Heavily litigated airspace

Fearn & Ors v Board of Trustees of the Tate Gallery (2023) UKSC 4

A belated note on the Supreme Court decision on nuisance and overlooking. You’ll all know the result by now – the Tate lost – so this is about what the Supreme Court says about nuisance, and how it reached this conclusion. Given that the the number of flats overlooked by an intentionally constructed public viewing platform is likely to be vanishingly small in the general scheme of things, it is what the Supreme Court says about nuisance that is likely to be of wider use than the actual result in the case.

The factual position was that leaseholders of various flats in the Neo Bankside development complained that the public viewing platform at the top of the Tate Modern extension gave visitors clear and uninterrupted views into their (glass walled) flats. ON the facts found at first instance:

a very significant number of visitors to the Tate’s viewing gallery display an interest in the interiors of the claimants’ flats. Some look, some peer, some photograph, some wave. Occasionally binoculars are used. Many photographs showing the interiors of the flats have been posted on social media. The judge found that the extent of the viewing and interest shown in the claimants’ flats is a material intrusion into the privacy of their living accommodation, using the word “privacy” in its everyday sense.

At first instance, the leaseholders lost, with the Judge finding that the Tate’s use of the viewing platform was reasonable, and the leaseholders could take remedial steps themselves. The Court of Appeal found that this was wrong, there would be a nuisance on common law principles, but overlooking could not be a nuisance (our note).

So, to the Supreme Court. The result was a split decision 3/2, with the majority allowing the appeal and the minority upholding the first instance decision (though not the court of appeal decision).

The majority decision starts with the core principles of private nuisance.

Nuisance is an interference with land, not with the occupiers.

It follows from the nature of the tort of private nuisance that the harm from which the law protects a claimant is diminution in the utility and amenity value of the claimant’s land, and not personal discomfort to the persons who are occupying it

Nuisance can be caused by any means. The categories of nuisance are not closed. While often nuisance will be caused by something emanating from the defendant’s land which invades the claimant’s land – eg Japanese knotweed, water, fumes, noise, smells etc. – it is not the physical invasion that gives rise to the nuisance but the interference with amenity that does so, so there have been successful claims for blocking access to a sewer, for loss of acquired right to light, for a dazzling reflected glare, or neon advertising sign, or (in principle) for the sight of prostitutes and their clients coming and going from the defendant’s premises which was used as a brothel.

The use of ‘unreasonable interference’ as a threshold for liability is not to be encouraged.

However, the term “unreasonable” in this statement has no explanatory power: see in particular Allan Beever, The Law of Private Nuisance (2013), p 10 (“It is presented as an explanation of the operation of the law, but it does not, cannot, explain anything”). The requirement that the interference must be “unreasonable” is just another way of saying that – as it is also put – the interference must be “unlawful” (see eg Winfield and Jolowicz on Tort, 20th ed (2020), para 15-010, and the cases there cited); or that to give rise to liability an activity must “unduly” interfere with a person’s use or enjoyment of land (see eg Clerk & Lindsell on Torts, 23rd ed (2020), para 19-01; Lawrence v Fen Tigers Ltd (2014) UKSC 13; (2014) AC 822, para 3, per Lord Neuberger of Abbotsbury).

Instead, two principles should be applied.

Substantial interference

Firstly, is the interference substantial?

The test is objective. What amounts to a material or substantial interference is not judged by what the claimant finds annoying or inconvenient but by the standards of an ordinary or average person in the claimant’s position. As famously expressed by Knight Bruce V-C in Walter v Selfe (1851) 4 De G & Sm 315, 322, the question is whether the interference ought to be considered a material inconvenience “not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people”; see also Barr v Biffa Waste Services Ltd (2013) QB 455, para 36(ii). The objective nature of the test reflects 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

Ordinary use

Secondly, is the use of the land ordinary use by claimant and/or defendant?

One aspect of this core principle is that an occupier cannot complain if the use interfered with is not an ordinary use. In Robinson v Kilvert (1889) 41 Ch D 88 the claimant rented a warehouse in which he stored a particularly delicate and sensitive type of paper. Heat rising from the defendant’s cellar underneath the warehouse floor damaged the paper although it would not have affected ordinary paper and was not sufficient to interfere with “the ordinary use of property for the purposes of residence or business” (p 94). The Court of Appeal held that the defendant was not liable in nuisance. Cotton LJ, at p 94, rejected the notion that something can be a nuisance “because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life.” As Lord Robertson said, giving the judgment of the Privy Council in Eastern and South African Telegraph Co v Cape Town Tramways Co Ltd (1902) AC 381 at 393:

“A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure.”

Conversely, a defendant will not be liable for a nuisance arising from their ordinary use of their land:

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 own land. In the leading case of Bamford v Turnley (1862) 3 B & S 66 at 83, Bramwell B formulated a test which has since been regularly cited, approved and applied, including at the highest level. He gave what were then contemporary examples of acts such as “burning weeds, emptying cess-pools” and “making noises during repairs” which (unless done maliciously and without cause) would not be treated as nuisances, even when they caused material inconvenience or discomfort to neighbouring owners. He then said at pp83-84:

“There must be, then, some principle on which such cases must be excepted. It seems to me that that principle may be deduced from the character of these cases, and is this, viz, that 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.”

Hence, in Southwark London Borough Council v Tanner  (2001) 1 AC 1 noise nuisance due to a lack of sound proofing between flats was not actionable because the activities causing noise were ordinary use,

Ordinary use is not the same as ‘reasonable use’. It is not a defence that the defendant’s use of the land is reasonable, if it is not using the land ‘in the common and ordinary way’. This is supported by the principle of reciprocity.

Reciprocity

The underlying justification for those “well settled tests” was spelt out by Lord Millett in Southwark, when he explained (at p 20) that:
“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.”

This principle of reciprocity explains the priority given by the law of nuisance to the common and ordinary use of land over special and unusual uses. A person who puts his land to a special use cannot justify substantial interference which this causes with the ordinary use of neighbouring land by saying that he is asking no more consideration or forbearance from his neighbour than they (or an average person in their position) can expect from him. Nor can such a person complain on that basis about substantial interference with his special use of his land caused by the ordinary use of neighbouring land. By contrast, a person who is using her land in a common and ordinary way is not seeking any unequal treatment or asking of her neighbours more than they ask of her.

There is a presumption of freedom to build on land (subject to planning etc etc). There is no actionable interference with another’s land arising from the (lawful) erection of a building on land. (Hence also no claims for loss of a view or prospect). Similarly, no claim in nuisance arises from works to build or demolish, provided

it is, in Bramwell B’s phrase, “conveniently done”, that is to say, in so far as all reasonable and proper steps are taken to ensure that no undue inconvenience is caused to neighbours: see Andreae v Selfridge & Co Ltd (1938) Ch 1.

The locality principle

What is a ‘common and ordinary use of the land’ falls to be assessed with regard to the character of the locality. This was what was behind Thesiger LJ’s (somewhat infamous) comment in Sturges v Bridgman (1879) 11 Ch D 852, 865 that “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. This was not about the relative wealth of occupants giving a greater or lesser protection from nuisance, but about the existing character and use of an area, Bermondsey at that time having an established tanning industry.

Coming to a nuisance is no defence.

It is not a defence for the defendant to assert that the use causing nuisance pre-dated the claimant’s interest in their land or change in use of that land (eg building a house), such that they had come to the nuisance.

There may be a question of the defendant’s use, predating a change in use of the claimant’s land, contributing to the character of the locality, but this did not fall to be decided here. The issue was raiser (obiter) in Lawrence v Fen Tigers Ltd (2014) UKSC 13; (2014) AC 822.

Public Interest.

It is not a defence to a nuisance claim that the activity causing a nuisance is for the public benefit.

The decision.

Applying these principles, the claim in nuisance must succeed.

The Tate’s use of land was not ordinary and common. Even in a locality described by the Judge at first instance as

a part of urban south London used for a mixture of residential, cultural, tourist and commercial purposes.” He noted that an occupier in that environment “can expect rather less privacy than perhaps a rural occupier might” and that “anyone who lives in an inner city can expect to live quite cheek by jowl with neighbours”.

There were no other public viewing platforms in the area. Inviting people to look out from a viewing gallery is manifestly a very particular and exceptional use of land, and certainly not necessary for the Tate’s common and ordinary use of its land.

This was key. Anyone buying a flat in London with glass walls must expect a degree of being overlooked and visual intrusion from offices or flats opposite them. But that intrusion would arise from the common and ordinary use of the overlooking offices and flats, so not be actionable (and also clearly reciprocity would apply).

The glass walls of the flats did not however, afford the Tate a defence that they were ‘unusually sensitive’, causing the intrusion. This had no basis in precedent.

I think this question is apt because it highlights the hopeless uncertainty and endless scope for argument that would arise if the sensitivity of the claimant’s property were in general regarded as itself giving rise to a defence to a claim for nuisance. The law of nuisance would be unworkable, and the protection which it provides to homeowners seriously enfeebled, if it were treated as an answer to a claim for nuisance – as the judge treated it in this case – that the claimant would not have had a complaint in nuisance if, instead of her actual property, she had lived in a “differently built, but perfectly acceptable, property” (see para 211).

Quite apart from its unworkability, such an approach would be wrong in principle. As discussed earlier, the reason for applying an objective test when assessing whether the defendant’s activity causes sufficiently serious interference to amount to a nuisance is that the injury is, strictly speaking, to the utility and amenity value of the claimant’s land, and not to the comfort of the individuals who are occupying it. The particular sensitivities or idiosyncrasies of those individuals are therefore not relevant, and the law measures the extent of the interference by reference to the sensibilities of an average or ordinary person. By contrast, it is the utility of the actual land, including the buildings actually constructed on it, for which the law of private nuisance provides protection – not for some hypothetical building of “average” or “ordinary” construction and design.

This said, there may 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 claim or a defence in nuisance.

It was also not relevant that the claimants could potentially have taken protective measures.

It is easy to identify where the judge went wrong here because he himself explained the reason. As he noted, it is not a good defence to a nuisance claim for the defendant to say that the claimant could take remedial steps to avoid the consequences of the defendant’s acts. 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. Arguments of this kind are unsound when relied on to justify any invasion of property rights. It does not avail a trespasser to assert that he would not have wandered onto the claimant’s land if the claimant had erected a fence, or a burglar to argue that the claimant’s house would not have been burgled if the claimant had installed stronger locks. In the same way it is unsound to argue that the defendant’s activity would not violate the claimant’s enjoyment of rights in land if the claimant took measures to prevent this.

There is no burden on a claimant to mitigate the impact of a special use of the defendant’s property.

Overlooking.

The Court of Appeal had erred in considering the case as ‘mere overlooking’.

The issue was not that the flats were overlooked, it was the very particular and exceptional use that the Tate had made of its land.

Neither of these forms of “overlooking”, however, is the subject of this claim. The claimants’ complaint is not that the top floor of the Blavatnik Building (or its southern walkway) overlooks their flats; nor is it that in the ordinary course people in that building look at the claimants’ flats and can see inside. In fact, the claimants made it expressly clear at the trial that they do not object to the fact that they are overlooked from the Blavatnik Building: see [2019] Ch 369, para 190. What they complain about is the particular use made by Tate of the top floor. They complain that the Tate actively invites members of the public to visit and look out from that location in every direction, including at the claimants’ flats situated only 30 odd metres away; that the Tate permits and invites this activity to continue without interruption for the best part of the day every day of the week; and that this has the predictable consequence that a very significant number of the roughly half a million people who visit the Tate’s viewing gallery each year peer into the claimants’ flats and take photographs of them. 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 practise all day every day in my back garden cannot be an actionable nuisance; or that because the smell of your neighbour’s cooking at mealtimes is something you have to put up with, noxious odours from industrial production cannot be an actionable nuisance. The conclusion simply does not follow from the premise.

Public interest

The public interest in having access to a viewing gallery was not something to be weighed in the balance when coming to a conclusion on the Tate’s use of land in finding nuisance. The proper place for such considerations was when addressing remedy.

The reason is simply that private nuisance is a violation of real property rights (see paras 10-11 above). The very nature of property rights requires that, as a general principle, they be respected by all others unless relinquished voluntarily. The fact that it would be of general benefit to the community to use your land for a particular purpose – say, as a short-cut or as a place for taking exercise – is not a reason to allow such use without your consent. The same applies to nuisance. It is not a justification for carrying on an activity which substantially interferes with the ordinary use of your land that the community as a whole will benefit from the interference.

Property rights are not absolute. There are circumstances in which they may be subordinated to the general good of the community – a classic example being the expropriation of land needed for a major infrastructure project. But it is fundamental to the integrity of any system of property rights that, in any such case, the individuals whose rights are infringed or overridden receive compensation for the violation of their rights. In other words, the public interest may sometimes justify awarding damages rather than granting an injunction to restrain the defendant’s harmful activity, but it cannot justify denying the victim any remedy at all.

Appeal allowed. The claim was remitted to the High Court to consider remedy – damages, or injunction (and if so, the extent of it).

The dissenting judgment from two of the Supreme Court disagrees with the apparent limiting of reciprocity and use to ‘common or ordinary use’ as not adequately giving scope to address competing interests and changing use.

In a situation like the present where the respective use of its land by each of a claimant and a defendant falls outside existing standards of common and ordinary use of land in the locale, I can see no principled justification why unusual use of land by the defendant should necessarily have to give way to unusual use of land by the claimant without any attempt to balance the competing interests.

This would be, particularly in London, to potentially stifle development and innovation, by both potential claimants and defendants.

Comment

There was a lot of excited kerfuffle about this judgment, mostly inaccurate, when it came out. Mostly along the lines that overlooking was now nuisance, and/or that the wealthy could close down public spaces.

This is not the case. The judgment deals with a very specific and unusual use – a public viewing platform – not overlooking in general, which is acknowledged to be a standard part of urban life. The issue of remedy is left to the High Court. The viewing platform has not been closed down, and, I’d think, is highly unlikely to be. The south facing side may be ordered to be blanked off, or it may be that damages will be sufficient, or possibly some other remedy.

That said, the court was alert to visual intrusion extending beyond public viewing platforms.

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. The potential for such claims has, however, been markedly increased by developments in technology. Being 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. In an article published in 1931 Sir Percy Winfield referred to an unreported case involving a family in Balham who by placing an arrangement of large mirrors in their garden were able to observe everything that happened in the study and operating room of a neighbouring dentist. Professor Winfield saw no reason why this activity should not have been actionable as a nuisance: see Winfield, “Privacy” (1931) 47 LQR 23, 27. Nor do I. But nowadays the ready availability of CCTV equipment means that no such ingenuity is required to place neighbouring land under constant observation. Similarly, 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.

So, it is all back to common and ordinary use.

There is some force in the minority view that ‘common and ordinary use’ could lead to ossification of use in fast developing areas. But that is somewhat undermined, in my view, by the minority taking the Neo Bankside flats as themselves outside common and ordinary use. How? They are residential flats. The exterior floor to ceiling glass walls are hardly out of the ordinary these days, but in any event the ‘user’ is a residential flat. This is not outside ordinary use.

The importance of the majority decision is, other that for the leaseholders, that it has set the terms of private nuisance for the foreseeable future. The codification in this judgment will be a checklist for every nuisance claim (and defence) in the future.