Fearn v The Board of Trustees of the Tate Gallery [2023] UKSC 4
A Victorian Answer to a Very Modern Problem
On 7 and 8 December 2021 the Supreme Court (Lords Reed, Lloyd-Jones, Kitchin, Sales and Leggatt) heard the appeal in what is now a well-known nuisance case concerning the Neo Bankside development on the south side of the River Thames and the adjacent building, the Tate Modern, Britain’s national gallery of international modern art. On 1 February 2023 judgment was handed down.
Lord Leggatt, with whom Lords Reed and Lloyd-Jones agreed, gave the leading judgment. Lord Sales, with whom Lord Kitchin agreed, gave a dissenting judgment.
The Facts
The facts of this case are now well known. Neo Bankside was developed around the same time as a new extension to Tate Modern was being created, now known as the Blavatnik Building. The tenth floor of the Blavatnik Building contains a walkway which is open to the public and which affords a 360-degree panoramic view of London.
The floor to ceiling windows, a feature of Neo Bankside, give residents impressive views over London but also mean that outsiders can see in (absent protective measures being taken). This was the problem. The panoramic view from the Tate’s walkway included views of the interior of certain flats in Neo Bankside.
The claimants, the owners of four flats on different floors of Neo Bankside directly opposite the Blavatnik Building, complained of being subject to scrutiny by visitors to Tate Modern. They said that visitors would wave, make gestures and take pictures, which were sometimes posted on social media. They argued that use of Tate’s walkway in this manner unreasonably interfered with their enjoyment of their flats so as to be a nuisance (either as the law presently stood or as it needed to be developed taking into account the Human Rights Act 1998). They also alleged that use of the walkway infringed their privacy rights conferred by Article 8 of the European Convention for the protection of Human Rights and Fundamental Freedoms (‘the Convention’) and that the Tate, as a “hybrid” public authority, was in breach of section 6 of the HRA 1998 and was a body against whom the Act can be directly enforced. The claimants sought an injunction requiring Tate to close (or at any rate obscure) the whole of the southern side of the walkway, and half of the western side, both of which afforded views of Neo Bankside.
The Result in the Supreme Court
In Bamford v Turnley (1862) 3 B&S 66, Bramwell B formulated a test to ascertain when an objectionable use of land will constitute a nuisance. Bramwell B said:
“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.”
If a claimant establishes a material interference with the amenity of its land, the defendant will not be liable if it can show that the use of their land was (1) necessary for the common and ordinary use and occupation of land and (2) conveniently done. This is the rule of give and take, live and let live.
Lord Leggatt regarded this case as a straightforward case of nuisance. On the facts as found by the trial judge, and applying Bramwell B’s test, he said there was no doubt there was an actionable nuisance.
Lord Sales, giving the dissenting judgment, adopted a broader test. Bramwell B’s principle was one of reasonableness and reciprocity but was not “the be all and end all of the test for nuisance”. The Tate’s use of its land by operation of the viewing gallery was not a common and ordinary use of land in the locale, so it could not simply say that it had a defence, applying Bramwell B’s test. But this was not sufficient to render the Tate liable to a claim in nuisance by any neighbouring landowner who could say that the resulting interference with its interests was significant or substantial. Lord Sales said that the unifying principle underlying the tort of nuisance is reasonableness between neighbours and this required a more nuanced approach.
Over the course of this litigation six judges (a judge of the High Court, three Lord Justices of the Court of Appeal and Lords Sales and Kitchin) have concluded there was no actionable nuisance. This may lead one to form the view that this case was far from straightforward, contrary to Lord Leggatt’s view. Lord Leggatt’s explanation for this, however, at paragraph 7 of his judgment, was as follows:
“I suspect that what lies behind the rejection of the claim by the courts below is a reluctance to decide that the private rights of a few wealthy property owners should prevent the general public from enjoying an unrestricted view of London and a major national museum from providing public access to such a view.”
Lord Leggatt did not suggest it was wrong to take account of the public interest but this was a factor for the court to take into account at the remedy stage, not when determining liability.
The Supreme Court was only concerned with the claim based on the tort of private nuisance, but the claimants had originally sought to rely on article 8 of the ECHR to support their claim in tort. All five of their Lordships formed the view that article 8 was not relevant.
The Supreme Court thus concluded by a majority there was an actionable nuisance. It did not determine the appropriate remedy, but instead remitted the case back to the High Court.
The case thus continues …
The Decisions Below
Mann J tried the claim at first instance. The direct claim in privacy under section 6 of the HRA 1998 and Article 8 of the Convention failed at this first stage, with the consequence that the claimants were left with their claim in nuisance.
Mann J also dismissed the claim based on nuisance but said that:
“… had it been necessary to do so I would have been minded to conclude that the tort of nuisance, absent statute, would probably have been capable, as a matter of principle, of protecting privacy rights, at least in a domestic home.”
He went on to say if there were any doubt about this then such doubt had been removed by the Human Rights Act 1998 and article 8 such that “…if it did not do so before the Human Rights Act 1998, since that Act the law of nuisance ought to be, and is, capable of protecting privacy rights from overlooking in an appropriate case. If it did not do so there would be a gap in the protection of privacy in the home…”.
Mann J dismissed the claim in nuisance having concluded that this was a case in which the claimants were occupying a particularly sensitive property in a way which had increased its sensitivity. Drawing an analogy with the sensitive user principle he said:
“The developers in building the flats, and the claimants as successors in title who chose to buy the flats, have created or submitted themselves to a sensitivity to privacy which is greater than would be the case of a less glassed design. It would be wrong to allow this self-induced incentive to gaze, and to infringe privacy, and self-induced exposure to the outside world, to create a liability in nuisance. Other architectural designs would have reduced the invasion of privacy to levels which should be tolerated; that is the appropriate measure in my view. If the claimants have a design which raises the privacy invasion then they have created their own sensitivity and will have to tolerate what the design has created.”
Mann J also concluded that it was reasonable for the claimants to take protective measures to reduce the interference to their land as part of the “give and take” that is expected of owners in this context. He concluded that it was plain that some remedial steps could be taken. These included lowering the solar blinds, which the flats had all been fitted with; installing net curtains; or other forms of screening. Mann J therefore concluded that “[l]ooking at the overall balance which has to be achieved, the availability and reasonableness of such measures is another reason why I consider there to be no nuisance in this case.”
Permission to appeal was given on only one of the claimant’s grounds of appeal and the appeal was concerned with the claim in private nuisance, not the direct claim under the HRA 1998. The Court of Appeal comprised the Master of the Rolls (Sir Terence Etherton), Lord Justice Lewison and Lady Justice Rose DBE. The Court upheld Mann J’s decision, but for different reasons.
The Court of Appeal disagreed that this case was about undue sensitivity. It said that in the context of the tort of nuisance, what was in issue is the impact of the viewing gallery on the amenity value of the flats. Once it had been established that the viewing platform had caused material damage to the amenity value of the flats, and that the use of the flats was ordinary and reasonable having regard to the locality, there would be a liability in nuisance, if nuisance extended to overlooking. There was no question of any particular sensitivity or any need to take the “remedial steps” Mann J had identified.
The Court of Appeal found that despite hundreds of years in which there has been a remedy for causing nuisance to an adjoining owner’s land there has been no reported case in which a claimant had been successful in a nuisance claim for overlooking by a neighbour. The Court concluded that the overwhelming weight of judicial authority was that mere overlooking is not capable of giving rise to a cause of action in private nuisance. This was said to be unsurprising, for historical and legal reasons.
Three policy reasons underpinned the Court’s decision not to extend the cause of action for private nuisance to overlooking. First, it would be difficult to apply an objective test in nuisance for determining whether there had been a material interference with the amenity value of the affected land. Secondly, it is relevant to take account of other ways for protecting owners of land from overlooking, in particular planning laws and control. Finally, what might be said to be really the issue in overlooking cases is invasion of privacy rather than damage to an interest in property. There are already other laws which bear on privacy and this is an area in which the legislature is better suited than the courts to weigh up competing interests under the common law.
The appeal was accordingly dismissed and Mann J’s decision affirmed, but for different reasons to those he gave.
The Majority Judgment in the Supreme Court
Lord Leggatt gave an explanation of the core principles of private nuisance, which can be summarised as follows:
(1) The scope of private nuisance
The tort of private nuisance is a tort to land and it follows from the nature of the tort that the harm from which the law protects a claimant is diminution in the utility and amenity value of its land, and not personal discomfort to the persons who are occupying it: paras. 9 -11.
(2) Nuisance can be caused by any means
There is no conceptual limit to what can constitute a nuisance. Thus, there is no legal reason why an interference which comprises a visual intrusion would not be actionable as a private nuisance: paras. 12 to 17.
(3) “Unreasonable” interference
At a general level, the law of private nuisance is concerned with maintaining a balance between the conflicting rights of neighbouring landowners. The first question which 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: paras.18 to 21.
(4) The interference must be substantial
A substantial interference is judged by an objective test, which is reflective of the fact that the interest protected by the law of private nuisance is the utility of land, and not the bodily security or comfort of the particular individuals occupying it: paras. 22 to 23.
(5) The ordinary use of land
Fundamental to the law of private nuisance is the priority accorded to the general and ordinary use of land over more particular and uncommon uses. One aspect of this core principle is that an occupier cannot complain if the use interfered with is not an ordinary use. The other aspect of this core principle is that 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 land: paras. 24 to 28. When assessing the ordinary use of land the following concepts may be relevant:
“Reasonable user”
(a) It is no answer to a claim for nuisance to say that the defendant is using its land reasonably. The principle which limits the liability of a landowner who causes a sensible interference with his neighbour’s enjoyment of his property is that stated by Bramwell B in Bamford v Turnley. No action will lie where the acts in question are necessary for the ordinary use and occupation of land and are conveniently done: paras 2933.
“Reciprocity”
(b)The underlying justification for the Bamford v Turnley tests is the principle of reciprocity. This principle explains the priority given by the law of nuisance to the common and ordinary use of land over special and unusual uses.
The freedom to build
(c) Interference with the use of land caused by the mere presence of a building on the defendant’s land cannot give rise to a private nuisance. The right to build (and demolish) structures is fundamental to the common and ordinary use of land. This is why interference from construction or demolition works will not be actionable, if conveniently done: paras. 36 to 37.
(6) The Locality principle
What is “common and ordinary use of land” is judged having regard to the character of the locality: paras. 38 to 41.
(7) Coming to the nuisance is no defence
It is not in itself a defence to a claim for nuisance 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. Nor is it a defence that the defendant’s activity did not amount to a nuisance until the claimant’s land was built on or its use was changed: paras. 42 to 46.
(8) The public interest
It is not a defence to a claim that the activity carried on by the defendant is of public benefit: para. 47.
Applying these principles (what Lord Leggatt regarded as “well settled tests”) to the facts, as found by Mann J, Lord Leggatt had no difficulty in concluding that there had been a nuisance. At para. 48 he said:
“Mann J found that the living areas of the claimants’ flats are under constant observation from the Tate’s viewing gallery for much of the day, every day of the week; that the number of spectators is in the hundreds of thousands each year; and that spectators frequently take photographs of the interiors of the flats and sometimes post them on social media. It is not difficult to imagine how oppressive living in such circumstances would feel for any ordinary person - much like being on display in a zoo. It is hardly surprising that the judge concluded that this level of visual intrusion would reasonably be regarded by a homeowner as a material intrusion into the privacy of their living accommodation. On his findings it is beyond doubt that the viewing and photography which take place from the Tate’s building cause a substantial interference with the ordinary use and enjoyment of the claimants’ properties.”
Lord Leggatt’s approach is a simple one. He said, at para. 50, that Mann J had made no finding that operating a public viewing gallery is necessary for the common and ordinary use and occupation of the Tate’s land and the Tate did not make, and could not credibly have made, any such allegation. Inviting members of the public to look out from a viewing gallery was manifestly a very particular and exceptional use of land and cannot even be said to be a necessary or ordinary incident of operating an art museum. “Hence, the Tate cannot rely on the principle of give and take and argue that it seeks no more toleration from its neighbours for its activities than they would expect the Tate to show for them.”
Having set out the answer, Lord Leggatt explained where and why Mann J and the Court of Appeal each went wrong in their reasoning.
Starting with Mann J at first instance, Lord Leggatt agreed with the Court of Appeal’s criticism of the judge, although he classified the judge’s errors of law under three heads, rather than two. He agreed with the Court of Appeal that the judge 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, is making an unreasonable use of its land ...”. He said that Mann J had wrongly thought that what was required was an overall assessment of what, in an undefined sense, is “reasonable” in all the circumstances and had asked himself whether Tate’s use of its land was “reasonable” instead of asking whether it is a common and ordinary use. Mann J had not considered whether the operation of a viewing gallery was necessary for the common and ordinary use and occupation of the Tate’s land and had he done so, he would have been bound to conclude that, as in Bamford v Turnley itself, the Tate was not using its land “in a common and ordinary way, but in an exceptional manner.”
Mann J had also applied the law incorrectly in considering the impact of the Tate’s activities on the ordinary use and enjoyment of the claimants’ flats, in particular, in his conclusion that the claimants are occupying “a particularly sensitive property which they are operating in [a] way which has increased the sensitivity”, when “a differently built, but perfectly acceptable, property … would not have had the same degree of exposure”.
Lord Leggatt did, however, agree with Mann J’s broader point that the glassed design of the claimants’ flats and their sensitivity to inward view is a relevant factor. It is relevant to the visual intrusion that the occupants can be expected to tolerate. Where he thought the judge went wrong was in the way he analysed this question.
The fact that the properties have been designed and constructed in a way which makes them particularly vulnerable to inward view cannot increase the liabilities of neighbours. This is the way in which this ‘sensitivity’ is relevant. What it doesn’t do is alter the principles by which the parties’ reciprocal rights and obligations are determined. So if the Blavatnik Building had been another block of similar flats, and if the occupants could see straight into the claimant’s living room thereby causing an annoyance, if the occupants of the Blavatnik flats were doing no more than making normal use of their home the claimants would have no complaint. What doesn’t follow is that where a person is using land not “in a common and ordinary way, but in an exceptional manner” it is a defence to argue that a neighbour would not have suffered material inconvenience were it not for the fact that it occupies an “abnormally sensitive” property.
Lord Leggatt did caveat his principle that the physical attributes of a building cannot themselves give rise to a claim or defence to a claim in nuisance. He did not rule out the possibility that there could be an extreme case where the design or construction of a building is so unusual and far from anything that could actually be expected that it might do so: para. 76.
As to Mann J’s assessment of the protective measures he thought it would be reasonable for the claimants to take, Lord Leggatt said the judge himself had explained the reason why this is wrong. Mann J had acknowledged that it is not usually a defence to a nuisance claim to say that the claimant could take remedial steps to avoid the ‘nuisance’ but he regarded this as an unusual case and privacy was a bit different to other forms of interference. Lord Leggatt, at para. 83, said:
“The reason why this is not a good defence is that, far from involving give and take, such an approach is all one way, It places responsibility for avoiding the impact of an activity which causes substantial interference with the ordinary enjoyment of property entirely on the victim rather than on the person who carries out the activity.”
As for the Court of Appeal, the reason why the Court of Appeal had concluded the Tate were not liable was because they concluded that liability in nuisance did not extend to “overlooking”. Lord Leggatt agreed with this proposition but said that this claim was not about “overlooking”.
But what is meant by “overlooking”?
1. Where used to refer to a spatial relationship between two places e.g. “your flat overlooks my back garden” the Court of Appeal were right to say that the fact that a building or other structure erected on someone’s land overlooks neighbouring land cannot give rise to liability in nuisance.
2. Where the word is used to mean looking at what is happening on land from a building which overlooks it, i.e. an action done by a person, the Court of Appeal were right to say that in the ordinary course merely looking at what is happening on neighbouring land is not an actionable nuisance. This is the sort of minor annoyance of a kind that neighbouring occupiers have to put up with under the rule of give and take, live and let live.
The complaint in this case was not overlooking, it was something more, and this is where the Court of Appeal had gone wrong. Being constantly watched and photographed was not “overlooking” and:
“To argue that this use of the defendant’s land cannot be a nuisance because “overlooking” (in the Court of Appeal’s sense) cannot be a nuisance is like arguing that, because ordinary household noise caused by neighbours does not constitute a nuisance, inviting a brass band to practice all day every day in my back garden cannot be an actionable nuisance…”
Lord Leggatt confirmed that as a matter of principle, a nuisance can arise from a visual intrusion. The notion that visual intrusion cannot constitute a nuisance was not supported by precedent and, contrary to the view formed by the Court of Appeal, Lord Leggatt said “such direct authority as there is positively supports the opposite conclusion.”
Having analysed where in his view the courts below went wrong Lord Leggatt returned to his thesis as to why they had gone wrong. At [114] he said:
“I think there is a common explanation. It is that both courts were influenced by what they perceived to be the public interest in the use made by the Tate’s viewing gallery. To be clear, I do no suggest that it is wrong to take account of the public interest. What is wrong is to treat it as relevant to the question of liability for nuisance rather than only, where liability is established, to the question what remedy to grant.”
The correct approach where significant considerations of public interest are raised is for the court to take this factor into account, not in determining liability, but where liability is established, in deciding whether to grant an injunction or to award damages.
The Minority Judgment in the Supreme Court
Lord Sales identified two questions which arose in the appeal.
“First, is it possible, in principle, to find that a private nuisance exists in the case of a residential property by reason of visual intrusion by people looking into the living areas of the property? Secondly, if that is possible, have the claimants (the appellants in the appeal) established that there was an actionable private nuisance by reason of the visual intrusion which they have experienced in the circumstances of this case entitling them to injunctive relief?”
Citing Lord Goff in Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 Lord Sales identified the unifying principle underlying the tort as reasonableness between neighbours, noting that an issue on this appeal is the relationship between the general principle of reasonable user stated by Lord Goff and questions relating to “the common and ordinary use and occupation of land”, in Bramwell B’s language.
Having regard to Bramwell B’s test Lord Sales said: “This is a principle of reasonable reciprocity and compromise which I consider is highly relevant in the present case.” Lord Sales also found the dissenting judgement of Pollock CB in Bamford v Turnley illuminating, concluding:
“…in my view, Pollock CB, like Bramwell B, also emphasised that the underlying principle was one of overall reasonableness, involving reciprocity and compromise, taking account of the competing interests of both landowners. This view has persisted since then. In a note in (1937) 53 LQR 3, Professor Goodhart said that the governing principle is one of reasonableness in which “what is reasonable depends both upon [the defendant’s] circumstances and on those of his neighbour.”
Lord Sales emphasised the difference between the principle of reasonable user as set out by Lord Goff in Cambridge Water and the distinct idea of reasonable use which the defendant sought to invoke in Bamford v Turnley by reference to what Lord Millet had said in Southwark London Borough Council v Tanner [2001] 1 AC 1:
“The use of the word ‘reasonable’ in this context is apt to be misunderstood. It is no answer to an action for nuisance to say that the defendant is only making reasonable use of his land … What is reasonable from the point of view of one party may be completely unreasonable from the point of view of the other. It is not enough for a landowner to act reasonably in his own interest. He must also be considerate of the interest of his neighbour. The governing principle is good neighbourliness, and this involves reciprocity. A landowner must show the same consideration for his neighbour as he would expect his neighbour to show for him.”
It is because nuisance is governed by the objective principle of reasonable user (“give and take”) in the sense of reasonable reciprocity and compromise that a defendant has a defence to a claim in nuisance where, as Bramwell B put it, it uses its land in a way which is “common and ordinary” for the locality. Referring to Bramwell B’s test Lord Sales said:
“Provided that what it does is “conveniently done”, then the defendant will clearly have made out a defence according to that principle. This is a simple form of defence, which will give the answer in many situations. It was the straightforward answer to the claim in nuisance in Southwark.
However, whilst a defendant will ordinarily not be liable in nuisance when its use is “common and ordinary”, it does not follow that a defendant will necessarily be liable for nuisance where a relevant interference with the claimant’s enjoyment of their land is caused by use by the defendant which is not “common and ordinary”. Moreover, even in a standard type of case, where the defendant says that its use of its land is “common and ordinary”, the requirement that its use is “conveniently done” means that the fundamental principle remains that of reasonable user. In both types of case an assessment is required of reasonableness in the relevant objective sense, taking account of a range of factors such as the duration and extent of the interference, whether the interference was reasonably foreseeable (a matter considered at some length in Cambridge Water) and whether the claimant’s own use of its land had the effect of aggravating the conflict between the parties’ respective uses of their land.”
Lord Sales agreed that there was no reason to say that visual intrusion at a certain level of intensity which may cause a sensible diminution of the comfortable enjoyment of one’s home should fall outside the scope of the tort of nuisance and like Lord Leggatt he was not persuaded by the Court of Appeal’s view that visual intrusion cannot, as a matter of principle, found a claim in nuisance. He concluded that a person of ordinary sensitivity would regard the extreme degree of visual intrusion experienced by the claimants in this case as a serious interference with their ability to enjoy their property as a domestic habitation. Lord Sales regarded the principle of “give and take” as providing the appropriate way to balance competing interests which arise in relation to visual intrusion. At para. 209 he said :
“The reason why a principle of reasonable reciprocity and compromise, or “give and take”, should apply in relation to the tort of nuisance seems clear. On the one hand, if one landowner uses their land in a way which impinges in a material way on the enjoyment of a neighbour’s property, if no remedy is given that means that the neighbour has in some sense to bear the cost of the landowner’s use. But on the other hand, if a court grants injunctive relief to prevent that use and to protect the use to which the neighbour puts their land, that will have the effect of forcing the first landowner to bear the cost of the neighbour’s use: to the extent that relief is given, the first landowner will be deprived of their usual right, as emphasised in Hunter, to build as they please on their own property or use it as they wish. There is no reason why the rights of one landowner must necessarily prevail over those of the other. A balance has to be struck between them. Each of them is entitled to expect a degree of good neighbourliness and toleration on the part of the other.”
Underpinning Lord Sales’ approach was his conclusion that the aim of the tort of nuisance is that the freedom of neighbouring landowners to use their property should be maximised in a symmetrical way, so far as possible. Thus:
“An occupier is not confined to using their property in a way which matches the ways in which neighbours use theirs. Rather, as Lord Wright put it “[a] balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with.”
Lord Sales thought the application of the “give and take” principle a way of modulating and reconciling the property rights of neighbouring landowners, and one that was particularly important where the issue was visual intrusion or overlooking, particularly in an urban environment, where “a degree of overlooking and visual intrusion is inevitable.”
Lord Sales did not agree that the extent to which the ability of a claimant to help itself was irrelevant to the question of liability. This follows from his conclusion as to what is the appropriate test for nuisance. At 194 he said:
“In my view, once it is recognised that the law of nuisance operates in a more nuanced way in relation to visual intrusion than was discussed in Tapling v Jones, and it is accepted that this may afford a neighbour the opportunity of going to law to seek relief to prevent the landowner from using his land as he wishes, the question whether there are adequate means of self-help available to the neighbour becomes of still greater importance. If there are reasonable and adequate means of self-help, the use of the law of nuisance to prevent development of the landowner’s land becomes more difficult to justify. As Latham CJ put it in Victoria Park Racing, p 494, “the law cannot by an injunction in effect erect fences which the plaintiff is not prepared to provide”. It seems to me that the principle of reasonable reciprocity and compromise which the law has adopted as the mechanism to balance the competing interests of neighbouring landowners has to take account of reasonable measures of self-protection which may be available.”
Thus, at paras. 214 and 215 he concluded:
“In striking the appropriate balance between the competing property interests, I can see no good reason why one should leave out of account reasonable self-help measures which might be available to the person complaining about visual intrusion. The “ordinary usages of mankind” living in a city include employing a degree of self-help to protect oneself against visual intrusion by neighbours, by using curtains, blinds and the like. …
Standing back from the authorities and looking at the matter generally, a degree of toleration of some annoyance is expected as an aspect of good neighbourliness, with the object of allowing other landowners to enjoy their own rights of enjoyment of their property to the fullest extent reasonably possible. As Lord Millett said in Southwark, p 20, “[a] landowner must show the same consideration for his neighbour as he would expect his neighbour to show for him”. In my view, this includes being willing to live with what may be a new and unusual use of a neighbour’s land, if it is in accordance with the objective principle of reasonable use, in order to accommodate the same interest in free development of land which both landowners have. Since that is so, if the claimant is able to take measures reasonably available to them and consistent with the ordinary habits of life which a reasonable person could be expected to adopt, which would allow for accommodation of reasonable use of land by a neighbour, that is in my view a relevant factor which can and should be taken into account. But in deciding whether possible self-help measures should be brought into account in deciding whether an actionable nuisance exists, a great deal will depend on the nature of the nuisance alleged. Potential exposure to visual intrusion is an inevitable feature of urban living and it is usual for people to use screening measures of one sort or another to protect themselves to some degree.
As part of the ‘give and take’ Lord Sales saw no difference in principle between self-help measures which are reasonably available to the claimants in this case and the possibility for action on the part of the Tate to reduce the impact of the viewing platform on the claimants’ properties by closing it at certain times, putting up notices and so forth. He also considered it a relevant factor that one party or the other has conducted themselves in a manner which, although reasonable in itself, had increased the degree of friction between their property rights and those of neighbours without sound justification. At para. 217 he said:
“…in the present case, the construction and use of the flats as the claimants wish, without having to resort to screening measures, can readily be seen to be reasonable as judged from their perspective. The Court of Appeal emphasised this point. But the flats were constructed to an open design which was unusual for the area and in my view the judge was entitled to take this into account in applying the different reasonableness test implicit in the “give and take” principle when assessing whether the use of their land meant that the law should give a remedy to prevent the Tate from using its land as it wished. The Tate’s operation of the viewing gallery was reasonable as judged from its own perspective and was also reasonable as judged by the standards to be expected in the area where both properties were located.”
The overall difference between the two judgments produced by their Lordships can be seen clearly from Lord Sale’s conclusion at para. 241:
“Although I would decide this appeal on the basis that the judge has not found that either the Tate’s use of its land or the claimants’ use of theirs was common and ordinary for the area, I also have reservations whether a modified version of the argument presented by Mr Weekes, to say that so long as a claimant’s use of its land is common and ordinary for the area (which, on the judge’s findings, is not this case) then any interfering use by the defendant of its land which is not common or ordinary for the area will qualify as a nuisance (cf paras 48-52 of Lord Leggatt’s judgment above), meets the points above. As I have said, the fact that the claimant’s use is common and ordinary is an important factor, but it may be that a comparatively modest adjustment in the claimant’s use of its land which it would be reasonable to expect it to adopt would be capable of accommodating the defendant’s use by reducing the friction between the competing uses to an acceptable level. If that is so, the claimant’s user should not of necessity trump the ordinary right of the defendant to use its property in a new way, so as to eliminate all question of whether there is scope for a reasonable accommodation of the two uses. In my view, the tort does not operate according to such a mechanistic rule. In principle, an objective test of reasonableness (albeit one which has regard to the ordinariness or otherwise of the use on either side of the equation) is appropriate to frame the balancing of interests which is required in such a case, as in others. This is something which will be highly dependent on the particular facts and a matter for assessment by the trial judge. Since an objective test of reasonableness is necessary to deal with cases where neither of the competing uses is ordinary for the area, I see no sound reason why such a test should become irrelevant just because the claimant’s use of its land is ordinary.”
Ultimately Lord Sales considered that the principle of reasonable user cannot be reduced to a simple question whether the defendant’s use is common and ordinary but required a broader consideration of the circumstances of the case. This would include factors such as whether the claimants’ own use of their land is common and ordinary for the locale, whether by their use they have made themselves particularly vulnerable to the type of intrusion of which they now complain and whether there are measures of self-help available. In Lord Sales’ view, to focus exclusively on the question of whether the defendant has acted in accordance with the existing common and ordinary use of land would distort the tort as it placed excessive weight on one side of what is an inextricably two-sided relationship. “It means that if a defendant’s use of its land is outside such user a claimant only has to show that the defendant’s use has a significant unwelcome impact on the claimant’s use of its own land in order for its claim to succeed and the court is disabled from looking at a host of other factors, such as the way in which the claimant has chosen to use its own land and the possible adoption of reasonable measures by the claimant.”
The minority would thus have dismissed the appeal for reasons which differ from those given by the Court of Appeal, but which reflect those given by Mann J at first instance.
Remedy
Lord Leggatt was “driven” to the view that the Supreme Court could not decide the question of remedy and, in the absence of agreement between the parties, the case will be remitted back to the High Court.
Both Lord Leggatt and Lord Sales identified some difficult issues which the High Court will now have to grapple with when giving consideration to the question of remedy.
Where does this leave Nuisance arising from visual intrusion?
The Court of Appeal’s decision was welcomed by many for bolting tight the door to potential claims between neighbours complaining that they are being overlooked or peered at. Has the Supreme Court now provided a key?
It followed from the House of Lord’s decision in Hunter v Canary Wharf Ltd that interference with the use of the claimants’ land caused by the mere presence of a building on the defendant’s land could not give rise to a claim for private nuisance. Lord Leggatt said that the claimants could not object to the fact that Tate had built a walkway around the top floor of its buildings which overlooked their flats, it just follows from his decision that if Tate were to use the walkway for its intended purpose this would be a nuisance. It remains the case that simply erecting a building or structure which overlooks land, without more, will not be a nuisance. It also remains the case that no claim in nuisance lies for interference with a view or prospect. But the Supreme Court’s decision does open up the possibility of a nuisance claim by a neighbour arising from a visual intrusion.
When will overlooking be part of everyday normal use of land and when will it be a visual intrusion which constitutes a nuisance? This problem reflects the Court of Appeal’s first policy reason supporting its conclusion that overlooking could not be a nuisance. The Court of Appeal found it “difficult to envisage any clear legal guidance as to where the line would be drawn between what is legal and what is not.” Lord Leggatt did not regard this as a problem, however, and did not accept that applying the objective test was any different in this context than others.
He obviously envisaged a high level of visual intrusion would be required to amount to a nuisance. At para. 103 he said:
“It is unsurprising that there are only a few reported cases of nuisance resulting from visual intrusion. The circumstances in which land is used in an unusual way which gives rise to visual intrusion on a neighbouring property of sufficient duration and intensity to be actionable as a nuisance are likely to be rare.”
Lord Sales, at para. 197 said:
“However, whilst some degree of being overlooked from neighbouring properties is indeed a normal feature of life (and not just in cities) and therefore bound to have to be tolerated according to the principle of “give and take”, it does not follow that all visual intrusion must be tolerated, no matter how oppressive and how destructive it might be of the ordinary amenity to be expected in relation to a residential property. If the relevant bar for application of the tort is set high, as it must be for something as normal and inevitable as the possibility of people being able to look into a property through a window or across a fence, then there is no reason to think it will unduly constrain urban development or would have done so in the past.”
Lord Leggatt did, however, recognise that the potential for such claims has been markedly increased by developments in technology. He said “[b]eing photographed or filmed from neighbouring property is a far greater interference with the ordinary use and enjoyment of land than simply being observed with the naked eye.” He also noted “… the ready availability of CCTV equipment” which could be used to place neighbouring land under constant observation and said “… the intensity of the interference in the present case is made possible by the fact that a large proportion of the population now carry a camera incorporated in their smartphone. And the sharing of images on social media adds a further dimension to the interference”.
Have the floodgates opened for complains by neighbours occupying tall glazed buildings? It would seem not. At para. 62 Lord Leggatt said:
“as anyone who walks around central London can observe, floor to ceiling windows are a common feature of modern, high-rise city buildings. … Such windows are no doubt attractive to owners and occupiers because of the amount of light, sense of space and (particularly on floors high above ground level) extensive views which they afford. But the judge was plainly right to say that those advantages come at a price in terms of privacy. In an inner-city environment the occupier of a flat high above ground level must recognise the possibility that a building of similar height might be constructed nearby from which the occupants can see through their windows”.
Conclusions
Some years after the first four judges to hear this case concluded, for different reasons, that the operation by the Tate of its viewing gallery did not constitute a nuisance, three more judges, against a further two, have concluded that the activity does after all amount to a nuisance.
That is not however the end of the story: it is plain that the last stage in this long running litigation has not yet arrived. The claim will now be remitted to the High Court for a determination whether an injunction should be granted requiring the Tate to obscure part of its walkway so as to prevent any overlooking of Neo Bankside; and whether damages of any kind will be allowed, in lieu of or in addition to an injunction.
Guy Fetherstonhaugh KC and Elizabeth Fitzgerald together with Aileen McColgan KC represented the Board of Trustees of the Tate Gallery at all levels of the litigation, instructed by Herbert Smith Freehills LLP
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