According to Oliver Wainwright of The Guardian, the Supreme Court decision in Fearn and others v Board of Trustees of Tate Gallery [2023] UKSC 4; [2023] EGLR 14 marks a hugely damaging step for the future of public life in our cities. Shortly after the verdict, he wrote that the ruling provides “an unbridled Nimby’s charter that could unleash a wave of unfounded nuisance claims”.
While the judgment confirms that there is no limit to what can constitute a nuisance (including something as intangible as visual intrusion), the actual development ramifications of the ruling are likely to be quite limited.
The well-known principles of private nuisance set a clear parameter for claims which should act as a filter to the much-anticipated flood. Any ramifications are likely to be limited to the more modern-day instances of visual intrusion in the home such as the use of security cameras, smartphones and social media.
The law of nuisance
In reflecting whether the judgment will stifle future development or open the floodgates to a raft of claims, we should consider the core principles of nuisance and how these are applied.
Nuisance is a tort to land and the Supreme Court reconfirmed that the types of activity that can give rise to nuisance are not limited. Anything that materially interferes with a claimant’s enjoyment of rights in land can qualify. However, in all cases, the principles of nuisance are concerned with maintaining a balance between the conflicting rights of neighbours. The law has therefore developed clear principles which limit the number of actionable claims. There will be no actionable nuisance unless the interference is substantial. Likewise, if the defendant’s use of its land is “common or ordinary” in the locality.
Applying these principles to the decision in Fearn, it is clear that the circumstances of the viewing gallery were unique. The claimants were not concerned with their view, nor was it a case of mere overlooking as determined by the Court of Appeal. Their complaint was with the Tate’s use of the viewing platform. By encouraging the public to view from the platform, they were being subjected to intense and continuous visual intrusion which (as held by first instance judge and the Supreme Court) substantially interfered with their use and enjoyment of their home. The visual intrusion by the public was made worse by the photography and posting of pictures on social media. As Henry Mance wrote in the Financial Times: “Cameraphones raise the stakes for anybody overlooked: if you walk out of your shower and your towel falls down, the result might be on the internet forever.”
If the Tate had been using the viewing platform as an art gallery or even as a restaurant, they could have claimed their use of the land was ordinary or common use and argued that this could not give rise to an actionable nuisance. However, the Supreme Court held that inviting the public to “admire the view” from its viewing gallery was not a common or ordinary use of the Tate’s land.
Visual intrusion and privacy
Developers appear to be concerned that the decision will hamper development, particularly near glazed buildings, but the fact a neighbouring building is glazed should not impact on their freedom to build. It will be the use that a building is put to that is relevant. Provided residential or commercial developments are constructed in line with the usual regulations and are then being used in an ordinary and common way (as residential flats or as offices), the mere presence of a building on the defendant’s land should not give rise to a nuisance claim.
As a result of Fearn, any form of visual intrusion which interferes with a person’s freedom to use and enjoy their property could potentially be actionable as a private nuisance, but it is likely that the level of visual intrusion required to cause such an interference will be high.
In his judgment, Lord Leggatt referred to other decisions which he likened to the “constant observation and photography” taking place on the viewing platform.
In an unreported privacy case heard in 1904, the erection of a system of mirrors in a garden used by one neighbour to spy on another constituted a private nuisance. The increased availability of CCTV cameras today means an ingenious construction of mirrors is no longer required to place a neighbour under constant surveillance. A judge in Australia granted an interim injunction in Raciti v Hughes (1995) 7 BPR 14837, holding that floodlights and a surveillance system caused an actionable nuisance. In Suzuki v Munroe 2009 BCSC 1403, a court in British Columbia held that positioning a surveillance camera so it could continuously observe the entrance to the claimant’s neighbouring property constituted a private nuisance.
The Court of Appeal tried to distinguish these cases, saying watching and spying of the kind complained of was very different from overlooking. The Supreme Court held that it was different from overlooking, but was not materially different from what was taking place on the viewing gallery. Lord Leggatt said:
“It is a predictable consequence of operating such a viewing gallery that, of the thousands of people who visit it each day, a very significant number will take an interest (as the judge found that they do) in how the claimants seek to conduct their lives in the flats”.
More recently, in Fairhurst v Woodard (unreported, Oxford County Court, 12 October 2021), an individual claimed harassment, nuisance and breach of the Data Protection Act 2018 arising from her neighbour’s use of security cameras and lights around his property. The judge held, following the Court of Appeal decision in Fearn, that there was no claim in nuisance because overlooking could not give rise to nuisance. However (and correctly anticipating the outcome of the Supreme Court appeal) he also ruled that the interference was not substantial enough. The well-worn principles of nuisance were applied, and the claim dismissed.
Smartphones and social media
Developments in technology have increased the potential for claims. The prevalence of smartphones means images can be shared on social media, which, as Lord Leggatt said, adds further intensity and dimension to the nuisance. In Fearn, the fact viewers were posting pictures on social media was a significant issue, particularly where young children were present in the flats. Being photographed and filmed from a neighbouring property causes a far greater interference with the ordinary use and enjoyment of land than being observed with the naked eye.
On balance it seems that developers can breathe relatively easily. Although the Supreme Court decision has confirmed there is no limit to what can constitute a nuisance, if the principles of nuisance are properly applied, it will be the use that a building is put to which matters. In most cases, the rules of reciprocity will rule out a claim. There may be a few claims testing the boundaries of unlawful or unreasonable use, but these are unlikely to lead to the predicted flood of new claims.
The judgment does confirm, however, that visual intrusion can, in certain circumstances, give rise to nuisance. And with advances in technology and the use of CCTV and smartphones, this may result in a growing number of claims relating to invasions of privacy which affect the utility and amenity value of property.
Natasha Rees is senior partner at Forsters
