Fearn & Ors v The Board of Trustees of the Tate Gallery (2020) EWCA Civ 104
This is the latest round of what is becoming the most heavily litigated stretch of air space in London, assorted leaseholders of Neo Bankside against the Tate Modern, over the overlooking of their flats (plate glass walls and all) from the viewing platform on the Tate Modern extension.
At the High Court first instance claim in nuisance, at least so far as it concerns us here, the judge had found that there was an intrusion into the privacy of the Neo Bankside flats, greater than usual, as it was from a viewing platform, rather than other residential or commercial building windows. Further, in principle, such an invasion of privacy would be capable of amounting to a common law nuisance as an interference with quiet enjoyment of land.
However, the locality was one that included tourism, the design of the properties with complete glass walls had created (or the lessees had submitted to) a heightened sensitivity to privacy, the lessee’s use of winter gardens had created an additional sensitivity, and that the lessees could have taken remedial steps like blinds, one way film and so on. So the claim was dismissed.
The lessees appealed to the Court of Appeal.
I’m not going to go into extended detail, but what is interesting about the Court of Appeal judgment is that it includes a recapitulation and overview of the case law and principles of common law nuisance in reaching a conclusion as to whether there is a cause of action in private nuisance for overlooking, beginning with Williams v Network Rail Infrastructure Ltd (2018) EWCA Civ 1514, (2019) QB 601
First, a private nuisance is a violation of real property rights. It has been described as a property tort. It involves either an interference with the legal rights of an owner or a person with exclusive possession of land, including an interest in land such as an easement or a profit à prendre, or interference with the amenity of the land, that is to say the right to use and enjoy it, which is an inherent facet of a right of exclusive possession: Hunter v Canary Wharf Ltd (1997) AC 655 687G–688E (Lord Goff citing FH Newark, “The Boundaries of Nuisance” 65 LQR 480), 696B (Lord Lloyd), 706B and 707C (Lord Hoffmann) and 723D–E (Lord Hope).
Second, although private nuisance is sometimes broken down into different categories, these are merely examples of a violation of property rights. In Hunter’s case, at p 695C, Lord Lloyd said that nuisances are of three kinds:
“(1) nuisance by encroachment on a neighbour’s land, (2) nuisance by direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land.”
The difficulty, however, with any rigid categorisation is that it may not easily accommodate possible examples of nuisance in new social conditions or may undermine a proper analysis of factual situations which have aspects of more than one category but do not fall squarely within any one category, having regard to existing case law.
Third, the frequently stated proposition that damage is always an essential requirement of the cause of action for nuisance must be treated with considerable caution. It is clear both that this proposition is not entirely correct and also that the concept of damage in this context is a highly elastic one. In the case of nuisance through interference with the amenity of land, physical damage is not necessary to complete the cause of action. To paraphrase Lord Lloyd’s observations in Hunter, at 696C, in relation to his third category, loss of amenity, such as results from noise, smoke, smell or dust or other emanations, may not cause any diminution in the market value of the land, such as may directly follow from, and reflect, loss caused by tangible physical damage to the land, but damages may nevertheless be awarded for loss of the land’s intangible amenity value.
Fourth, nuisance may be caused by inaction or omission as well as by some positive activity.
Fifth, the broad unifying principle in this area of the law is reasonableness between neighbours.
In this case, nuisance by overlooking would have to fall under the third of Lord Lloyd’s kinds – interference with quiet enjoyment.
But the Court of Appeal held that overlooking was not an actionable interference with quiet enjoyment of land (and remember, that as per Hunter, it is an interest in land that must be affected, not the occupiers per se.
Firstly, the ‘overwhelming weight’ of precedent case law was against overlooking being actionable. (See paras 50-73 for detail).
Secondly, “The absence at common law of a right to light, short of an easement after 20 years’ use which satisfies the relevant conditions, and of general air flow and prospect, are mirrored by the absence of a right to prevent looking into a residence. The reason for the former (no general right to light, air flow and prospect) has been judicially explained as being that such a right would constrain building in towns and cities.” The same policy reasons would be behind the lack of any sucecssful claim for overlooking.
Thirdly, as per Hunter, the law
“does not always provide a remedy for every annoyance to a neighbour, however considerable that annoyance may be. In that case the House of Lords confirmed the decision of the lower courts that the claimants had no claim in nuisance against the defendants who had constructed a very tall and large building which allegedly interfered with the reception of television broadcasts in the plaintiffs’ homes. There was no cause of action because of the general principle that at common law anyone may build whatever they like upon their land.”
Fourthly, before extending private nuisance to cover overlooking it is necessary to consider:
Unlike such annoyances as noise, dirt, fumes, noxious smells and vibrations emanating from neighbouring land, it would be difficult, in the case of overlooking, to apply the objective test in nuisance for determining whether there has been a material interference with the amenity value of the affected land. While the viewing of the claimants’ land by thousands of people from the Tate’s viewing gallery may be thought to be a clear case of nuisance at one end of the spectrum, overlooking on a much smaller scale may be just as objectively annoying to owners and occupiers of overlooked properties. The construction of a balcony overlooking a neighbour’s garden which results in a complete or substantial lack of privacy for all or part of the garden, with particular significance in the summer months, and which may even diminish the marketability or value of the overlooked property, would appear to satisfy the objective test. There would also be a question whether, in such a case, it makes any difference if there was more than one balcony or more than one family using the balcony or balconies. It is difficult to envisage any clear legal guidance as to where the line would be drawn between what is legal and what is not, depending on the number of people and frequency of overlooking. It is well known that overlooking is frequently a ground of objection to planning applications: any recognition that the cause of action in nuisance includes overlooking raises the prospect of claims in nuisance when such a planning objection has been rejected.
Futher, interests in the locality should be properly protected by planning law and control, rather than private claims in nuisance after the event.
The issues at stake in such an overlooking case were really about invasion of privacy rather than of damage to interests in land:
There are already other laws which bear on privacy, including the law relating to confidentiality, misuse of private information, data protection (Data Protection Act 2018), harassment and stalking (Protection Harassment Act 1997). This is an area in which the legislature has intervened and is better suited than the courts to weigh up competing interests: cf. Wainwright v Home Office  UKHL 53,  2 AC 406, esp. at , in which the House of Lords held that there is no common law tort of invasion of privacy and that it is an area which requires a detailed approach which can be achieved only by legislation rather than the broad brush of common law principle.
The appeal was dismissed, albeit for different reasons than the first instance Judge had held against the appellants.
This is, in the end, a practical decision by the Court of Appeal. To the extent that the first instance decision had potentially opened up overlooking (and loss of privacy) as a cause of action in private common law nuisance, the potential for claims – particularly in crowded cities with redevelopments all over the place – was endless.
But it is also a principled decision. Private common law nuisance is about interference with land and loss of amenity or enjoyment of the land. (Much like ‘quiet enjoyment’, those terms are usually misunderstood by non-legal people. ‘Quiet enjoyment’ doesn’t mean you have quiet. Enjoyment of the land doesn’t mean your pleasure in being there). If being overlooked is an interference then so is access to light (right to light is statutory, not common law), or a view, or TV or radio or phone signals, and then Hunter would be completely wrong.