The much-anticipated Supreme Court judgment in Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent)  UKSC 4 was handed down on 1 February 2023. The Supreme Court found, overturning the Court of Appeal, that visual intrusion can give rise to liability in nuisance.
This blog discusses the facts giving rise to this claim, the judgment, and the importance of the decision.
Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent)
This case concerns the public viewing gallery on the top floor of the Blavatnik Building, which is part of the Tate Modern art museum (Tate). From the gallery, visitors can enjoy 360-degree panoramic views of London and, quite unfortunately for the Claimants, the public can also see straight into the living areas of their flats (as their walls are constructed mainly of glass).
The Claimants’ flats are located about 34 metres away from Tate, on the 13th, 18th, 19th and 21st floors of a block which is part of the nearby Neo Bankside residential and commercial development.
The Claimants brought a claim in private nuisance, seeking an injunction requiring the Board of Trustees of Tate to prevent members of the public from viewing their flats from the relevant part of the viewing gallery walkway; or alternatively, an award of damages.
The first instance trial Judge found that, although intrusive viewing from a neighbouring property could in principle give rise to a claim in nuisance, the intrusion experienced by the Claimants, in this case, does not amount to a nuisance as the use of the public viewing gallery is reasonable and the claimants are responsible for their own misfortune. The decision was overturned by the Court of Appeal which found that “overlooking”, no matter how oppressive, cannot in law count as a nuisance.
Principles of private nuisance
Lord Leggatt, who gave the lead judgment, restated the principles applicable to a private nuisance as follows:-
1. Its subject matter is the wrongful interference with the claimant’s enjoyment of rights over land (land also including buildings and rights attached to the land);
2. It can be caused by any means, and it can be something tangible (e.g. an incursion of Japanese knotweed) or intangible (e.g. fumes, noise, vibration or smell);
3. The interference with one’s common and ordinary use of land must be ‘substantial’;
4. What is a “common and ordinary use of land” is to be judged having regard to the character of the locality;
5. The ‘reasonable user’ principle is fundamental to private nuisance. The test is whether the acts complained of were (i) necessary for the common and ordinary use and occupation of land and (ii) whether they are conveniently done, with proper consideration for the interests of neighbouring occupiers;
6. Interference resulting from construction (or demolition) works will not be actionable provided it is ‘conveniently done’;
7. ‘Coming to a nuisance’ is not a defence. In other terms, the fact that the defendant was already using his land in the way now complained of before the claimant acquired or began to occupy the neighbouring land is not in itself a defence; and
8. It is not a defence to a claim for nuisance that the activity carried on by the defendant is of public benefit.
In addition to the above, the Court will also consider the requirement of foreseeability as an element of liability i.e. whether the interference with the neighbour’s land was foreseeable.
Applying these principles, the Supreme Court overturned the Court of Appeal’s decision, finding that Tate is liable in nuisance, with the issue of the appropriate remedy being referred back to the High Court. The decision leaves us with several key points:
1. Visual intrusion can give rise to liability in nuisance. It, of course, depends on the circumstances of each case and it is doubtless that now that there is a precedent for it, other claims will follow;
2. In cases of overlooking in general, the concepts of invasion of privacy and damage to interests in property are not mutually exclusive;
3. In matters of public policy, considerations of public interest can and should be taken into account, not in determining liability, but in deciding the question of what remedy to grant; and
4. The ‘sensitivity’ or otherwise of the Claimants’ property is not a defence to liability nor is it a defence to say that the claimant could take reasonable steps to avoid the consequences of the nuisance, in this case by, for example, putting up curtains. However, Lord Leggatt did not rule out the possibility that there could be extreme cases where the design or construction of a building is so unusual and far from anything that could actually be expected that it might give rise to a defence.
This decision may open the floodgates to a new aspect of litigation as neighbours may wish to explore whether they have a case for ‘visual intrusion’ and/or the limits of such liability.
The law of private nuisance can be complex, with many cases turning on their facts and the relationships between the parties. It is therefore imperative that proper legal advice is sought early in any contemplated action, not only to establish whether there is a claim available but, also, to set out the options available.
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