Should Mere Licensees Have the Right? What it Means to Have Title to Sue

By Nicholas Troy

I. Introduction

Few legal principles have been as short-lived and yet as chaotic as giving mere licensees title to sue in nuisance. In 1993, the English Court of Appeal in Khorasandjian extended title to plaintiffs without any legal or possessory right over the land. Just four years later, the House of Lords rejected this, insisting mere licensees should not be able to sue. Nevertheless, four years was long enough to become the subject of judicial discussion, giving rise to a wide variety of dicta on the legitimacy of a mere licensee’s title to sue.

II. Background

Prior to Khorasandjian, the leading authority against mere licensees was Malone from 1907, which determined ‘a person who has no interest in property, no right of occupation in the proper sense of the term, [cannot] maintain an action for a nuisance’ (Malone, 151).

However, almost a century later, the Court of Appeal in Khorasandjian decided to overturn this decision on the basis ‘it is ridiculous if in this present age … [nuisance] is only actionable … if the [plaintiff] happens to have the freehold or a leasehold proprietary interest in the premises’ (Khorasandjian, 734).

This position was then approved by the Queensland Supreme Court of Appeal in Deasy, who stated they ‘see no reason why the recent English decision should not be followed [and] it is consistent with a number of decisions in [Australia]’ (Deasy, 13).

However, in 1997, just a year after Deasy, the House of Lords in Hunter rejected the proposition that mere licensees could sue in a multitude of separate judgments. However, at the core of each judgment was a simple premise: the tort of nuisance is not a personal tort; it is a proprietary tort. That means when an action in nuisance is brought, the legal basis is to protect the land, not the occupier. In effect, the tort of nuisance seeks to remedy a reduction in the value of the land because of the nuisance. It is not intended to protect the people who occupy the land, even though that is what it is generally used for. It is entirely possible that a plaintiff could sue to protect land which no-one is occupying, so long as there is nevertheless an unreasonable interference.

This is why Lord Goff said ‘an action in private nuisance will only lie at the suit of a person who has a right to the land affected’ (Hunter, 692), and Lord Lloyd said there should only be ‘one plaintiff for each address’ (Hunter, 699). Lord Hoffmann explained it well by reference to how interference ‘may be affected by the size, commodiousness and value of [the] property but cannot be increased merely because more people are in occupation’ (Hunter, 706). A nuisance does not become more unreasonable just because it affects more people, and so neither does the class of plaintiff increase merely because of the class of person affected. At the heart of nuisance is a policy to protect reversionary interests in land, and so any plaintiff suing under nuisance must possess a legal right to sue on behalf of the land, not on behalf of themselves.

So that ended the principle in England, but that is not the end of the story in other jurisdictions.

III. Mere Licensees in Australia

The notion mere licensees could have title to sue in Australian law was first considered by the Queensland Supreme Court of Appeal in Deasy. In that case, the plaintiff company possessed a lease over a shop but not the carpark in front. They had no legal entitlement to the carpark other than they were allowed to use it because it was in front of their shop. The Court held this was sufficient to convey a de facto license on the plaintiffs and, on the basis on Khorasandjian and some older Australian cases, had title to sue. To this date, Deasy has not been overturned in Queensland.

New South Wales is at the opposite end of the judicial spectrum. In Wilson, the NSW Supreme Court commented ‘it is arguable [a plaintiff] does not need to have an interest in the land … an occupier of the premises can bring proceedings for nuisance’ (Wilson, 13). However, in Robson, the most recent Australian case on this point to date, the Land and Environment Court (which is the same level as the Supreme Court) confirmed that a mere licensee ‘had no right [in nuisance]’ (Robson, 119). Despite not acknowledging the debate about mere licensees, Preston CJ had, intentionally or not, put the nail in the coffin for mere licensees in New South Wales.

Other states have had varied reactions to Deasy and the concept of mere licensees as plaintiffs. Victoria stated ‘a licensee in occupation of property’ has title (Toll, [28]), while Western Australia acknowledged ‘lesser proprietary interests, such as a license, will be sufficient to ground a claim’ (Marsh, 429). However, the interesting thing about both of these cases was that, although they cited Deasy as authority, their first point of call was a Victorian case from 1891: Vaughan.

Vaughan was a case in which the plaintiff had a personal license to occupy the land. It was more than a ‘mere licensee’ because it was granted by contract, despite sharing many of the same qualities such as being revocable at will, not conferring any right to sue in trespass, and not exclusive in occupation. Yet, the Supreme Court of Appeal held this was enough to found an action and granted relief on that basis.

What is significant in this decision was that title was not extended to mere licensees in the sense of those who have no right to the land other than permission, but rather extended title to mere licensees who had an identifiable right, if not a ‘legal’ one, to be on the land. This is reflected in how it has been cited by later cases. Neither Toll nor Marsh decided ‘mere licensees’ have title, instead maintaining that licensees with some sort of right of occupation have sufficient title to sue.

Further, this was the true precedent of Deasy because the plaintiff company was not a mere licensee by permission: they actually had a licence to the shop. As such, when Pincus JA discussed Khorasandjian, he considered it from the point of view of a licensee with a right of occupation. This is why he found support for his decision not only from the majority judgments of Dillon and Rose LJJ, but also from the dissenting judgment of Gibson J (Deasy, 13). None of the judgments in Khorasandjian, or in Hunter, actually deny title to the type of plaintiff in Deasy. It is when a person has no connection to the land and is there only by permission, that they will be denied title to sue.

Consequently, Khorasandjian is not, and has never been, the law in Australia. Although Deasy seemed to adopt its decision, it only served to reaffirm the law which already existed since Vaughan in 1891. Accordingly, the answer to whether mere licensees have title to sue is ‘no’, and the question now becomes: should mere licensees have title to sue?

IV. Should Mere Licensees have Title to Sue?

A. Answer

The answer to whether mere licensees should have title to sue can be summarised rather easily: no.

 The reason for this is because nuisance is a proprietary tort, not a personal one. This was the reasoning for Hunter’s rejection of Khorasandjian, and the recurring basis throughout the common law world for rejecting Khorasandjian in Hong Kong (Artco, [32]), Ireland (Sullivan, [27]–[30]), Canada (Sutherland, [233]), and Jamaica (Needham, [14]).

 The primary argument in favour of giving mere licensees title to sue is that it gives protection to people to prevent interferences with their enjoyment of the land they are occupying (e.g. Cheer, 149–152). However, that is why that argument falls flat. Nuisance is not a tort to protect people. It is intended to protect the value of the land from being diminished by an unreasonable interference, rather than preventing annoyances to the occupants.

 As the House of Lords recognised in Hunter, this will have the unfortunate effect of making some people unable to protect themselves. Yet, it should not matter that fewer people can sue, so long as someone can sue. In a family where only one person can sue in nuisance, it does not matter if other family members cannot, since the landowner member can sue to prevent interferences with their family.

Consequently, mere licensees, in the sense of being ‘merely present’, cannot and should not be able to sue. However, this does not detract from mere licensees with a legal right of occupation from being able to sue as established in Vaughan, or in Foster (the English version of Vaughan), which both established plaintiffs do not need a legally recognised right to occupy the land, they just need to have de facto occupation with a legally identifiable basis.

B. But… Canada…

Despite the legal rational for Malone and its subsequent reaffirmation in Hunter, there is one jurisdiction that went a different way in how it considered title to sue, using an early English case to support the direction it took.

Just as Australia determined in Vaughan that a mere licensee who actually had some legally identifiable right to be on the land which was more than mere permission, so too did England determine that in the 1906 case of Foster. Foster might have been considered an outlier in English common law, one which breaks with principle and flouts the basis of nuisance, except for the fact it was approved by the House of Lords in Hunter.

 In Foster, an oyster farmer sued to protect rock-pools from being polluted by the local council’s sewer system. He had no title to the rock-pools, no license, nothing at all. Despite this, the Court of Appeal gave him title to sue because he was in de facto possession of the rock‑pools and was using it to the exclusion of others. It was on this basis an exception was carved out of the rule that only plaintiffs with an actual legal right could sue. Despite Malone giving judgment a year later, this case remains authoritative in England.

However, it became more than that in Canada. In the 1976 case of Motherwell, the Alberta Supreme Court, Appellate Division, citing Foster, held a mere licensee who has occupation of a substantial nature, such as a mother in a home rather than a mere house guest, would have title to sue. This decision has been criticised by many, including the House of Lords and other Canadian courts (e.g. Sutherland), but nevertheless remains good law in Alberta.

This line of authority suggests a mere licensee who has more than mere occupation and has substantive occupation may have title to sue. However, even this strays from the rational of nuisance as a tort.

Regardless of how substantive the occupation one has over the land, it cannot transform the tort of nuisance into a personal tort. In Vaughan, the exception came from the fact the de facto licensee was the appropriate party to sue, in Foster it was because the oyster farmer was the only party who could sue. Yet, in Motherwell one member of the family already had title and it was unnecessary to grant additional members such title.

Consequently, while Motherwell has not been overturned in Alberta (because it has never been reconsidered), other Canadian jurisdictions have considered and rejected Motherwell’s reasoning for the same reason as Hunter.

As such, although Motherwell is useful to consider, it does not provide an alternative avenue for mere licensees to find title to sue in nuisance.

V. Conclusion

The issue surrounding mere licensees is one which ought to be settled at this point. Malone is, and remains, good authority for the proposition that mere licensees cannot sue in nuisance. While England went through a brief period of turbulence due to Khorasandjian, the House of Lords restored orthodoxy in Hunter. A similar period of instability occurred in Australia, but the principle never actually took hold. It is well settled now that mere licensees cannot, and it would appear should not, be able to sue in nuisance.

VI. Bibliography

A. Articles/Books/Reports

Cheer, Ursula, ‘Private Nuisance Clarified?’ (1997) 5 Torts Law Journal 141 (Cheer)

B. Cases

Artco Properties Ltd v Yau Chun Wing [2000] 1 HKLRD 697; [2000] HKCFI 1073 (Artco)

Deasy Investments Pty Ltd v Monrest Pty Ltd [1996] QCA 466 (Deasy)

Foster v Urban District Council of Warblington [1906] 1 KB 648 (Foster)

Hunter v Canary Wharf [1997] AC 655 (Hunter)

Khorasandjian v Bush [1993] QB 727 (Khorasandjian)

Malone v Laskey [1907] 2 KB 141 (Malone)

Marsh v Baxter (2014) 46 WAR 377 (Marsh)

Motherwell v Motherwell (1976) 73 DLR (3rd) 62; [1976] AltaSCAD 155 (Motherwell)

Needham v Charmaine Senior [2006] 3 JJC 2401; [2006] JMSC 27 (Needham)

Robson v Leischke (2008) 72 NSWLR 98 (Robson)

Sullivan v Boylan [2013] IEHC 104 (Sullivan)

Sutherland v Attorney-General (Canada) (2001) 202 DLR (4th) 310; [2001] BCSC 1024 (Sutherland)

Toll Transport Pty Ltd v National Union of Workers [2012] VSC 316 (Toll)

Vaughan v Shire of Benalla (1981) 17 VLR 129 (Vaughan)

Wilson v New South Wales Land & Housing Corporation [1998] ANZ ConvR 623; BC9800698 (Wilson)