Dear Colleagues,

 

The very long-awaited (judgment took 13 months after the hearing) decision in Fearn v Board of Trustees of the Tate Gallery has been handed down today.

 

This is the case concerning the viewing platform that was a feature of an extension building to the Tate Modern art gallery. It offers panoramic views across London. The owners of flats in a housing development next door on the South Bank, with a modern design with floor to ceiling glass windows, found that visitors to the viewing platform could and did look into their homes, and objected. They sought to sue in nuisance. The claims failed at first instance and in the Court of Appeal, albeit for wildly differing reasons.

 

The Supreme Court has allowed the appeal, by a 3:2 majority. The Court unanimously holds that in principle it is possible for overlooking to amount to a nuisance, at least in the sense engaged by what Lord Leggatt regards as the claim here, as “visual intrusion”:

 

[92] “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.”

 

The Court rejects the suggestion that the solution was for the claimants to draw blinds or put up curtains, and also that the defendant’s activity being arguably in the public benefit does not go to liability.

 

The majority hold that the ordinary person would regard the photo-taking and viewing as a substantial intrusion. Lord Leggatt prefers “common and ordinary use” as a test instead of “reasonable user”.

 

His Lordship embarks upon an exigesis of what he labels “Core Principles of Private Nuisance”, but, with respect, involve several controversial claims about the scope of the tort of nuisance.

 

Lord Sales and Lord Kitchin dissent, largely agreeing with Mann J’s approach at first instance. Lord Sales concludes:

 

[278] “A prominent feature of this case is that, according to the judge’s findings, both

the claimants and the Tate wish to use their respective properties in ways that are

reasonable from their respective self-regarding perspectives, but in circumstances

which were not established as common or ordinary for the area at the time their

respective properties were developed. In my view, Mann J was right to assess their

competing claims against an objective standard involving comparison with the

established usual design for a residential block in the area, with normal window

arrangements. Assessed against that standard, the Tate’s operation of the viewing

gallery did not involve a nuisance. The owners of the flats in Neo Bankside could not

turn the operation of the viewing gallery into a nuisance by reason of the development of their own property according to a design which was out of line with the norm for the area.”

 

There is of course much more take in. The full decision, which runs to 283 paragraph, will take some considerable digesting, is here: https://www.supremecourt.uk/cases/docs/uksc-2020-0056-judgment.pdf.

 

As a matter of initial impression, however, it involves an extraordinary reinterpretation of some key principles of the tort of nuisance.

 

Best wishes,

James

 

--

James Lee

Professor of English Law

The Dickson Poon School of Law

Somerset House East Wing, room SW1.12
King's College London
Strand
London WC2R 2LS

 

E-mail: james.lee@kcl.ac.uk

  

Profile: https://www.kcl.ac.uk/people/james-lee

Forthcoming: "Pragmatic modernisation? Judicial directions in trusts and wealth management" in R Nolan, HW Tang & M Yip (eds) Trusts and Private Wealth Management: Developments and Directions (Cambridge University Press, 2022) https://www.cambridge.org/gb/academic/subjects/law/private-law/trusts-and-private-wealth-management-developments-and-directions