Private nuisance following the supreme court decision in Fearn v Tate gallery

In a surprising decision, the Supreme Court decided by a majority of 3-2 that "this is a straightforward case of nuisance." Visual intrusion can amount to an actionable nuisance where there is a substantial interference with the ordinary use and enjoyment of the property.

In this case, 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 "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."

However, the Supreme Court did not make a decision on the appropriate remedy and referred the matter back to the High Court to decide. The Supreme Court did however say that it suspected that the reason for the court's decision below was 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." and, if this is relevant, it is relevant to the issue of remedy.

It remains to be seen whether a settlement will be reached between the parties which will allow part of the viewing gallery to remain open even if subject to certain restrictions. The Supreme Court did highlight that "the claimants cannot be obliged to live behind net curtains."

The case raises some interesting issues over disputes with neighbours/adjoining owners. Surely not every annoyance should be actionable? A case of "give and take, live and let live." The law of nuisance is concerned with maintaining a balance between the conflicting rights of neighbouring landowners but it does not provide a remedy for every annoyance suffered by a neighbour (regardless of how significant). The Supreme Court recognised that anyone should be free to build on land as they choose.

On first impressions, the fact that the Supreme Court has determined that overlooking can be a nuisance is likely to cause significant concern to developers that this will become another barrier to them developing in populated areas (as it would effectively require them to compensate neighbours as they already do in many cases for infringements with rights of light). 

However, developers can take comfort from the test that the court applied. The Supreme Court confirmed that the test was whether the land was being used for a common and ordinary use. The Tate's viewing gallery failed this test, but it is highly likely that "ordinary" residential and commercial developments would not. It is therefore difficult to imagine that this result will be widely replicated. Indeed, the Supreme Court noted that it is "unsurprising that there are only a few reported cases of nuisance resulting from visual intrusion." As highlighted in the earlier Court of Appeal decision, "overlooking of properties has been a common experience since the first cities were constructed in medieval times." Developers will however need to bear in mind the risk going forward. Always one to bear in mind: the categories of nuisance are not closed.

The claimants were tenants in a block of flats built between 2006 and 2012, adjacent to a new extension of the Tate Modern art gallery constructed in 2016. The extension comprised a top floor viewing gallery around all four sides which allowed the visiting public to enjoy a 360 degrees panoramic view of central London. The flats had floor -to-ceiling glass panels. The viewing gallery attracted hundreds of thousands of visitors a year, who could see directly into the living accommodation of the flats opposite. Visitors frequently looked into the flats and took pictures of the flats and their occupants. The claimants said that this was an unreasonable interference with their enjoyment of their flats. The claimants sought an injunction to prevent members of the public from observing their homes from parts of the platform. 

The tenants claimed:

• that the use of the viewing platform unreasonably interfered with their enjoyment of the flats so as to be a nuisance;
• that it infringed their right to respect for their private and family lives under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 8): and
• that as Tate was a public authority, Tate was in breach of section 6 of the Human Rights Act 1998 (1998 Act).

WRONG TO ALLOW A SELF-INDUCED EXPOSURE TO THE OUTSIDE WORLD TO CREATE A LIABILITY IN NUISANCE

It was recognised that although there was a great degree of intrusion into the flats, the privacy claim under the 1998 Act failed because Tate was not exercising functions of a public nature. With regard to the action in private nuisance, the judge found that overlooking could amount to an actionable nuisance but concluded that a claim in nuisance was not made out – the design and use of the flats made them particularly sensitive. The claimants lived in an inner-city environment, and so could expect less privacy than in rural areas, and the claimants could have taken remedial measures such as installing blinds to reduce their complaints.

NUISANCE WAS NOT CAPABLE OF PROTECTING PRIVACY RIGHTS

The Court of Appeal dismissed the flat owners’ appeal, holding that the claimants were not entitled to protection from overlooking. Overlooking by neighbours is not capable of giving rise to a cause of action in private nuisance: the court likened it to the lack of a right of light at common law (until an easement is acquired through long use). Not every annoyance is actionable.

REASONABLENESS BETWEEN NEIGHBOURS

The Court of Appeal highlighted that the case was more akin to an invasion of privacy (which is a personal interest) rather than a nuisance (which concerns damage to an interest in property), and there were already laws relating to privacy. It was more appropriate to leave it to Parliament, rather than the courts, to decide whether to introduce new laws to deal with complaints relating to overlooking rather than extending common law nuisance. Neighbours who are concerned about loss of privacy as a result of adjoining development must rely on other rights and remedies, principally the planning system or, in certain cases, the law on harassment and stalking. It was noted that the European Court of Human Rights had never held that mere overlooking by a neighbour amounted to a breach of Article 8.

The prevailing view in Scotland is that an interference with privacy does not give rise to grounds of action in nuisance. However, in light of the Supreme Court's decision, that may need to be reconsidered. Scottish developers should not be surprised to see similar claims being advanced. Whether the Scottish Courts take the same approach remains to be seen.