Lexis®Library update: The Supreme Court allowed the appeal, by a majority of three to two, with the majority stating that the Tate is liable to the claimants in nuisance.
Background
The Tate Modern (the Tate), a public art gallery in London, opened a new extension in 2016 called the Blavatnik Building. This building is ten stories high and, on its top floor, has a viewing platform which offers panoramic views of London. The claimants own flats in a block of flats neighbouring the Tate that are at around the same height above ground as the viewing platform and have walls constructed mainly of glass. On the south side of the viewing platform, visitors can see directly into the claimants' flats. At the time of the trial the viewing platform was open every day of the week and was visited by an estimated 500,000-600,000 people each year. The trial judge found that a very significant number of visitors display an interest in the interiors of the claimants' flats. Some look, some peer, some photograph, some wave. Occasionally binoculars are used. Many photographs have been posted online. The claimants seek an injunction requiring the Tate to prevent its visitors from viewing their flats from the viewing platform, or alternatively, an award of damages. Their claim is based on the common law of nuisance.
Judgment
The claims were dismissed by the High Court ([2019] EWHC 246 (Ch)) and, for different reasons, by the Court of Appeal ([2020] EWCA Civ 104). The claimants now appeal to the Supreme Court.
(i) Majority judgment
(a) Principles in the tort of private nuisance
The majority judgment reviews the core principles of the law of nuisance. In short, a nuisance is a use of land which wrongfully interferes with the ordinary use and enjoyment of neighbouring land. [9] -[11] To amount to a nuisance, the interference must be substantial, judged by the standards of the ordinary person. [22] Even where there is a substantial interference, the defendant will not be liable if it is doing no more than making a common and ordinary use of its own land. [27] What constitutes an ordinary use of land is to be judged having regard to the character of the locality, eg whether it is a residential or an industrial area. It is no answer to a claim for nuisance to say that the defendant is using its land reasonably or in a way that is beneficial to the public. [47] In deciding whether one person's use of land has infringed another's rights, the public utility of the conflicting uses is not relevant. [121] The benefit of land use to the wider community may be considered in deciding what remedy to grant and may justify awarding damages rather than an injunction, but it does not justify denying a victim any remedy at all. [122]
(b) The application of the law in this case
The trial judge made findings that the claimants' flats are under near constant observation by visitors to the viewing platform. There are hundreds of thousands of spectators each year and many take photographs and post them on social media. The ordinary person would consider this level of intrusion to be a substantial interference with the ordinary use and enjoyment of their home. [48]By contrast, inviting members of the public to admire the view from a viewing platform is not a common and ordinary use of the Tate's land, even in the context of operating an art museum in a built-up area of south London. [50] The Tate is therefore liable to the claimants in nuisance. The court heard no argument on the appropriate remedy and so remitted the case to the High Court to decide this question. [131]-[132]
(c) The errors of the trial judge
The trial judge reached the wrong conclusion as a result of three errors of law:
• the judge applied the wrong test by asking whether, in operating the viewing platform, the Tate was making an 'unreasonable' use of its land, instead of asking whether it was a common and ordinary use [54]-[55]
• the judge considered that the claimants had exposed themselves to visual intrusion into their homes by choosing to live in flats with glass walls. It is right that, if the Tate had been making an ordinary use of its land, the claimants could not have complained about any visual intrusion resulting from the design of their flats. [62]-[63] But where, as here, a defendant is using its land in an abnormal and unexpected way, it is no answer to a claim in nuisance to say that the claimant would not have suffered a nuisance if their property had been of different design or construction [72]-[75]
• the judge also held that it was reasonable to expect the claimants to take measures to avoid being seen from the viewing platform, such as putting up blinds or net curtains. This wrongly placed the responsibility on the victim to avoid the consequences of the defendant's abnormal use of their land [88]
(d) The error of the Court of Appeal
The Court of Appeal recognised that the judge had made these errors but decided that the claim must nevertheless fail because 'mere overlooking' cannot give rise to liability for nuisance. It is true that a person cannot complain of nuisance because their flat is overlooked by another building or because people on the top floor of that building can look into their homes and see inside [90]-[91]. However, that is not the complaint made in this case. The claimants' complaint is that the Tate invites members of the public to look out from a viewing platform from which they can, and many do, peer into the claimants' flats and allows this activity to continue without interruption for most of the day every day of the week. [92] There is no reason why constant visual intrusion of this kind cannot give rise to liability for nuisance and, on the facts found by the trial judge, it does in this case.
(ii) Minority judgment
The minority considered that this appeal raises two questions. First, whether it is possible, in principle, for the tort of private nuisance to apply in the case of a residential property subject to the visual intrusion of people looking into the living areas of the property. Secondly, if this is possible, whether the Appellants have established that there is an actionable private nuisance by reason of the visual intrusion they experience from the Tate's viewing platform [134].On the first question, the minority agree that it is possible, as a matter of principle, for a private nuisance to exist where residential property is subject to visual intrusion [158-169, 179]. On the second question, they consider that the answer depends on principles of reciprocity and compromise applicable to the Appellants and the Tate alike and the application of a standard of objective reasonableness informed by the character of the relevant locality, rather than focusing on whether a defendant’s use of its land is 'ordinary' [158-169, 226-249, 252].The judge was better placed than an appeal court to determine the answer to the second question. He had not misdirected himself and was entitled to find that the use of the Appellants' land in the particular locality was not ordinary, that it was possible for them to take normal screening measures to limit the effect of any visual intrusion they experienced and that according to an objective standard of reasonableness the Tate had not committed a nuisance. [256-279]
References in square brackets are to paragraphs in the judgment
Comment
Tom Weekes KC, barrister at Landmark Chambers
This is an immensely important decision for the law of nuisance. The Supreme Court has held, differing from the view of the minority, that the 'hard-edged' principles of nuisance developed in the 19th century remain good law. And the Supreme Court has put to rest two big, long-standing legal controversies. First, visual intrusion (by such things as watching/observing) can be a nuisance. Secondly, the fact that a claimant occupies a sensitive building is not a defence. The judgment is a robust reassertion of the protection afforded by the common law to privacy in the home. The judgment does open up the prospect of nuisance claims for visual intrusion. For example, a home owner might be liable in nuisance if they direct CCTV cameras at a neighbour’s property. But I don’t foresee any floodgates problem. The principles of nuisance are perfectly capable of enabling judges, applying common sense, to dismiss unmeritorious claims.
John Clargo, barrister at Gatehouse Chambers
The Supreme Court has, by a majority of 3-2 overturned the unanimous decision of the Court of Appeal which had itself, albeit for different reasons, upheld the decision of the trial judge (Mann J.) dismissing the claim. As a result it is clear that intrusive viewing can, in principle, constitute the tort of nuisance. All five of their lordships preferred the view of Mann J. that intrusive viewing from a platform can in principle give rise to such a claim. The judgment of the majority given by Lord Legatt (with whom Lords Reed and Lloyd-Jones agreed) made clear, however, that to establish such a claim would require more than simply the defendant’s land (or building) being situated at a higher level and having a view of the claimant’s land (or building). Consequently, it would not be correct - or would at least be misleading - to talk of a tort of ‘overlooking’ as that term is generally used. The majority held that the fact that the Claimants’ nearby flats were largely glass-walled did not mean that they were entitled to special treatment but merely meant that they might find themselves more inconvenienced by lawful use of the Tate’s building. However, because the Tate’s use of the viewing gallery went far beyond anything which could be regarded as the “necessary or natural consequence of the common and ordinary use and occupation of the Tate’s land” the Tate was seeking to distort the balance of reciprocity and that, simply applying the normal principles of the law of nuisance, made that use actionable. The majority also explained that questions of self-help (in this case the possibility of drawing blinds or putting up net curtains) were, like the question of public interest in the conduct complained of, not germane to the question of liability but were, rather, only relevant in determining what remedy (injunction or damages) might follow. The question of remedy in this case was remitted to the Chancery Division. The judgment of the minority given by Lord Sales (with whom Lord Kitchen agreed) differed on the potential role of reasonable self-help measures. In an unusual case such as this liability in nuisance, which necessitated balancing competing interests in land did not depend solely on the defendant’s use of its property but required a broader consideration including an assessment of whether the claimants’ use of their own land was common and ordinary for the locale or whether they had made themselves particularly vulnerable to the intrusion complained of. The trial judge, not having concluded that the Claimants’ use of their own land was common and ordinary for the locale, was required to carry out a balancing exercise based on an objective standard of reasonableness and, in so doing, was not precluded from taking into account, as he had, reasonable self-help measures in deciding that there was no nuisance. It may well be that the final curtain has not fallen on this litigation. While the case has been remitted back to the Chancery Division for a remedies hearing in the event that the parties do not reach agreement, the minority judgment (which would have dismissed the appeal) has indicated that one of the matters for decision by the Chancery Division will be what impact the principle of finality in litigation might have, given that the particulars of Claim only sought an injunction and the trial did not include any enquiry as to damages. Whether that point will give rise to further decisions, or whether it is provides little more than a negotiating tool for the Tate, remains to be seen.
Julian Greenhill KC, barrister at Wilberforce Landmark Chambers
The 3:2 split decision in the Supreme Court in Fearn v Tate brings a degree of clarity to the approach for determining liability in the law of private nuisance, but at the risk of constraining the new uses to which land can lawfully be put. For the majority, Lord Leggatt JSC ‘s lucid exposition of the law of private nuisance re-emphasises that the touchstone for liability for nuisance is substantial interference caused by a special and unusual use of land, going beyond a common and ordinary use. Having a public viewing gallery open daily with the inevitable visual intrusion that would entail to the neighbouring apartments, is, in the view of the majority, plainly not a common and ordinary use by the Tate of its land with the result that they allowed the appeal and held that the Tate was liable for nuisance. Lord Leggatt deprecated what he saw as both the Judge’s and the Court of Appeal’s attempt to balance public and private interests at the liability stage, taking the view that those interests were irrelevant to liability and could only be taken into account in determining the appropriate remedy. In rejecting the Court of Appeal’s decision that “overlooking” is not capable of amounting to nuisance, he also gave welcome reaffirmation of the principle that there is no conceptual limit to the categories of nuisance, including visual intrusion, whether for reasons of difficulty of application, public policy or otherwise. The result is a clearer, simpler approach to nuisance liability, freed of any conceptual limits and with many of the more complex factors only being weighed in the balance at the remedies stage. However, the majority judgment elevates the question of whether the defendant is putting its land to a “common and ordinary use” to being a decisive determinant of nuisance liability (at least in all but an uncertain category of exceptional cases). It remains to be seen if this is a welcome development in the law. The minority, instead, would have upheld the Judge’s decision. In a powerful dissenting judgment, Lord Sales JSC criticised the majority’s view of the correct test as too narrowly focussed on the defendant’s “common and ordinary use” of its land. The simplified approach of the majority limits the scope for giving more nuanced consideration to other considerations of “reasonable user” and “give and take” at the liability stage, including the extent to which the claimant’s own use is or is not “common and ordinary”, or the protective measures the claimant can reasonably be expected to take to mitigate any interference. By leaving those factors to be considered only at the remedies stage, the majority place greater risk of liability in nuisance on landowners putting their land to new uses in a given locality. It is hard to see how that will avoid stifling innovation and development in land use. Many landowners looking to turn their land to new uses will draw little comfort from the knowledge that they may get away with damages as opposed to an injunction at the remedies stage.
Source: Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4.
Written by Eoghan Quinn
This content was first published by LNB News / Lexis®Library, a LexisNexis® company, on 1 February 2023 and is published with permission. Further information can be found at: www.lexisnexis.co.uk.
