In June, as part of the 48th annual Blundell Lecture series, Louise Clark and Gary Cowen KC presented a paper on nuisance. Across two articles, EG features an edited version of that lecture, with Clark here looking at the Supreme Court decision and where the law of nuisance currently stands. In part two, Cowen will consider the wider impact of the decision and where the law may develop in the future.
The decision in Fearn and others v Board of Trustees of Tate Gallery [2023] UKSC 4; [2023] EGLR 14 has been described variously as “controversial”, “groundbreaking” and “momentous”, but is it really any of those things and, equally importantly, has it been fully understood?
The facts
The claimants held long leases of flats in Block C, one of four blocks in Neo Bankside on the south side of the River Thames adjacent to the Tate Modern. The blocks have exoskeletons of steel and the flats have mostly floor-to-ceiling windows.
The claimants acquired their flats in 2013 and 2014, before the development of the extension of the Tate Modern – the Blavatnik Building – which opened in 2016. On the 10th floor of the Blavatnik Building there is a walkway around which visitors can enjoy a 360-degree view of London. On the south side of the walkway – parallel to Block C – visitors can look directly into the claimants’ flats, which on the 18th and 19th floors are just over 34 metres away.
The Tate Modern has around 5.5m visitors per year, of which an estimated 500,000-600,000 go up to the viewing gallery, spending an average of 15 minutes there. It is open all day, seven days a week and some evenings.
The claimants were subjected to close scrutiny by many viewers on the viewing gallery, some waving, some with binoculars, and some taking photographs. They argued that this was an unreasonable interference with the enjoyment of their flats and constituted a nuisance. They sought an injunction requiring Tate Modern to close the walkways that gave views into their flats.
First instance
At first instance, Mr Justice Mann decided that the level of scrutiny was a material intrusion into the privacy of their living accommodation and it was greater than, and of a different order from, overlooking through residential or commercial windows. The normal use of windows would not give rise to the same level of study or interest in the interiors of the flats because, unlike a viewing gallery, their primary purpose is not to view.
However, the intrusion was not a nuisance because:
(a) The locality was “a part of urban south London with a mix of residential, cultural, tourist and commercial purposes” and anyone living in an inner city can expect to live cheek-by-jowl with neighbours.
(b) There was nothing unreasonable in the Tate’s use of its land.
(c) While the claimants were using their flats in accordance with the characteristics of the neighbourhood – as dwellings – the complete glass walls of the flats meant that the developers in building them and the claimants in living in them had created or submitted themselves to a sensitivity to privacy which was greater than it would have been with a less glassed design.
(d) By incorporating an area originally intended as an external balcony into the living accommodation, the flat owners had created their own additional sensitivity to the inward gaze.
(e) There were remedial steps which they could reasonably be expected to take on the basis of “give and take” between neighbours, which included lowering their solar blinds or installing privacy film or net curtains.
The flat owners appealed.
Court of Appeal
The Court of Appeal saw the case as one of overlooking and disagreed with the judge that the common law of nuisance was capable of extending to overlooking. There is no such cause of action, they said, for policy reasons: such a right would prevent building in towns and cities. It is for the planning system to control inappropriate overlooking.
The case was really about invasion of privacy rather than damage to property interests and there were other laws – relating to confidentiality, data protection and the like – which address such issues.
The flat owners appealed again.
The Supreme Court decision
Lord Leggatt gave the majority decision of the Supreme Court. He described the claim – on the facts found by the judge – “as a straightforward case of nuisance”. He reviewed the core principles of private nuisance, showed how they applied to the facts of the case and how each of the courts below had misapplied them.
The core principles of private nuisance
1. Scope
Private nuisance is wrongful interference with the claimant’s enjoyment of rights over land, which includes not only the earth itself but buildings and easements which in law attach to the land, and it is only a person with a legal interest in the land who can sue: Hunter v Canary Wharf Ltd [1997] AC 655.
The harm from which the law protects a claimant is the diminution in the utility and amenity value of its land and not personal discomfort to the persons occupying it.
2. Nuisance can be caused by any means
There is no conceptual limit to what can constitute nuisance. Anything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of its rights in land is capable of being a nuisance.
Frequently such interference is caused by something emanating from land occupied or controlled by the defendant which physically invades the claimant’s land – for example, Japanese knotweed, fumes, noise, vibration or an unpleasant smell.
3. “Unreasonable” interference
The law of private nuisance is concerned with maintaining a balance between the conflicting rights of neighbouring landowners.
The interference must be “unreasonable” in the sense that what constitutes a proven claim and a good defence represents, in the round, the law’s assessment of what is and is not unreasonable conduct sufficient to give rise to a legal remedy.
4. The interference must be substantial
The courts will not entertain trifling or small inconveniences but only those which objectively diminish the comfort, enjoyment or value of the affected property. The standard is that of the ordinary or average person in the claimant’s position.
5. The ordinary use of land
Fundamental to private nuisance is the priority accorded to the general and ordinary use of land over more particular and uncommon uses.
The first question the court must ask is whether the defendant’s use of land has caused a substantial interference with the ordinary use of the claimant’s land and, even where the defendant’s activity substantially interferes with the ordinary use and enjoyment of the claimant’s land, it will not give rise to liability if the activity is itself no more than an ordinary use of the defendant’s own land.
In Bamford v Turnley [1862] 3 B&S 66, Baron Bramwell formulated the regularly cited principle that “those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action”.
The justification for this test is good neighbourliness, which involves reciprocity. A landowner must show the same consideration for their neighbour as they would expect their neighbour to show for them. In other words, the rule of “give and take”, “live and let live”, which applies wherever a nuisance results from the ordinary use of land.
6. The locality principle
What is a “common and ordinary use of land” is to be judged having regard to the character of the locality.
So, as Thesiger LJ said in Sturges v Bridgman [1879] 11 Ch D 852, “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. This was not to suggest that inhabitants of upmarket neighbourhoods are entitled to greater protection than those in poorer neighbourhoods, but rather that where a locality has particular characteristics – such as a trade or manufacture – carrying on activities with those characteristics is not actionable.
7. Coming to a nuisance is no defence
It is not a defence to a claim for nuisance that the defendant was already using their land in the way now complained of before the claimant acquired or began to occupy the neighbouring land.
8. The public interest
Private nuisance is a violation of real property rights. So, it is not a defence to a claim in nuisance that the activity carried on by the defendant is of public benefit.
The decision
Lord Leggatt thought the application of the core principles in Fearn was entirely straightforward: in principle the claim ought to succeed.
Mann J had found that there was a substantial interference with the ordinary use and enjoyment of the claimants’ properties. While the locality of the Tate Modern and the Neo Bankside flats was an inner-city environment, there was no other viewing platform in that part of London.
As Lord Leggatt said: “Inviting members of the public to look out from a viewing gallery is manifestly a very particular and exceptional use of land.” So the Tate could not rely on the principle of give and take and argue that it sought no more toleration from its neighbours for its activities than they would expect the Tate to show for them.
So, where did the judge and the Court of Appeal go wrong?
Mann J had applied the wrong legal test by framing the question he had to decide as “whether the Tate Modern, in operating the viewing gallery as it does, was making an unreasonable use of its land”. The question he should have asked was whether the Tate’s use of its land was a common and ordinary use.
He also applied the law incorrectly when considering the impact of the Tate’s activities on the ordinary use and enjoyment of the claimants’ flats.
The glassed design of the claimants’ flats and their sensitivity to inward view was relevant to the visual intrusion they could be expected to tolerate. Had another block of flats been built on the site of the Blavatnik Building so that the occupiers of those flats could see straight into the claimants’ living accommodation, the claimants could not have complained of nuisance provided that those occupants were doing no more than making normal use of their own homes and showing as much consideration for the claimants as they could reasonably expect the claimants to show for them.
By contrast, where land is being used in an exceptional manner and not in a common and ordinary way, it is not a defence to argue that a neighbour would not have suffered material inconvenience but for the fact that they occupy an abnormally sensitive property. The nature and extent of the viewing of the claimants’ flats from the viewing gallery went far beyond anything that could reasonably be regarded as a necessary or natural consequence of the common and ordinary use and occupation of the Tate’s land.
The judge also thought it reasonable for the claimants to take protective measures to avoid being seen from the viewing gallery. However, far from involving “give and take”, such an approach was all one way. It placed the burden on the claimants – the victims – to mitigate the impact of a special use of the defendant’s property.
Not overlooking
The Court of Appeal was wrong to suppose that the claim was about “overlooking”. The claimants had made it expressly clear at trial that they did not object to the fact that they were overlooked by the Blavatnik Building, nor that in the ordinary course people in that building could look at their flats and see inside.
The reliance on precedent and policy was also given short shrift. The 19th century cases relied on provided no basis for asserting that being constantly watched and photographed by onlookers from neighbouring land could not give rise to a claim in nuisance.
The planning system and the common law of nuisance have different functions. The fact that no consideration was given to overlooking in the planning process for the Blavatnik Building underlined the legal irrelevance of planning permission in this case.
Finally, the concepts of damage to property interests and invasion of privacy are not mutually exclusive.
So where does the decision leave the common law of nuisance?
By drawing together the core principles of private nuisance, the Supreme Court has provided us with a more structured approach for determining whether or not private nuisance has been committed. However, the decision still involved the application of well-established principles.
The panel unanimously agreed that visual intrusion is capable of being a nuisance, even if they disagreed on whether there was a nuisance on the facts of the case and the judge’s findings. So, except to the extent that visual intrusion is now recognised as being capable of being a nuisance, the law has not changed.
The facts of Fearn are very unusual, and circumstances where unusual use of land leads to actionable visual intrusion on neighbouring property are likely to be rare. So, it is unlikely the decision will lead to a spate of claims for overlooking.
The decision is undoubtedly important in demonstrating that those 19th century principles ensure that the law of private nuisance remains sufficiently flexible to address issues which arise in the 21st century. Gary Cowen KC explores this aspect further in the second article.
Louise Clark is a property law consultant and mediator
Part 2: Where next for the law of nuisance?
