structures. These installations protrude some 8 feet into the air space above the road.

3. The 1st plaintiff contends that the defendant is trespassing on its rights in and over the road and by reason of the emission of noise and heat from the installations is causing a nuisance which affects the road. The 2nd plaintiff contends that the noise and heat nuisance during the summer months has an adverse affect on the saleability of several flat units opposite to the installations. Both plaintiffs apply under Order 14 for an injunction against the defendant to restrain it from continuing the trespass and for damages to be assessed.

Nuisance

4. In its affidavit in reply, the defendant said that before entering into the tenancy agreement, it had inspected the factory building and seen a number of similar installations erected on the external wall of the building. It said that it knew some of those installations to have been in place for at least 10 years. Accordingly, the 1st plaintiff must be taker. to have acquiesced in or waived its rights in respect of trespass. Both plaintiffs must be taken to have acquiesced in or waived their rights in respect of any emissions which might constitute a nuisance.

5. In respect of nuisance, Miss Eu contented herself with saying that neither waiver nor acquiescence are defences to continuing nuisance.

6. For the defendant, Mr. Yam said that it is necessary to look at all the circumstances in determining whether a person's conduct is interfering with the use and enjoyment of another's land. He pointed out that noise and heat are & natural concomitant of an industrial building. Further there is no evidence as to the degree of noise and heat produced by the defendant's installations. Accordingly it remains arguable that the noise and heat emission are reasonable in all the circumstances.

7. Clearly, the matter is not beyond argument. The defendant must have unconditional leave to defend in respect of nuisance.

Trespass

8. There is no dispute that trespass is actionable per se.

9. Mr. Yam contends that the defendant should have unconditional leave to defend in respect of trespass because there are three good arguable grounds as follows:

Acquiescence and Waiver

10. Miss Eu referred to a heading entitled "Continuing Trespass" which is to be found on page 366 of Winfield on Torts. She suggests that this rebuts any argument in favour of acquiescence or waiver. I confess that I find little enthusiasm for this proposition.

11. However, Winfield then goes on to discuss defences to trespass, the first of which is licence. A man is not a trespasser if he is on land with the permission express or implied of the possesser of that land. Clearly no question of express licence arises in the present case. But it may well be that because of the 1st plaintiff's failure to take action immediately the installations appeared, the defendant is acting under the authority of a bare or gratuitous licence. Such a licence may, of course, be revoked at any time and after revocation the licencee, in this case the defendant, becomes a trespasser although he must be alloyed a reasonable time in which to leave and to remove his property.

12. If a licence has been executed, it cannot be revoked so as to enable the licensor to compel the licensee to undo anything he may have lawfully done under the licence. But this rule only applies where the licence can be construed as authorising the doing of what has been done. It does not apply where there has been mere acquiescence in something which was never authorised before it was done. The authority for this proposition will be found in Canadian Pacific Railway v. the Crown ⁽¹⁾. In that case the Railway was held to have a licence because of long occupation of the land. That licence did not, however, authorise the Railway to place a telegraph system upon the land. The system was placed upon the land in contemplation of certain agreements being reached between the parties although there was no guarantee that such agreements would ever be reached. In the circumstances, the Railway took a risk which subsequently proved not to be justified.

13. In the present case, therefore, I am satisfied that the conduct of the 1st plaintiff has at best given the defendant a bare licence to occupy the air space above its road. That licence was, revoked by letter dated 1st November 1984 written to the defendant by solicitors acting for both plaintiffs. As the installations were never expressly authorised by the 1st plaintiff, the defendant was under a duty to remove those installations after the 1st November.

14. Mr. Yam tried to seek assistance from the case of Cheung Yuet and Anor v. The Incorporated Owners of Oriental Gardens ⁽²⁾. In that case the incorporated owners were attempting to enforce a covenant under a deed of mutual covenant. In finding in favour of the individual flat owner, the Court of Appeal held, inter alia, that the incorporated owners had acquiesced in the particular kind of breach which the owner had committed and it would be inequitable to compel the owner to remove his extension. However, in his judgment at p.541 Leonard, J. said:

15. That case is, I think, very different from the present case where the 1st plaintiff, which has no connection with the defendant, is suing in trespass. Westlands is trying to enforce its own individual rights and protect its own separate property. It has also affirmed through a director that it will be pursuing similar action against other similar installations which it contends trespass in its air space. I am of the opinion, therefore, that this case does not assist Mr Yam.

Implied Grant

16. Both the road and the land upon which the factory building has been erected were once in common ownership. It is not disputed that when the land was assigned by the original owner, it was contemplated that the land would be used for industrial or godown purposes. Mr. Yam contends that there was an implied grant of an easement of necessity in favour of the purchaser of the factory land. It would be necessary for the owner or occupants of the factory building to installexternal air-conditioning units in order properly to use the building.

17. Mr. Yam relies heavily upon the case of Wong v. Beaumont Property Trust Ltd. ⁽³⁾. In that case, a landlord let premises to a tenant who covenanted to use them as a restaurant, to eliminate smells and to comply with health regulations. Unknown to the parties, this could not lawfully be done without installing a proper ventilation system. It was held that the tenant had an easement of necessity to construct such a system, partly on the landlords premises, and to use it. Whilst the facts of that case bear some resemblance to the present case, its importance is that it emphasizes the principle that the necessity must exist at the time of the grant and not merely arise subsequently.

18. In the present case the time of the grant was 1971 when the factory land was assigned to the purchaser. The question that arises, therefore, is whether in 1971 the owner, occupier or tenants of the proposed factory building needed to install external air-conditioning units in order properly and adequately to use the premises as a factory.

19. Whilst no evidence has been led on this point, I have no hesitation in answering the question in the negative. I can take judicial notice of the fact that air-conditioning units abound on the external walls of factory buildings. However, I can also take judicial notice of the fact that many factory units carry on business perfectly well without air-conditioning.

20. In any event, had the factory owner thought air-conditioning to be necessary either for his own purposes or for the tenants whom he hoped to attract, he could presumably have made provision for air-conditioning within the design of the factory building itself.

21. I am satisfied that there is no case for saying that there was an implied grant of an easement in favour of the factory building.

Extent of Air Space

22. The extent to which the owner of land has rights in the air space above that land was canvassed in Bernstein of Leigh (Baron) v. Skyviews and General Ltd. ⁽⁴⁾. In that case, which involved an aircraft, Griffiths, J. held that an owner's rights in the air space above his land are restricted to such height as is necessary for the ordinary use and enjoyment of the land and structures upon it. At p.486 he said:

23. This limits what was previously thought to be a more liberal right. However, Miss Eu contends that the decision does not alter the previous law relating to overhanging structures.

24. Mr. Yam that the English concept of trespass is applicable in Hong Kong. He says, however, that the rules of common law and equity should not be applied rigidly to Hong Kong conditions, but must be modified as circumstances require. For authority he refers to section 3 of the Application of English Law Ordinance, Cap. 88. He suggests that it is not unreasonable to use the external wall of an industrial building in the way in which it has been used by the defendant. He says that it is not in all the circumstances open to the 1st plaintiff to say that the defendant has trespassed over the road.

25. The 1st plaintiff cannot further develop the road. The use of a road must necessarily be limited to the passing and repassing of pedestrians and vehicles. Clearly, the owner of a road needs the rights in the air space above sufficient for this purpose. The defendant's installations appear sufficiently high above the road not to interfere with rights of passage and repassage. It is at least arguable that, in these circumstances, the defendant is not trespassing.

26. I think that the defendant should have unconditional leave also to defend the claim in trespass.

(1)    (1931) A.C. 414

(2)    (1979) H.K.L.R. 536.

(3)    (1965) 1 Q.B. 173.

(4)    (1978) 1 Q.B. 479

Representation:

Miss Audrey Eu instructed by (Johnson, Stokes & Master) for Plaintiffs.

Mr. David Yam instructed by (Y. K. Fung) for Defendant.