Victoria Park Racing and Recreational Grounds Co Ltd v Taylor

(1937), 58 CLR 479

Latham C.J. — #

This is an appeal from a judgment for the defendants given by Nicholas J. in an action by the Victoria Park Racing and Recreation Grounds Co Ltd against Taylor and others.

The plaintiff company carries on the business of racing upon a racecourse known as Victoria Park. The defendant Taylor is the owner of land near the racecourse. He has placed an elevated platform on his land from which it is possible to see what takes place on the racecourse and to read the information which appears on notice boards on the course as to the starters, scratchings, etc, and the winners of the races. The defendant Angles stands on the platform and through a telephone comments upon and describes the races in a particularly vivid manner and announces the names of the winning horses. The defendant the Commonwealth Broadcasting Corporation holds a broadcasting licence under the regulations made under the Wireless Telegraphy Act 1905-1936 and carries on the business of broadcasting from station 2 UW. This station broadcasts the commentaries and descriptions given by Angles. The plaintiff wants to have the broadcasting stopped because it prevents people from going to the races and paying for admission. The evidence shows that some people prefer hearing about the races as seen by Angles to seeing the races for themselves. The plaintiff contends that the damage which it thus suffers gives, in all the circumstances, a cause of action.

The plaintiff’s case is put as an action upon the case for nuisance affecting the use and enjoyment of the plaintiff’s land. It is also contended that there is an unnatural user of Taylor’s land by Angles to which the Broadcasting Co is a party and of which it takes advantage. The unnatural user is, I understand, alleged to consist in the erection of the wooden structure on Taylor’s land, which Angles uses and the use of the land for broadcasting purposes. It is contended that, there being this unnatural user of the land, the defendant is liable for all the damage which may happen to any person, including the plaintiff, as a result of such user.

The first contention is that the plaintiff’s land has been made suitable for a racecourse, that by reason of the action of the defendants it has been deprived of at least some measure of that suitability, and that therefore this is a case of nuisance-an unlawful interference with the use and enjoyment of land. No analogous case has been cited to the court. I agree that the category of nuisance is not closed and that if some new method of interfering with the comfort of persons in the use of land emerges the law may provide a remedy. For example, the increasing use of electricity, with the possibility of the escape of electricity into an adjoining property, has provided a new possible source of interference with the use of land and the law provides a remedy in such a case.

In this case, however, in my opinion, the defendants have not interfered in any way with the use and enjoyment of the plaintiff’s land. The effect of their actions is to make the business carried on by the plaintiff less profitable, and they do so by providing a competitive entertainment. It is unnecessary to cite authorities for the proposition that mere competition (certainly if without any motive of injuring the plaintiff) is not a cause of action. The facts are that the racecourse is as suitable as ever it was for use as a racecourse. What the defendants do does not interfere with the races, nor does it interfere with the comfort or enjoyment of any person who is on the racecourse. The alleged nuisance cannot be detected by any person upon the land as operating or producing any effect upon the plaintiff’s land. It is consistent with the evidence that none of the persons on that land may, at any given moment, be aware of the fact that a broadcast is being made. The only alleged effect of the broadcast is an effect in relation to people who are not upon the land, that is, the people who listen in or have the opportunity of listening in and who therefore stay away from the land. In my opinion the defendants have not in any way interfered with the plaintiff’s land or the enjoyment thereof.

The plaintiff relied upon the maxim sic utere tuo ut alienum non laedas [use your property in a way that does not harm others]. The argument founded upon this maxim is met by Bonomi v Backhouse, which is referred to by the learned trial judge. I think it is desirable to reproduce the passage which the learned judge quotes in his judgment: “As a general principle, it is difficult to conceive a cause of action from damage when no right has been violated, and no wrong has been done. The maxim sic utere tuo ut alienum non laedas is mere verbiage. A party may damage the property of another where the law permits; and he may not where the law prohibits: so that the maxim can never be applied till the law is ascertained; and, when it is, the maxim is superfluous”. 

I am unable to see that any right of the plaintiff has been violated or any wrong done to him. Any person is entitled to look over the plaintiff’s fences and to see what goes on in the plaintiff’s land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence. Further, if the plaintiff desires to prevent its notice boards being seen by people from outside the enclosure, it can place them in such a position that they are not visible to such people. At sports grounds and other places of entertainment it is the lawful, natural and common practice to put up fences and other structures to prevent people who are not prepared to pay for admission from getting the benefit of the entertainment. In my opinion, the law cannot by an injunction in effect erect fences which the plaintiff is not prepared to provide. The defendant does no wrong to the plaintiff by looking at what takes place on the plaintiff’s land. Further, he does no wrong to the plaintiff by describing to other persons, to as wide an audience as he can obtain, what takes place on the plaintiff’s ground. The court has not been referred to any principle of law which prevents any man from describing anything which he sees anywhere if he does not make defamatory statements, infringe the law as to offensive language, etc, break a contract, or wrongfully reveal confidential information. The defendants did not infringe the law in any of these respects.

The plaintiff further contended that there was an unnatural user of land by the defendant Taylor and that all the defendants were liable for resulting damage to the plaintiff’s land or to the plaintiff’s business. In my opinion, this contention cannot be supported. “Prima facie, it is lawful to erect what one pleases on one’s own land” (Rogers v Rajendro Dutt, at p. 89). It is not suggested that Taylor has broken any building regulation. If he had done so the remedy would be found under the relevant building regulations, and not in an action of the present kind. In truth, the plaintiff’s complaint would be the same in all material particulars if Taylor had a two-storey house from the upper storey of which Angles made his broadcast. In my opinion it would be impossible to contend that there was an unnatural user of the land and because they were used for that purpose. If Taylor complies with any relevant provision under the Federal Post and Telegraph Act or the Wireless Telegraphy Act, he is entitled to have a telephone and to use his premises as an originating point for broadcasting. So also the Commonwealth Broadcasting Co is entitled to broadcast under the licence granted in pursuance of the Federal regulations. I am not prepared to assent to what I regard as the surprising argument that the use of land for broadcasting is an unnatural user of land within the principle of Rylands v Fletcher. Broadcasting of races could doubtless be prevented, either altogether or without the consent of the persons who undertake the trouble and expense of organizing race meetings, by a regulation dealing with the conditions of broadcasting licences; but no such regulation has yet been made.

In reality there is no particular connection between the use of the defendant Taylor’s land as land and the wrong which the plaintiff alleges that it suffers. The position in all material particulars would be exactly the same if the broadcasting were done from a motor car on a road from which the racecourse could be seen or by a man standing on high land of which he was not the owner or the occupier. Reference to Taylor’s land in the argument is introduced only for the purpose of relying upon an alleged unnatural user of that land. As I have already said, in my opinion, there is no such user.

Rich J. — #

The plaintiff company is the owner and occupier of certain land near Sydney which is laid out and equipped as a racecourse. The locality is eminently suited for such purpose–there are two or three similar courses in the vicinity–and the land is being put to its best use and that use is natural and legitimate. The plaintiff company at frequent intervals holds meetings on this course. Its privacy or exclusiveness is guarded by suitable fences and gates. The result is that no one, unless entrance is permitted, can under ordinary conditions view the races or obtain the information, which is only published on the course. That information is shown on boards and semaphores and consists in the scratchings of horses, the position at the barrier of the horses running, the names of the jockeys, the protest flag and the result of the races. The defendants, on the other hand, are using their premises in a non-natural way which curtails or impairs the use and enjoyment of the plaintiff company’s land and detracts from its value. The defendant Taylor owns and occupies a cottage and land opposite the racecourse. On the land at the side of this cottage he has erected a tower and platform.

An observer standing on the platform is enabled to view the whole of the racing tracks and obtain the collated information to which I have referred.

[…]

In these circumstances the learned judge held that the case was one of damnum sine injuria. The question to be solved is, “How far can one person restrain another from invading the privacy of land which he occupies, when such invasion does not involve actual entry on the land?” (Professor Winfield, Law Quarterly Review, vol. 47, p. 24). The defendants contended that the law provides no remedy as their action did not fall within any classification of torts and that the plaintiff’s remedy lay either in self-defence, e.g., raising the height of the fences round the course, or in an application to the legislature. It does not follow that because no precedent can be found a principle does not exist to support the plaintiff’s right. Nuisance covers so wide a field that no general definition of nuisance has been attempted but only a classification of the various kinds of nuisance. Courts have always refrained from fettering themselves by definitions.

[…]

This case presents the peculiar features that by means of broadcasting–a thing novel both in fact and law–the knowledge obtained by overlooking the plaintiff’s racecourse from the defendants' tower is turned to account in a manner which impairs the value of the plaintiff’s occupation of the land and diverts a legitimate source of profit from its business into the pockets of the defendants. It appears to me that the true issue is whether a non-natural use of a neighbour’s land made by him for the purpose of obtaining the means of appropriating in this way part of the profitable enjoyment of the plaintiff’s land to his own commercial ends-a thing made possible only by radio-falls within the reason of the principles which give rise to the action on the case in the nature of nuisance. There is no absolute standard as to what constitutes a nuisance in law. But all the surrounding circumstances must be taken into consideration in each case. As regards neighbouring properties their interdependence is important in arriving at a decision in a given case. An improper or non-natural use or a use in excess of a man’s right which curtails or impairs his neighbour’s legitimate enjoyment of his property is “tortious and hurtful” and constitutes a nuisance.

A man has no absolute right “within the ambit of his own land” to act as he pleases. His right is qualified and such of his acts as invade his neighbour’s property are lawful only in so far as they are reasonable having regard to his own circumstances and those of his neighbour (Law Quarterly Review, vol. 52, p. 460; vol. 53, p. 3). The plaintiff’s case must, I am prepared to concede, rest on what is called nuisance. But it must not be overlooked that this means no more than that he must complain of some impairment of the rights flowing from occupation and ownership of land. One of the prime purposes of occupation of land is the pursuit of profitable enterprises for which the exclusion of others is necessary either totally or except upon conditions which may include payment. In the present case in virtue of its occupation and ownership the plaintiff carries on the business of admitting to the land for payment patrons of racing. There it entertains them by a spectacle, by a competition in the comparative merits of racehorses, and it attempts by all reasonable means to give to those whom it admits the exclusive right of witnessing the spectacle, the competition and of using the collated information in betting while that is possible on its various events. This use of its rights as occupier is usual, reasonable and profitable. So much no one can dispute. If it be true that an adjacent owner has an unqualified and absolute right to overlook an occupier whatever may be the enterprise he is carrying on and to make any profitable use to which what he sees can be put, whether in his capacity of adjacent owner or otherwise, then to that extent the right of the occupier carrying on the enterprise must be modified and treated in law as less extensive and ample than perhaps is usually understood. But can the adjacent owner by virtue of his occupation and ownership use his land in such an unusual way as the erection of a platform involves, bring mechanical appliances into connection with that use, i.e., the microphone and land line to the studio, and then by combining regularity of observation with dissemination for gain of the information so obtained give the potential patrons a mental picture of the spectacle, an account of the competition between the horses and of the collated information needed for betting, for all of which they would otherwise have recourse to the racecourse and pay? To admit that the adjacent owner may overlook does not answer this question affirmatively.

[…]

There can be no right to extend the normal use of his land by the adjoining owner indefinitely. He may within limits make fires, create smoke and use vibratory machinery. He may consume all the water he finds on his land, but he has no absolute right to dirty it. Defendants' rights are related to plaintiff’s rights and each owner’s rights may be limited by the rights of the other. Sic utere tuo is not the premise in a syllogism but does indicate the fact that damnum may spring from injuria even though the defendant can say: “I am an owner.” All the nuisance cases, including in that category Rylands v Fletcher,  are mere illustrations of a very general principle “that law grows and…though the principles of law remain uncharged, yet (and it is one of the advantages of the common law) their application is to be changed with the changing circumstances of the times. Some persons may call this retrogression, I call it progression of human opinion” (R. v Ramsay and Foote, at p. 735). I adapt Lord Macmillan’s words and say: “The categories of ‘nuisance’ are not closed” (Donoghue v Stevenson, at p. 619). Nuisance is not trespass on the case and physical or material interference is not necessary. The “vibration” cases and the “besetting and eavesdropping” cases are certainly against such a contention. What appears to me to be the real point in this case is that the right of view or observation from adjacent land has never been held to be an absolute and complete right of property incident to the occupation of that land and exercisable at all hazards notwithstanding its destructive effect upon the enjoyment of the land overlooked. In the absence of any authority to the contrary I hold that there is a limit to this right of overlooking and that the limit must be found in an attempt to reconcile the right of free prospect from one piece of land with the right of profitable enjoyment of another.

[…]

I think that the appeal should be allowed.

Dixon J. — #

[…]

The plaintiff’s counsel relied in the first instance upon an action on the case in the nature of nuisance. The premises of the plaintiff are occupied by it for the purpose of a racecourse. They have the natural advantage of not being overlooked by any surrounding heights or raised ground. They have been furnished with all the equipment of a racecourse and so enclosed as to prevent any unauthorized ingress or, unless by some such exceptional devices as the defendants have adopted, any unauthorized view of the spectacle. The plaintiff can thus exclude the public who do not pay and can exclude them not only from presence at, but also from knowledge of, the proceedings upon the course. It is upon the ability to do this that the profitable character of the enterprise ultimately depends. The position of and the improvements to the land thus fit it for a racecourse and give its occupation a particular value. The defendants then proceed by an unusual use of their premises to deprive the plaintiff’s land of this value, to strip it of its exclusiveness. By the tower placed where the race will be fully visible and equipped with microphone and line, they enable Angles to see the spectacle and convey its substance by broadcast. The effect is, the plaintiff says just as if they supplied the plaintiff’s customers with elevated vantage points round the course from which they could witness all that otherwise would attract them and induce them to pay the price of admission to the course. The feature in which the plaintiff finds the wrong of nuisance is the impairment or deprivation of the advantages possessed by the plaintiff’s land as a racecourse by means of a non-natural and unusual use of the defendants' land.

This treatment of the case will not, I think, hold water. It may be conceded that interferences of a physical nature, as by fumes, smell and noise, are not the only means of committing a private nuisance. But the essence of the wrong is the detraction from the occupier’s enjoyment of the natural rights belonging to, or in the case of easements, of the acquired rights annexed to, the occupation of land. The law fixes those rights. Diversion of custom from a business carried on upon the land may be brought about by noise, fumes, obstruction of the frontage or any other interference with the enjoyment of recognized rights arising from the occupation of property and, if so, it forms a legitimate head of damage recoverable for the wrong; but it is not the wrong itself. The existence or the use of a microphone upon neighbouring land is, of course, no nuisance. If one, who could not see the spectacle, took upon himself to broadcast a fictitious account of the races he might conceivably render himself liable in a form of action in which his falsehood played a part, but he would commit no nuisance. It is the obtaining a view of the premises which is the foundation of the allegation. But English law is, rightly or wrongly, clear that the natural rights of an occupier do not include freedom from the view and inspection of neighbouring occupiers or of other persons who enable themselves to overlook the premises. An occupier of land is at liberty to exclude his neighbour’s view by any physical means he can adopt. But while it is no wrongful act on his part to block the prospect from adjacent land, it is no wrongful act on the part of any person on such land to avail himself of what prospect exists or can be obtained. Not only is it lawful on the part of those occupying premises in the vicinity to overlook the land from any natural vantage point, but artificial erections may be made which destroy the privacy existing under natural conditions.

[…]

So far as freedom from view or inspection is a natural or acquired physical characteristic of the site, giving it value for the purpose of the business or pursuit which the plaintiff conducts, it is a characteristic which is not a legally protected interest. It is not a natural right for breach of which a legal remedy is given, either by an action in the nature of nuisance or otherwise. The fact is that the substance of the plaintiff’s complaint goes to interference, not with its enjoyment of the land, but with the profitable conduct of its business. If English law had followed the course of development that has recently taken place in the United States, the “broadcasting rights” in respect of the races might have been protected as part of the quasi-property created by the enterprise, organization and labour of the plaintiff in establishing and equipping a racecourse and doing all that is necessary to conduct race meetings. But courts of equity have not in British jurisdictions thrown the protection of an injunction around all the intangible elements of value, that is, value in exchange, which may flow from the exercise by an individual of his powers or resources whether in the organization of a business or undertaking or the use of ingenuity, knowledge, skill or labour.

[…]

In my opinion, the right to exclude the defendants from broadcasting a description of the occurrences they can see upon the plaintiff’s land is not given by law. It is not an interest falling within any category which is protected at law or in equity. I have had the advantage of reading the judgment of Rich J., but I am unable to regard the considerations which are there set out as justifying what I consider amounts not simply to a new application of settled principle but to the introduction into the law of new doctrine.

[…]

In my opinion the judgment of Nicholas J. is right and the appeal should be dismissed.

[…]

In separate opinions, Evatt J. concurred with the judgment of Rich J. and McTiernan J. concurred with the judgements of Lathan C.J. and Dixon J.

Appeal dismissed.