Tate & Lyle Industries v Greater London Council [1983] UKHL 2

House of Lords
Between
Tate & Lyle IndustriesAppellantGreater London CouncilRespondent
Date 15 May 1980
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 28th day of May 1982 complained of in the said Appeal be, and the same is hereby, Set Aside so far as regards the words "the First Defendants appeal in the claim be allowed" and in paragraph (4) the words "first and" and in paragraph (6) the words "First and" where they twice precede "Second Defendants" and the word "respective" and the letter "s" in the word "Solicitors": And it is Ordered, That the Orders of Mr. Justice Forbes of 15th May 1980 and 22nd May 1981 be Restored so far as they relate to the First Respondents, with the variations that the damages in. respect of additional dredging costs and interest thereon until the aforesaid Judgment be reduced by 25%: And it is also Ordered, That the Order of the Court of Appeal of the 28th day of May 1912 be Affirmed so far as regards the words "the Second Defendants appeal in the claim be allowed" and the words "judgment be entered for the Second Defendants against the Plaintiffs for their costs of and incidental to legal argument in the claim" and the words "the Second Defendants' Costs of the Appeal and of the Respondents'

HOUSE OF LORDS

TATE & LYLE INDUSTRIES LIMITED

FORMERLY TATE & LYLE FOOD AND DISTRIBUTION

LIMITED

(FORMERLY TATE & LYLE REFINERIES LIMITED) AND OTHERS (APPELLANTS)

v.

GREATER LONDON COUNCIL AND OTHERS (RESPONDENTS)

Lord Diplock Lord Keith of Kinkel Lord Roskill Lord Bridge of Harwich Lord Templeman

Lord Diplock

My Lords,As I have the misfortune to differ in part from the majority of the Appellate Committee I will ask my noble and learned friend, Lord Templeman, to deliver the first speech with which I understand the rest of your Lordships concur.

Lord Templeman

My Lords,

Introduction

Between 1964 and 1966 the first respondent the Greater London Council (then and hereinafter called " the LCC ") in exercise of powers conferred on the LCC by the London County Council (Improvements) Act 1962 and with the approval, required by that Act, of the second respondents, the Port of London Authority (" the PLA "), constructed two new terminals for the Woolwich Ferry in the River Thames.The new ferry terminals consisted of piers which jutted out of the north and south banks of the Thames. The terminals were designed to enable ferry boats carrying vehicles across the Thames to be end loaded. To achieve this object each pier assumed the shape of a letter " J " jutting out first at right angles to the bank and finishing parallel to the bank. There were, however, alternative types of design for the piers and the design chosen by the LCC caused an unforeseen and, as the trial judge Forbes J. found, a largely unnecessary obstruction to the flow of the water in the river. This obstacle combined with the configuration of the Thames in the area of Woolwich reduced the speed of the river flow between the north bank of the river and the main shipping channel up-stream of the terminals; that reduction of speed in turn caused sediment to be deposited and siltation to take place which materially reduced the depth of water between the north bank and the main shipping channel.The first appellants, Tate & Lyle Industries Ltd. (" Tate & Lyle ") have for many years operated a sugar refinery on the north bank of the Thames in Woolwich Reach up-stream of the Woolwich ferry. In 1922 the PLA authorised Tate & Lyle to construct a jetty known as the refined sugar jetty in the bed of the river adjacent to Tate & Lyle's refinery. The depth of the water between the main shipping channel in the Thames and the site of the refined sugar jetty enable small vessels to come alongside the jetty and to load refined sugar for export.The raw sugar required at Tate & Lyle's refinery was discharged from larger vessels lower down the river into barges which were then unloaded at wharves on the banks of Tate & Lyle's land. About 1964 Tate & Lyle conceived the idea of bringing the vessels with raw sugar up the main shipping channel and thence by a dredged channel to a new jetty to be constructed in the river bed adjacent to the bank of Tate & Lyle's land. To accommodate the required vessels at the new jetty it was necessary to dredge a berth six feet below main channel depth. By the Port of London (Consolidation) Act 1920 Tate & Lyle required a licence from the PLA2for the construction of the raw sugar jetty and for the dredging of the channel and berth. On 22nd January 1965 the PLA authorised Tale & Lyle to carry out the necessary dredging of the channel and berth and on the 30th April 1965 the PLA authorised the construction of the raw sugar jetty.The terminals for the Woolwich ferry were completed for the LCC and the raw sugar jetty was completed for Tate & Lyle in 1966. At the trial of this action Forbes J. held, and it is not now disputed, that the effect of the terminals was to cause siltation of the channels and berth dredged for the purposes of the raw sugar jetty and to cause siltation of the bed of the river between the refined sugar jetty and the main channel. In the result, vessels carrying raw sugar could not approach and be unloaded at the raw sugar jetty and vessels which had formerly loaded and departed with refined sugar from the refined sugar jetty could no longer do so. To enable both jetties to be operated Tate & Lyle with the consent of the PLA incurred additional dredging costs between 1967 and 1974 of £344,998 to enable the raw sugar jetty to be kept in operation and £195,002 to enable the refined sugar jetty to be kept in operation making total additional dredging costs of £540.000. Additional dredging ceased to be necessary after 1974 because the PLA made major alterations to the shipping channel of the River Thames which had the effect of putting an end to the siltation caused by the new terminals in the river bed between Tate & Lyle's jetties and the main shipping channel.The learned judge also held, and U is not now disputed, that the civil engineers who designed the terminals on behalf of the LCC should have realised that the terminals might cause substantial siltation and should have taken expert advice which would have resulted in a different design for the piers. This would have reduced the siltation caused by the terminals and only involved Tate & Lyle in 25% of the additional dredging costs which they incurred.In these proceedings Tate & Lyle claim £540,000 representing the total of the additional costs of dredging made necessary as a result of the construction of the Woolwich ferry terminals. Tate & Lyle claim against the LCC for causing the siltation and against the PLA for approving the plans for the terminals which were responsible for the siltation. The facts were exhaustively investigated at the trial; they were admirably elucidated by Forbes J. in his judgment at first instance, when he found substan- tially in favour of Tate & Lyle: the facts were subsequently summarised in the judgment of Oliver L.J. in the Court of Appeal where the LCC and the PLA succeeded in obtaining a dismissal of all the claims put forward by Talc & Lyle. The question is whether upon the established facts and upon the true construction and effect of the London County Council (Improve- ments) Act 1962, the Port of London (Consolidation) Act 1920 and the Port of London Act 1968, the LCC and the PLA or either of them are liable to Tate & Lyle in negligence or nuisance for the whole or part of the cost of the additional dredging made necessary by the effect of the Woolwich terminals on the flow of the River Thames in front of Tale & Lyle's land.

Negligence

The claim of Tate & Lyle in negligence was first put with engaging simplicity on the grounds that the LCC and the PLA owed a duty to take reasonable care not to cause loss or damage to Tale & Lyle of a kind which the LCC and the PLA could reasonably foresee. It was reasonably foresee- able that in order to carry on their business. Tale & Lyle would be obliged to incur the additional cost of dredging if the terminals were not designed to cause the minimum amount of siltation in the river bed and foreshore in the neighbourhood of Tale & Lyle's jetties.The argument derives from the well known passage in the speech of Lord Atkin in Donoghue v. Stevenson [1932] AC 562 at p.580, namely that " You must take reasonable care to avoid acts or omissions which " you can reasonably foresee would be likely to injure your neighbour ",3that is to say, " persons who are so closely and directly affected by my act " that I ought reasonably to have them in contemplation as being so affected " when I am directing my mind to the acts or omissions which are called " in question." Donoghue v. Stevenson was a case where it was assumed that injury to health had been suffered by a consumer as a result of a defect in a product supplied by a manufacturer.In Dorset Yacht Co. v. Home Office [1970] AC 1004 the Home Office was held liable in negligence for damage to the plaintiff's property caused by absconding Borstal boys. Lord Reid at p. 1026 said:
"... there has been a steady trend towards regarding the law of " negligence as depending on principle . . . and the well-known passage " in Lord Atkin's speech should I think be regarded as a statement " of principle. It is not to be treated as if it were a statutory definition. " It will require qualification in new circumstances. But I think that " the time has come when we can and should say that it ought to " apply unless there is some justification or valid explanation for its " exclusion. For example, causing economic loss is a different matter; " for one thing, it is often caused by deliberate action. Competition " involves traders being entitled to damage their rivals' interests by " promoting their own, and there is a long chapter of the law determining " in what circumstances owners of land can and in what circumstances " they may not use their proprietary rights so as to injure their " neighbours. But where negligence is involved the tendency has been " to apply principles analogous to those stated by Lord Atkin."
In Anns v. Merton London Borough [1978] AC 728 a local authority which failed to exercise reasonable care in carrying out its statutory powers and duties in the inspection and approval of the foundations of a house was held to be liable in negligence to a subsequent purchaser of the house when the house suffered damage as a result of defective foundations. My noble and learned friend Lord Wilberforce at p.751 said that:
" The position has now been reached that in order to establish that " a duty of care arises in a particular situation, it is not necessary to " bring the facts of that situation within those of previous situations " in which a duty of care has been held to exist. Rather the question " has to be approached in two stages. First, one has to ask whether, " as between the alleged wrongdoer and the person who has suffered " damage there is a sufficient relationship of proximity or neighbourhood " such that, in the reasonable contemplation of the former, carelessness " on his part may be likely to cause damage to the latter—in which " case a prima facie duty of care arises. Secondly, if the first question " is answered affirmatively, it is necessary to consider whether there " are any considerations which ought to negative, or to reduce or limit " the scope of the duty or the class of person to whom it is owed or " the damages to which a breach of it may give rise."
In Junior Books Ltd. v. Veitchi Co. Ltd. [1982] 3 WLR 477 a sub- contractor was held liable to the owner of premises for damaging those premises by installing a defective floor. My noble and learned friend Lord Roskill rejected the argument that the only remedy for the owner of the premises was to sue the main contractor for breach of contract. He said at p.494:" The proper control lies not in asking whether the proper remedy " should lie in contract or instead in delict or tort, not in somewhat " capricious judicial determination whether a particular case falls on " one side of the line or the other, not in somewhat artificial distinctions " between physical and economic or financial loss when the two " sometimes go together and sometimes do not—it is sometimes over- " looked that virtually all damage including physical damage is in one " sense financial or economic for it is compensated by an award of " damages—but in the first instance in establishing the relevant " principles and then in deciding whether the particular case falls " within or without those principles . . . The first is ' sufficient4
" ' relationship of proximity ', the second any considerations negativing, " reducing or limiting the scope of the duty or the class of person " to whom it is owed or the damages to which a breach of the duty " may give rise."
My Lords,in the cited relevant cases from Donoghue v. Stevenson (above) to Junior Books (above) the plaintiff suffered personal injury or damage to his property. In the present case Tate & Lyle assert that they have suffered damage to their property caused by interference with their right to use their jetties for the benefit of their sugar refining business. But this assertion assumes that Tate & Lyle possess the right to use their jetties in the sense that they are entitled to the maintenance of a depth of water in the relevant parts of the Thames sufficient to enable vessels of the requisite size to load and unload at the jetties. The question is whether Tate & Lyle possess any right to any particular depth of water. If they have any such right then they will have a remedy for interference with that right. But if they have no such right then interference with the depth of water causing damage to Tate & Lyle's business constitutes an injury for which Tate & Lyle have no remedy. The LCC caused siltation to the bed of the river which is owned by the PLA. Tate & Lyle can only succeed if they establish they were obstructed by the LCC in the exercise by Tate & Lyle of rights over the river bed vested in Tate & Lyle.On behalf of Tate & Lyle it was submitted that the requisite rights over the river bed are vested in Tate & Lyle firstly as riparian owners, secondly by contract constituted by the licences granted by the PLA and thirdly as members of the public suffering particular damage from interference with the public right of navigation on the Thames.

Riparian rights

Tate & Lyle are riparian owners because they own part of the northern bank of the Thames. As riparian owners Tate and Lyle are entitled to access to the water in contact with their frontage, and to have the water flow to them in its natural state in flow, quality and quantity so that they may take water for ordinary purposes in connection with their riparian tenement including the use of water power. The siltation caused by the terminals did not obstruct the access from Tate & Lyle's land to the water, did not constitute any danger of damage to the land, and did not create any nuisance to the occupier of the land. The siltation caused a decrease in the depth of water between Tate & Lyle's land and the main shipping channel. Tate & Lyle claim that their riparian rights include the right to the maintenance of the depth of water existing before the terminals were constructed. It seems to me this argument confuses private riparian rights with the public right of navigation. It is not clear to me whether Tate & Lyle's claim to the maintenance of the status quo with regard to the depth of water extended to the whole of the river from Tate & Lyle's bank on the north to the bank opposite on the south, or whether it was confined to the depth of water between Tate & Lyle's bank and the main shipping channel, or to some other area of the bed and foreshore of the Thames. On principle, I cannot accept that a riparian owner has any power to object to an alteration to the depth of the water which does not threaten to cause damage to his land or to interfere with his acknowledged riparian rights or to cause a nuisance to the occupier of his land. The effect of the siltation was to obstruct the passage of vessels between the main shipping channel and Tate & Lyle's land. The obstruction constituted an interference with the public right of navigation for which Tate & Lyle have a remedy but the obstruction did not constitute an interference with Tate & Lyle's riparian rights. Tate & Lyle relied on general statements of the rights of riparian owners to support their submission that as riparian owners they can prevent any interference with the depth of water. In Bickett v. Morris (1866) L.R.I Sc. & Div. 47, a riparian owner who owned part of the bank of a non-navigable river also owned half of the land of the river from his bank to the centre of the stream. He built a wall on part of his half of the bed of the river. The riparian owner on the opposite bank5obtained an injunction requiring the wall to be removed. Lord Chelmsford L.C. at p.55 said that
" The proprietors upon the opposite banks of a river have a common " interest in the stream, and although each has a property in the " alveus from his own side to the medium filum fluminis, neither is " entitled to use the alveus in such a manner as to interfere with the " natural flow of the water . . . neither proprietor can have any right " to abridge the width of the stream, or to interfere with its regular " course; but anything done in alveo, which produces no sensible " effect upon the stream, is allowable."
Lord Cranworth at p.59 said that riparian proprietors have a common interest in the unrestricted flow of the water and may forbid any interference with it. Lord Westbury at p.62 said that
" Though immediate damage cannot be described, even though the " actual loss cannot be predicated, yet, if an obstruction be made to the " current of the stream, that obstruction is one which constitutes an " injury which the courts will take notice of, as an encroachment which " adjacent proprietors have a right to have removed."
In Bickett v. Morris the court assumed that the wall of the defendant might cause damage to the riparian tenement of the plaintiff by erosion resulting from the diversion of the flow of water by the wall. The court will only interfere if there is " an injurious obstruction", per Lord Chelmsford L.C. at p.56. In my opinion Bickett v. Morris is not authority for the proposition that a riparian owner can complain of a decrease in the depth of water when the only effect of that decrease is to obstruct the public right of navigation.The distinction between private riparian rights and the public right of navigation is of great importance with regard to the River Thames because the PLA have statutory power to interfere and to authorise works which interfere with the public right of navigation provided that the PLA consider that the works are necessary or desirable in the general interests of improving the facilities furnished by the Thames. On the other hand, the PLA are not entitled by statute to interfere with established riparian or other private rights.Section 9 of the Port of London (Consolidation) Act 1920 imposed on the PLA the duty " to take such steps from time to time as they may " consider necessary for the improvement of the River Thames within the " Port of London and the accommodation and facilities afforded in the " Port of London and for these purposes " the PLA were expressly authorised to construct jetties or piers and other works which, from their very nature, might cause some alteration to or interference with the public right of navigation in the neighbourhood of the works. Section 243 of the Act authorised the PLA to grant to any owner or occupier of any land adjoining the Thames a licence to make any pier, jetty, wharf or embankment wall or other work immediately in front of his land and into the body of the Thames, and again any such work by its nature might alter or interfere with the public right of navigation in the neighbourhood. If, in a bona fide exercise of its statutory powers, the PLA caused or authorised any work which interfered with the public right of navigation, then no action would lie in respect of that interference which was impliedly authorised by the statute. But section 307 of the Act provided that nothing " shall take away, " alter or abridge any right, claim, privilege ... to which any owner or " occupier of any lands on the banks of the Thames ... or any person " is now by law entitled . . . but the same shall remain and continue in full " force and effect as if this Act had not been passed." Thus the owner of a riparian tenement can object to any work carried out by the PLA or by any licensee of the PLA, if the work interferes with his riparian rights. If Tate & Lyle's contentions are right, however, every work which interferes with the flow or depth of the water and creates an interference with the public right of navigation must also be an interference with riparian rights6and will entitle a riparian owner to an injunction or damages. The authorities do not support this confusion between riparian rights and the public right of navigation.In Kearns v. The Cordwainers' Company (1859) 6 C.B.(N.S.) 388, the Thames Conservators, who were the predecessors of the PLA, had licensed the erection of a jetty pursuant to section 53 of the Thames Conservancy Act 1857, which corresponded to section 243 of the 1920 Act. The 1857 Act also contained a reservation of private rights in section 179 in terms similar to the provisions of section 307 of the 1920 Act. It was held that the Thames Conservators had power to license the jetty albeit that it might in some degree obstruct the enjoyment by adjoining owners of full and free navigation of the river.In Attorney-General v. Thames Conservators (1862) 1 H. & M. 1, the court refused to prohibit by injunction the erection of a pier licensed by the Thames Conservators, although the pier made more difficult the passage of vessels to and from the wharves of a neighbouring landowner. At p.31 Page-Wood V.C. distinguished between the private right of access which belonged to the landowner in respect of his wharves and the public right of navigation. The private right of access had not been taken away and no complaint could be made of interference with the public right of navigation.In Lyon v. The Fishmongers' Company (1876) 1 App. Cas. 662, the Thames Conservators purported to exercise their undoubted power to license the construction of an embankment which interfered with the public right of navigation. The embankment, however, would have destroyed the plaintiff's frontage to the river and prevented him from obtaining access to the river. The plaintiffs private riparian rights were, therefore, injured. The Conserva- tors had no power to authorise any such injury and the defendants were restrained from constructing the embankment. Tate & Lyle rely on the passage from the speech of Lord Cairns at p.673 where he cited with approval the statement of Lord Wensleydale in Chasemore v. Richards 7 H.L.C. 382 that
" it has been now settled that the rights to the enjoyment of a natural " stream of water on the surface, ex jure naturae, belongs to the " proprietor of the adjoining lands, as a natural incident to the right to " the soil itself, and that he is entitled to the benefit of it, as he is to all " the other natural advantages belonging to the land of which he is the " owner. He has the right to have it come to him in its natural state, in " flow, quantity, and quality, and to go from him without obstruction; "... the riparian owner on a navigable river, in addition to the right " connected with navigation to which he is entitled as one of the public, " retains his rights, as an ordinary riparian owner, underlying and " controlled by, but not extinguished by, the public right of navigation."
But there remains the distinction between private riparian rights and the public right of navigation. In Lyon v. The Fishmongers' Company (above), the works in question interfered with private riparian rights. The works could not be justified on the grounds that they also interfered with or improved the public right of navigation. In the present case the only interference which has been proved is interference with the public right of navigation. Tate & Lyle's land and Tate & Lyle's riparian rights are not affected.The LCC and the PLA submitted in the alternative that in any event riparian rights do not attach to Tate & Lyle's jetties. Tate & Lyle claim that the jetties must be regarded as extensions to Tate & Lyle's land, albeit that the jetties are structures erected on the bed of the river which belongs to the PLA and not to Tate & Lyle. I do not consider that riparian rights attach to the jetties.The jetties were constructed pursuant to a licence granted by the PLA under section 243 of the Port of London (Consolidation) Act 1920. That section, to which reference has already been made, authorised the PLA to7grant to any owner or occupier of any land adjoining the Thames a licence to make a jetty immediately in front of his land and into the body of the Thames. In the case of the raw sugar jetty (and we are informed in the case also of the refined sugar jetty), the relevant licence authorised Tate & Lyle to construct a specified jetty in the River Thames off the refinery premises of Tate & Lyle subject to the express condition that Tate & Lyle would remove the jetty on seven day's notice. It seems to me that a jetty thus erected on the foreshore of the Thames vested in the PLA was only a chattel and not realty forming part of the bank of the river belonging to Tate & Lyle, and that such a jetty is not capable of attracting riparian rights. The Court of Appeal, reversing Forbes J. said, and I agree, that the jetties " are not part of the " riparian tenement, although they are connected to it. They are artificial " structures put into the stream under licence and built, not upon the land " of the riparian owner, but upon that of the PLA. Riparian rights are " rights attaching to the fee simple of the land ex jure naturae and it is not " easy to see how, at common law, they can become attached to something " which is not part of the fee simple and of which the riparian owner has " nothing but a permissive and revocable enjoyment."

Contractual rights

In default of riparian rights Tate & Lyle rely on contractual rights. They assert that the PLA granted and the LCC infringed the right of Tate & Lyle to the maintenance of the depth of water created by Tate & Lyle's licensed dredging which enabled the refined sugar jetty and the raw sugar jetty to be operated for the loading and unloading of vessels. In the licences granted by the PLA for the erection of the jetties, however, there was no express grant of a right to use the jetties for loading or unloading vessels of any specified draught. The PLA granted a separate licence for Tate & Lyle to dredge a channel leading to the jetties and to dredge a berth at the raw sugar jetty of a specified depth, but that dredging licence was no more than a dredging licence, and did not grant Tate & Lyle any rights in relation to the river bed, or to the river once the dredging had been carried out. Tate & Lyle could not even remove any silt which subsequently to the initial dredging by any means accumulated without a further licence from the PLA. Tate & Lyle had no right to any depth of water and no right other than the public right of navigation to bring vessels from the shipping channel to their jetties. Tate & Lyle had the right to moor, load and unload vessels at the refined sugar jetty and in the berth dredged at the raw sugar jetty because Tate & Lyle were the owners of authorised jetties, but the right to moor, load and unload did not confer any right or any guarantee as to the maintenance of any specified depth of water for the accommodation of vessels of any particular size.Tate & Lyle claim that their contractual rights were transformed by the Port of London Act 1968 which replaced the Port of London (Consolidation) Act 1920. The licences for the construction of the refined sugar jetty and the raw sugar jetty were granted by the PLA to Tate & Lyle pursuant to section 243 of the 1920 Act. By paragraph (h) of Schedule 11 to the 1968 Act all licences issued by the PLA in force at the commencement of the Act on the 26th July 1968 " shall continue in force and shall be deemed to have been " made or issued under the appropriate provisions of this Act." Power for the PLA to license jetties and other works is contained in section 66(1)(a) of the 1968 Act. By section 66(1)(b) , a works licence to construct or retain works in, under or over land belonging to the PLA shall be deemed to confer on the holder of the licence " such rights in, under or over land as are " necessary to enable the holder of the licence to enjoy the benefit of the " licence." On behalf of Tate & Lyle, it was argued that the effect of section 66(1) (b) on the licences to erect the jetties was to confer on Tate & Lyle the right to a sufficient depth of water to enable Tate & Lyle to operate the jetties. Without a sufficient depth of water, Tate & Lyle would not be able to enjoy the benefit of the jetty licences. But the jetty licences only granted authority for Tate & Lyle to erect and maintain the structures in the River Thames now known as the refined sugar jetty and the raw sugar jetty. For the purpose of erecting and maintaining the jetties, Tate & Lyle are8entitled by virtue of section 66(l) (b) to exercise such rights over the bed and water of the river as are necessary to ensure that the jetties are installed and kept in good repair. In my view, section 66(1) (b) did not confer on Tate & Lyle any rights to the maintenance of any particular depth of water near or leading to the jetties.It was faintly argued that in the licences for the jetties and for the dredging of the channel and berth in connection with the raw sugar jetty there must be implied a term that the PLA would not allow any interference with the Thames which would cause siltation. Alternatively, the PLA derogated from their grant of the licences when they failed to prevent the erection of the terminals which caused siltation. In my opinion, the PLA had no statutory power to agree, and did not purport to agree, expressly or impliedly, that no works would be allowed which affected the depth of water in the Thames between the jetties and the main shipping channel.I consider that Tate & Lyle cannot maintain an action in negligence because they did not possess any private rights which enabled them to insist on any particular depth of water in connection with the operation of their licensed jetties.

Private nuisance

An action in private nuisance must also fail if Tate & Lyle have no private rights in connection with the depth of the River Thames. The siltation caused by the LCC did not interfere with Tate & Lyle's use and occupation of the jetties but with Tate & Lyle's use of the River Thames. Tate & Lyle rely on the decision in Booth v. Ratte (1890) L.R. 15 A.C. 188. In that case the plaintiff was a riparian owner who constructed a floating wharf and warehouse moored to his bank of the river. The defendant operated a saw mill upstream of the plaintiff's land and polluted the river with sawdust, bark and other refuse which were deposited in front of the plaintiff's wharf and warehouse. The refuse resulted" not only in fouling the water, making it offensive both to taste and " smell, but produce from the gas generated underneath the surface " frequent explosions which are disagreeable and sometimes dangerous. " It is thus proved that the plaintiff sustains special injury beyond " the rest of the public by this unauthorised interference of the " defendant's with the flow and purity of the stream. He is injured in " the personal enjoyment of the property and the river, and he is injured " in the business which he follows of hiring and housing pleasure " boats": page 190.The only defence was that the plaintiff had no title to the wharf and boathouse. It was held that the plaintiff was either the owner of part of the river bed upon which the wharf and boathouse were placed or was a licensee. Either title sufficed to enable the plaintiff to maintain an action based on damage or threatened damage to the wharf and to recover damages in private nuisance or public nuisance for damage to his business carried on upon his land, wharf and warehouse caused by smell and impurity of water. In Booth v. Ratte the plaintiff was claiming to be left undisturbed in the use and occupation of the wharf and boathouse which he occupied. He was not claiming any rights over the river. In the present case nothing has happened to disturb the possession by Tate & Lyle of their jetties. Tate & Lyle complain of interference with their use of the bed of the River Thames. They must prove some private right over the bed of the River Thames before they can complain that the siltation of the bed and consequent decrease of the depth of the water constitute an actionable infringement of their private rights whether in negligence or in nuisance.

Public nuisance

The Thames is a navigable river over which the public have the right of navigation, that is to say, a right to pass and re-pass over the whole width and depth of water in the River Thames and the incidental rights of loading9and unloading. The public right of navigation was expressly preserved by section 210 of the Port of London (Consolidation) Act 1920 whereby" (1) Subject to the provisions of this Act it shall be lawful for all " persons whether for pleasure or profit to go and be, pass and re-pass in " vessels over or upon any and every part of the Thames through which " Thames water flows ....".The construction of the ferry terminals interfered with the public right of navigation over the Thames between the main shipping channel and Tate & Lyle's jetties by causing siltation on the bed and foreshore of the river and siltation in the channel and berth dredged by Tate & Lyle. This interference with the public right of navigation caused particular damage to Tate & Lyle because vessels of the requisite dimensions were unable to pass and re-pass over the bed and foreshore between the main channel and the refined sugar jetty and vessels of the required dimensions were unable to pass and re-pass over the channel dredged by Tate & Lyle between the main shipping channel and the raw sugar jetty and could not be accommodated in the berth dredged by Tate & Lyle adjacent to the raw sugar jetty.An individual who suffers damage resulting from a public nuisance is, as a general rule, entitled to maintain an action. In the present case the LCC and the PLA assert that in constructing the ferry terminals the LCC were acting in pursuance of statutory authority contained in the London County Council (Improvements) Act 1962 and the Port of London (Consolidation) Act 1920, and the combined effect of those two Acts was to authorise the interference with the public right of navigation which was in fact caused by the construction of the ferry terminals. There was therefore no public nuisance and Tate & Lyle have no cause of action in respect of any public nuisance.In the alternative, it is argued, Tate & Lyle's damages based on public nuisance must be limited to damages suffered in connection with the refined sugar jetty. The plans of the LCC for the ferry terminals were approved in 1964. The licences to Tate & Lyle granted by the PLA to construct the raw sugar jetty and to dredge the channel and berth required for the raw sugar jetty were not granted until 1965. Tate & Lyle, it is submitted, have no right of action in respect of the raw sugar jetty which was constructed after the plans for the ferry terminals were approved and contemporaneously with the construction of the ferry terminals.

Statutory authority

The LCC plead that if they were guilty of creating a public nuisance they are nevertheless excused because they were authorised by the London County Council (Improvements) Act 1962 to carry out the operations of which complaint is made. They were authorised by statute to construct the terminals in accordance with a design approved by the PLA and not otherwise.The defence of statutory authority to an action for nuisance was summarised in the speech of my noble and learned friend, Lord Wilberforce, in Allen v. Gulf Oil Refining Ltd. [1981] AC 1001 at 1011 as follows:
" It is now well settled that where Parliament by express direction " or by necessary implication has authorised the construction and use " of an undertaking or works, that carries with it an authority to do " what is authorised with immunity from any action based on nuisance. " The right of action is taken away: ... To this there is made the " qualification, or condition, that the statutory powers are exercised " without ' negligence'—that word here being used in a special sense " so as to require the undertaker, as a condition of obtaining immunity " from action, to carry out the work and conduct the operation with " all reasonable regard and care for the interests of other persons ..."
In the present case Parliament authorised the terminals and thereby granted immunity from the consequences of the terminals provided that the10LCC paid " all reasonable regard and care for the interests " of public navigation and for the interests of Tate & Lyle liable to suffer particular damage from any interference with the right of public navigation.The LCC submit that in designing the terminals their only obligation was to obtain the approval of the PLA. If their design did not protect, so far as possible, the interests of the public and of Tate & Lyle, the 1962 Act nevertheless authorised the LCC to construct the terminals in accordance with the design approved by the PLA and not otherwise. If in constructing the terminals the LCC had themselves discovered some defect injurious to the LCC, the public or private individuals, the LCC would not have felt justified in completing the construction of the terminals without obtaining authority to amend the design. I would be reluctant to find that the 1962 Act had the effect of enabling the LCC negligently to inflict unnecessary damage on the public or on any individual provided the PLA negligently or without negligence approved a design which caused that damage.Section 17(1) of the London County Council (Improvements) Act 1962 provided that the LCC " may, in the lines or situations and within " the limits of deviation shown on the deposited plans and according " to the levels shown on the deposited sections, execute the works " described in subsection (2) of this section ". Subsection (2) authorised " Work No. 10. A new pier of openwork construction partly on land and " partly over the River Thames, commencing by a junction with Pier Road, " North Woolwich . . . and terminating by a rising and falling stage or " platform eighty-seven yards from the northern river wall." Work No. 11 was described as " A new pier of openwork construction over the " River Thames . . . terminating by a rising and falling stage or platform " eighty-seven yards northwards of the river wall . . . ".Section 17 does not expressly or by implication confer immunity on the LCC from an action based on public nuisance in respect of damage which was avoidable by " all reasonable care and regard for the interests of other "persons". Section 17 gave immunity from an action in respect of the siltation which proved to be inevitable but not in respect of the additional siltation which resulted from the LCC's choice of a design which caused additional siltation, from the failure of the LCC to consider the effect of the design and failure to take available advice which could and would have resulted in an amended design fulfilling the objects of the LCC without unnecessary damage to Tate & Lyle.The LCC rely on section 50 of the 1962 Act. That section is expressed to be " For the protection of the [PLA] and river users . . . ". The section was not therefore intended to confer any immunity on the LCC, least of all an immunity from any failure by the LCC to have " reasonable regard " and care for the interests of other persons ". Section 50 was intended as an additional and not as a substitute protection for river users. Section 50 provides that the section shall apply and have effect " unless otherwise " agreed in writing " between the LCC and the PLA. Parliament could not have intended that the LCC should be intentionally or accidentally relieved of liability to take reasonable regard and care by an agreement in writing with the PLA. Section 50(3) (a) requires that the LCC "Before " commencing to execute any river works under the powers of this Act . . . " shall submit to the [PLA] plans, sections and particulars of the river " works for their reasonable approval (which approval may be given subject " to such reasonable requirements as to the construction of works for the " purpose of protecting navigation of the river as the [PLA] may make)" . . . ".This requirement on the LCC did not transfer to the PLA the duty to ensure that the design of the terminal would not cause unnecessary siltation nor did it relieve the LCC of that duty. If, from the plans, sections and particulars it appeared to the PLA that some avoidable obstruction to navigation would result from the construction of the terminals, the PLA could require the LCC to make amendments or to provide adequate safe- guards or take preventative measures. But the PLA were entitled to assume11that the LCC had chosen a competent designer who would take care to see the design did not have any unnecessary adverse effect. The plans, sections and particulars might not alert the PLA to the danger that the design chosen by the LCC, as opposed to other possible designs, would cause unnecessary siltation. By section 50(3) (b) if the PLA did not, within 28 days of the submission to them of any plans, sections or particulars, intimate to the LCC their approval or disapproval they shall be deemed to have approved the same. This limitation on the powers of the PLA is another indication that section 50 was not intended to confer some new immunity on the LCC. Moreover, section 50(9) imposed on the LCC the duty to " bear and pay any additional cost to which the [PLA] may be put " in dredging the river as a result of any accumulation of mud or silt which " may occur in consequence of the construction by the [LCC] under the " powers of this Act of any river work ". The PLA could, therefore, in approving any plans submitted by the LCC take into consideration the fact that any siltation. whether siltation which was inevitable in any event or whether siltation attributable to the particular design chosen by the LCC, could be remedied at the expense of the LCC. Indeed, the present expensive litigation has only been caused by the adamant and unsuccessful contention by the LCC that it was a mere coincidence that the construction of the terminals was followed by substantial and continued siltation of the neighbouring bed of the Thames between Tate & Lyle's refinery and the main shipping channel.In my view section 50 did not confer on the LCC any immunity from suit and in particular did not relieve the LCC of its duty to design the terminals " with all reasonable care for the interests of other persons ".In the alternative, the LCC submit that the effect of section 50(3) (a) of the London County Council (Improvements) Act 1962 was to confer on the LCC all the immunity enjoyed by a licensee authorised to construct works by the PLA under section 243 of the Port of London (Consolidation) Act 1920. Section 243 of the 1920 Act, authorised the PLA "for a fair and " reasonable consideration . . . and upon such terms and subject to such " restrictions as they think proper grant to any owner or occupier of any " land adjoining the Thames a licence ... for the making of any dock " basin pier jetty wharf bank quay, or embankment wall or other work " immediately in front of his land and into the body of the Thames." The terminals were not, in fact, constructed pursuant to a licence granted by the PLA under section 243. The terminals were constructed pursuant to the powers contained in the London County Council (Improvements) Act 1962. But. it is submitted, by section 50(3) (a) of the 1962 Act, the terminals are deemed to have been constructed under a licence from the PLA given under section 243 of the 1920 Act. Section 50(3) (a) of the London County Council (Improvements) Act 1962 provides that the river works executed by the LCC " shall be deemed to be works upon the bed " or shores of the river commenced or executed under the direction or with " the licence, consent or permission of the [PLA] within the meaning of " section 244 ... of the Port of London (Consolidation) Act 1920." Section 244 of the 1920 Act requires that " No works upon the bed or shores of " the Thames shall at any time be commenced or executed under the " direction or with the licence consent or permission of the [PLA] without " such works having been previously approved of by the Board of Trade "... or if such approval be not previously obtained without proper " conditions being made to provide for the immediate removal of all such " works upon notice from the Board of Trade . . . requiring the same to " be removed."Section 50(3) (a) of the 1962 Act therefore in practice made necessary the approval of the Board of Trade as well as the approval of the PLA to the plans for the terminals. On behalf of the LCC it was submitted that section 50(3) (a) had a wider effect and impliedly gave the LCC the immunity afforded by a licence granted by the PLA under section 243 of the 1920 Act. The authorities to which reference has already been made, in particular. Kearns v. The Cordwainers' Company (1859) 6 C.B.(N.S.) 388,12and Attorney-General v. Thames Conservators (1862) 1 H & M. 1, show that no action will lie for an interference with the public right of navigation caused by works licensed by the PLA under section 243.In my opinion section 50(3) (a) is not apt to create a licence or to deem a licence under section 243 of the 1920 Act. Section 50(3) (a) of the 1962 Act sufficed to introduce and was intended to introduce section 244 of the 1920 Act, but is inconsistent with the introduction of section 243, which could have been expressly introduced if Parliament had wished to do so. Moreover, reading section 50 as a whole, and for the reasons already advanced, that section does not appear to me either apt nor intended to confer immunity on the LCC from actions based on public nuisance merely because the plans for the terminals required the approval of the PLA unless otherwise agreed.The Court of Appeal held that there was " no duty upon the LCC to " consider anyone else's interest in siltation " because section 50 of the 1962 Act contemplated that the PLA could inspect the design of the terminals and could nullify the effects of any siltation at the expense of the LCC. At the same time the Court of Appeal held that there was no duty upon the PLA to ensure that the design of the terminals produced the minimum siltation, and no duty to nullify the effects of siltation. Thus the statute conferred immunity from unnecessary siltation causing unnecessary adverse effects on third parties such as Tate & Lyle. I decline to construe section 50 of the 1962 Act so as to relieve the LCC from any elementary duty to cause no more harm than was necessary.

The PLA

The action of Tate & Lyle against the PLA can only succeed if the PLA by their negligence bear some responsibility for the faulty design of the terminals.The learned judge, Forbes J., appears to have assumed that the responsi- bilities of the LCC and the PLA were the same. He said:
" It is quite clear to me that although the PLA gave some considera- " tion to the possible effect on siltation at the time when the case for " the 1962 Bill was being prepared, thereafter neither the consulting " engineers nor the PLA gave any serious thought to what might " happen to the river as a result of the intrusion of these structures " into it. ... Although there was frequent consultation with the PLA " during the design process this was, in my view, no more than one " would expect to occur when designers have to obtain the approval " of some authority for the work being designed, particularly where, " as here, interference with navigation was obvious and the authority " was a navigation authority."
But " interference with navigation was obvious " only in the sense that the terminals jutted out into the Thames and in the course of construction and after construction required warnings and other precautions against collisions." Interference with navigation was obvious" with regard to siltation only in the sense that any obstruction may cause siltation, and that possibility was responsible no doubt for the inclusion in the Act of section 50(9) whereby the LCC assumed responsibility for any additional cost of dredging. Your Lordships were not, however, referred to any fact or circumstances which should have alerted the PLA to the possibility that the terminals might unnecessarily cause the unforeseen and disastrous amount of siltation which took place. There was nothing which would have justified the PLA in insisting on the design being submitted to further advice, or subjected to tests to determine the possible effects of the terminals on siltation. There was no reason for the PLA to suspect that the consulting engineers employed by the LCC had not produced a design which would only result in the minimum and inevitable amount of siltation. The learned judge thought the PLA were thirty per cent to blame, but in my view, they are not liable to Tate & Lyle.13On behalf of Tate & Lyle it was submitted that the PLA had " continued " the nuisance created by the terminals. In Sedleigh-Denfield v. O'Callaghan [1940] AC 880 , a culvert was laid by a trespasser on the defendant's land and caused flooding to the plaintiff's land. It was held that the defendant having acquired knowledge of the existence of the culvert in time to appreciate the danger involved and to take remedial action was liable for continuing the nuisance created by the culvert. Viscount Maugham at page 894 said:
" In my opinion an occupier of land ' continues' a nuisance if with " knowledge or presumed knowledge of its existence he fails to " take any reasonable means to bring it to an end though with " ample time to do so. He ' adopts' it if he makes any use of the " erection, building, bank or artificial contrivance which constitutes the " nuisance."
In the present case the approval of the plans of the terminals by the PLA did not in my opinion continue or adopt or otherwise make liable the PLA for any nuisance created by the terminals. By approving the plans the PLA did not guarantee that the terminals would not interfere with the right of public navigation nor did they guarantee that the terminals would not interfere with the right of public navigation more than was necessary.

Measure of damages

The cost of the additional dredging required to remedy the siltation caused by the terminals was £540,000. The learned judge found that an alternative design could, and should, have been adopted and that " if such " a design had been adopted it would have resulted ... in only one- " quarter of the accretion " caused by the design which was in fact selected. One-quarter of the cost of the additional dredging was the inevitable consequence of the exercise by the LCC of its statutory power to construct the terminals; one-quarter of the additional dredging costs is therefore not recoverable by Tate & Lyle.On behalf of Tate & Lyle it was urged that the terminals as constructed created an unauthorised interference with the right of public navigation, and that the LCC are responsible for all the consequences of that interfer- ence, and not only for three-quarters of the cost of the additional dredging. I cannot accept that argument. To maintain the public right of navigation, Tate & Lyle would have been bound to carry out some additional dredging in any event, and their damages are the cost of dredging which would have been avoided if the terminals had been designed to avoid siltation as much as possible. Tate & Lyle claim that if the design of the terminals had only caused one-quarter of the siltation which in fact occurred, then the PLA might have undertaken the additional dredging and recovered the cost from the LCC. This is speculation and the fact is that the LCC adamantly maintained that the terminals were not responsible for any siltation.In these circumstances I am of the opinion that Tate & Lyle are entitled to recover from the LCC the sum of £405,000 representing three-quarters of the additional dredging caused by the terminals.

The raw sugar jetty

The licences for the construction of the raw sugar jetty and for the dredging of the channel and berth necessary to allow vessels to approach and unload at the jetty were issued after the PLA had approved the plans of the terminals. The raw sugar jetty and the terminals were constructed at roughly the same time. The channel to the raw sugar jetty was dredged to a depth corresponding to the depth of the main shipping channel, and the berth was dredged to a depth of six feet below the depth of the main shipping channel. Extensive siltation was caused by the coffer dams inserted in the river during the course of the construction of the terminals, and siltation continued after the terminals had been completed. The siltation14in the channel and berth caused by the terminals involved Tate & Lyle in additional dredging costs between 1966 and 1974.On behalf of the LCC it was submitted that Tate & Lyle could not recover the additional cost of dredging required to keep the raw sugar jetty operational. Tate & Lyle had themselves interfered with the natural flow of the water of the Thames when they dredged the channel and berth and were not entitled to complain of interference with the artificial flow which they had themselves created. Alternatively, the dredging and raw sugar licences were granted after the approval by the PLA of the plans of the terminals. Tate & Lyle's licences were impliedly subject to the construction of the terminals in accordance with those plans, and subject to any consequences flowing from the construction of those terminals.In my opinion these arguments fail. The channel and the berth dredged for the purposes of the raw sugar jetty were authorised works in the Thames which by statute the PLA were entitled to sanction. The public right of navigation extended over the channel and berth once they were dredged. The interference caused by the terminals, on the other hand, was an inter- ference with the public right of navigation which was not justified by the statute under which the LCC erected the terminals. Tate & Lyle suffered particular damage because vessels were prevented from plying between the main shipping channel and the raw sugar jetty. Tate & Lyle are entitled to damages for the particular damage suffered by them as a result of the interference with the public right of navigation unnecessarily caused by the terminals.The PLA approved the plans of the terminals before they granted the raw sugar jetty licences. But the terminals, so far as they caused more siltation than was necessary, created a public nuisance. The LCC cannot escape the consequences of a public nuisance merely because it was created before Tate & Lyle suffered damage.

Conclusions

It follows that the appeal of Tate & Lyle succeeds against the LCC but fails against the PLA. The order of Forbes J. against the LCC will be restored but varied, reducing the damages of £540,000 in respect of additional dredging costs to three-quarters of that sum, namely £405,000. Interest until judgment of £442,158 will be reduced by one-quarter to £331,618.50. The damages of £10,000 in respect of additional survey costs will stand. The second appellants. Silvertown Services Lighterage Limited, are a subsidiary company of Tate & Lyle and provide lighterage and barge facilities for the refinery. They were awarded by Forbes J. £200 agreed damages and as against the LCC this award will be restored. All Tate & Lyle's claims against the PLA are dismissed.

Lord Diplock

My Lords,In his speech my noble and learned friend Lord Templeman has given the reasons which lead him to the conclusion that the additional silt deposited on the bed of the river between the jetty heads of Tate & Lyle's two jetties and the main navigational channel, as a result of the " Husband " design " to which the Woolwich ferry terminals were erected, did not entitle Tate & Lyle to any remedy in law against either the LCC or the PLA, based upon breach of riparian or contractual rights or upon negligence or private nuisance. I agree with his conclusions under these four heads. It is on the question of the LCC's liability to Tate & Lyle for the cost of additional dredging at their raw sugar jetty, as particular damage sustained by them in consequence of a public nuisance, viz. interference with the public right of navigation in the Thames (as to which Forbes J. made no finding), that I am regretfully unable to associate myself with the conclusion reached by the rest of your Lordships.15The question whether the LCC could rely upon statutory authority to cause such additional siltation as in fact resulted from the erection of terminals to the Husband design rather than a Mouchel design, turns on the effect of what qualifies for the description of a " one-off " section in a private act of parliament. This is essentially a question of construction; it is one which I have found to be finely balanced and my mind both during and since the hearing has vacillated between the construction that has gained the support of the rest of your Lordships for the reasons given by Lord Templeman and the construction adopted by the Court of Appeal for reasons which are very persuasive and, if right, would provide the LCC with a defence to the claim for the cost of additional dredging at the refined sugar jetty as well as the raw sugar jetty. In the end, however, I do not think my still lingering doubts justify my persisting in dissenting from your Lordships on a question of construction that is so narrow and so unlikely to recur as this.There are, however, other reasons special to the raw sugar jetty why I think that the LCC are not liable to Tate & Lyle for the cost of the additional dredging there. These reasons are based on the legal nature of the public right of navigation in the tidal waters of the Thames and are in my view of sufficient general importance to justify my stating shortly why I feel compelled to differ from your Lordships on this part of Tate & Lyle's claim.In order to succeed in a claim for particular damage caused to them by a public nuisance Tate & Lyle must first establish that the LCC by constructing the terminals created a public nuisance, that is to say, did an act of which every member of the public wishing to exercise his public right of navigation on the Thames at the place where the additional silting occurred could complain, and in respect of which the Attorney-General, either ex officio or on the relation of such a member of the public, would be entitled to bring a civil action to restrain.A public right of navigation in navigable waters that form part of a port is a right enjoyed by every member of the public to pass and repass over the whole of the surface of the water in vessels of such draught as the depth of water below any particular part of the surface permits and to keep such vessels stationary in the water for a reasonable time for naviga- tional purposes in the course of a voyage (e.g. waiting for a tide) or for the purpose of loading, unloading or transhipping goods or passengers or waiting to do so.The concept that there is such a thing as a " natural flow " of water that determines the configuration of the bed of a river with the consequence that it is, in law, a public nuisance to do anything that interferes with that configuration in such a way as to prevent vessels of a particular draught passing over a particular part of the surface of the water, can have no application to a navigable river like the Thames, whose bed, soil and shore are vested in a statutory authority whose functions include the control of all navigation on the river and which is empowered itself to do, and to authorise riparian owners to do, acts on the bed of the river which inevitably affect the migration of silt from one part of the bed to another and cause changes in the former configuration of the bed.A member of the public wishing to exercise his public right of navigation over that part of the Thames adjacent to the jetty head of either of Tate & Lyle's jetties in a vessel of a particular draught would be entitled to find there such depth of water as was from time to time permitted by the configuration which the bed of the river had assumed as a result of any dredging or of the erection of structures there or elsewhere in the river that the PLA had itself undertaken or had licensed individual riparian owners to undertake. So changes in depth of the water at either of the jetty heads caused by the subsequent erection of some structure in the river, upstream or downstream of the jetties, if licensed by the PLA would not amount to an interference with the public right of navigation and would not constitute a public nuisance. Accordingly, it would give no right of action to Tate & Lyle who suffered particular damage as a result.16It is because your Lordships are prepared to hold that upon the true construction of section 50 of the London County Council (Improvements) Act 1962, the approval by the PLA of the Husband design for the ferry terminals does not confer upon the terminals erected in accordance with that design the same status in law as structures in the river that the PLA has licensed riparian owners to erect and maintain that the LCC cannot escape liability for the cost of the additional dredging adjacent to the refined sugar jetty where, prior to the construction of the terminals, no dredging was required to obtain the depth of water necessary to accom- modate vessels of the draught used for the purpose of carrying away the refined sugar from that jetty.The raw sugar jetty differs from the refined sugar jetty in two respects which, in my opinion, affect the public right of navigation at the jetty head and between the jetty head and the main navigation channel. The first is that the depth of water necessary to accommodate vessels carrying raw sugar to the jetty could only be obtained and maintained by dredging; and the second is that the licence to Tate & Lyle to erect the jetty was not granted until after the Husband design for the terminals had been approved by the PLA.Licences to deepen the bed of the river at any particular place by dredging are granted by the PLA for short periods only, which do not in practice exceed six months; if dredging is to continue after one licence has expired a fresh licence is required. So too, licences to riparian owners to erect and maintain structures on the bed of the river are terminable by the PLA upon short notice requiring the licensee to remove the structure. Cessation of dredging at a particular place and removal of structures will inevitably affect the configuration of the bed of the river; and since such cessation or removal may lawfully be called for by the PLA upon short notice at any time, a member of the public wishing to exercise his public right of navigation over a particular part of the water of the Thames has no public right to continue to find at that place a depth of water greater than it would have been if no dredging of the river had taken place there or a licensed structure had not been removed.Before any construction work had started on the ferry terminals the depth of water at that part of the river where the jetty head of the raw sugar jetty was subsequently located was insufficient to permit of navigation by vessels of the draught that the raw sugar jetty was intended to accom- modate; so at that time there could be no public right to navigate there in vessels of that draught. Dredging the bed of the river in that area to a depth sufficient to enable vessels of that draught to have access from the main navigational channel to the raw sugar jetty head and to moor there for the purpose of unloading raw sugar, whether such dredging was under- taken by the PLA itself or by someone else licensed to undertake it by the PLA, could not, for the reasons stated in (7), give rise to any public right to the maintenance of that additional depth; and for the purpose of any cause of action for particular damage sustained in consequence of a public nuisance, which is the only cause of action to which your Lordships have held that Tate & Lyle are entitled, they must as a condition precedent to that cause of action establish that there has been an interference with a right of navigation to which every member of the public is entitled. For this purpose the fact that the dredging was undertaken by Tate & Lyle themselves and not by some stranger licensed by the PLA to undertake it, must be ignored. On this ground I would hold that Tate & Lyle's claim for the cost of additional dredging in the area of the raw sugar jetty fails.The second ground only arises upon the assumption that the first ground fails and the ferry terminals when erected did create a public nuisance in the vicinity of the raw sugar jetty. In all the cases to which your Lordships were referred in which particular damage sustained in consequence of a public nuisance has been recognised as giving rise to a cause of action in civil law the particular damage has been caused by injury to proprietary rights of the plaintiff in corporeal or incorporeal hereditaments that are in proximity to the public nuisance; and I would17accept that in principle where the injury is to proprietary rights it is no defence to say that the plaintiff either created or increased the particular damage that he sustained by the use to which he chose to put his property after the public nuisance had come into existence, so long as such use was a lawful one. But in the instant case your Lordships have held that no proprietary rights of Tate & Lyle have been injured by the accumulation of additional silt at the jetty heads. When the licence to erect the raw sugar jetty was granted by the PLA to Tate & Lyle the construction of the ferry terminals to the Husband design had been already authorised. Assuming that during its construction and after its completion it created a public nuisance by its interference with the public right of navigation in the area in which Tate & Lyle chose subsequently to obtain a licence for the erection of the raw sugar jetty head, it was that choice which was the cause of their sustaining particular damage of a kind not suffered by other members of the public who wished to exercise their public right of navigation over that area. I do not think that particular damage arising from the choice of a person as to how he uses his public as distinguished from his proprietary rights can, in principle, give rise to a civil cause of action in damages against the creator of the public nuisance.

Lord Keith of Kinkel

My Lords,I have had the opportunity of reading in draft the speech delivered by my noble and learned friend Lord Templeman. I agree with it, and for the reasons he gives would allow the appeal against the G.L.C. and dismiss the appeal against the P.L.A.

Lord Roskill

My Lords,I have had the advantage of reading in draft the speech delivered by my noble and learned friend Lord Templeman. I agree with it in all respects and for the reasons he gives I would allow the appeal by Tate & Lyle against the LCC and order them to pay damages and interest as he proposes. I would also allow the appeal of the second defendants and award them the sum of £200. I would dismiss Tate & Lyle's appeal against the PLA.

Lord Bridge of Harwich

My Lords,I have had the advantage of reading in draft the speech delivered by my noble and learned friend Lord Templeman. I agree both with his reasoning and his conclusions and accordingly concur in the orders which he proposes.3146294—4 Dd 8209971 225 3/83

Cited in 14 later judgments

and 5 more of the most senior