| From: | Sean Thomas <sean.thomas@york.ac.uk> |
| To: | obligations@uwo.ca |
| Date: | 01/02/2023 11:40:11 UTC |
| Subject: | Re: Nuisance in the UK Supreme Court |
If, and it seems to me that this is the case, the tipping point is what constitutes ordinary use and occupation of land [see eg [74]: 'It is different because the nature and extent of the viewing of the claimants’ flats goes far beyond anything that could reasonably be regarded as a necessary or natural consequence of the common and ordinary use and occupation of the Tate’s land.'], then the majority decision must turn on para [50]:
'The judge characterised the locality in which the Tate Modern and the Neo Bankside flats are situated 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 “[a]nyone who lives in an inner city can expect to live quite cheek by jowl with neighbours”: para 190. But he made no finding that there is any other viewing platform in that part of London; nor that operating a public viewing gallery is necessary for the common and ordinary use and occupation of the Tate’s land. 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 is manifestly a very particular and exceptional use of land. It 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.'
The section in bold is key, and also, merely assertion. Let's take it apart: (1) 'operating a public viewing gallery is [not] necessary for the common and ordinary use and occupation of the Tate’s land. The Tate did not make, and could not credibly have made, any such allegation.' OK, fine. But, the first part is actually a (indeed, the) conclusion of the dispute, which appears before the argumentation (to follow)...
(2) 'Inviting members of the public to look out from a viewing gallery is manifestly a very particular and exceptional use of land. It cannot even be said to be a necessary or ordinary incident of operating an art museum.'
(3) 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.'
Consider more deeply the issues regarding (2) and (3). In (2), is it a 'necessary or ordinary incident'? Maybe not, but that may just be particular to the Tate. What about eg the Museum of London? There a viewing platform, of London, the subject of the museum, surely would be an ordinary incident of operating as such a museum? What about Clifford's Tower here in York? Is thus point (2) limited just to art museums or just the Tate? If so, then there is a problem with this decision's general applicability. This much would be obvious, which is why the statement in (2) is clearly a general statement, and not directly connected to the immediately preceding and following points. But therein is the problem: such a general principle is inherently subject to question, as already noted. (Another brief point, note the shift from 'common and ordinary use and occupation of the Tate's land' to 'necessary or ordinary incident of operating an art museum'. Are they really the same things?) So thus when it is said at [75]: 'Inviting several hundred thousand visitors a year to look out at the view from your building cannot by any stretch of the imagination be regarded as a common or ordinary use of land.' This cannot be right ab initio, because to do so would eg render the brand new viewing platform on Clifford's Tower (which is of course as necessary and intrinsic to the Tower as the viewing platform is to the Tate....) now potentially an actionable nuisance... Certainly one could if one wanted do all the things that were complained about in this case....
Naturally I assume others may well disagree....
Sean.
I should perhaps add that, if there is a wrong here, it is being overlooked in a private space when you’d prefer not to be. If someone sets up a video camera outside of a hotel room that I am sharing with my partner in order to peer through the curtains, the law might want to make that a wrong of interference with privacy. But it isn’t wrongful because of any right in relation to the hotel room I may or may not have.
We could recognise such right to privacy, but using the law relating to rights in relation to land to do so looks like the wrong vehicle.
From: Robert Stevens
Sent: 01 February 2023 10:45
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>; james_lee_kcl_ac_uk <james.lee@kcl.ac.uk>; obligations@uwo.ca
Subject: RE: Nuisance in the UK Supreme Court
At first blush, having quickly read it, I think this is wrong.
Land is an area of space. If you have a right to land, you have rights good against all others in relation to that physical space.
If someone encroaches upon that physical space without your permission. That is trespass.
If a neighbour creates a noise, or a bright light, or a smell that impairs your (physical) ability to use that space, that may potentially be a nuisance.
“the essence of the wrong is the detraction from the occupier's enjoyment of the natural rights belonging to the occupation of land.” : Dixon J.
Being looked at doesn’t do that. It may be something you’re offended by or that causes you deep misery or that you’d desperately prefer your neighbour not to be doing. But we don’t have rights that our neighbours refrain from doing things that cause us upset or that they refrain from doing things we’d prefer them not to do. Your physical ability to use the land for any purpose you like isn’t impacted in any way.
No doubt the value of these flats were lower because overlooked, but we don’t have general rights protecting our wealth. That too isn’t the gist of the wrong. If there is consequential economic or other loss that is recoverable, but as always, it is a mistake to confuse that consequential loss with the gist of the wrong
“Diversion of custom from a business carried on upon the land may be brought about by noise, fumes, obstruction of the frontage or any other interference with the enjoyment of recognized rights arising from the occupation of property and, if so, it forms a legitimate head of damage recoverable for the wrong; but it is not the wrong itself.” : Dixon J
If my neighbour is a prominent activist in the Ku Klux Klan, that too may cause me terrible misery, lower the value of my property, and be something I’d deeply prefer he didn’t do. It might cause me to move out. But it doesn’t interfere with my physical ability to use space to which I have a right, and so is not a (private) nuisance.
There may be other wrongs that might be committed. So, a sex shop in a residential area may indeed be a nuisance. But it is a public one (I know there is CA authority saying it is a private nuisance).
So, perhaps unsurprisingly, as presently advised, I think Dixon J in Victoria Park Racing v Taylor is right and the UKSC is wrong. But there we are.
From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: 01 February 2023 10:18
To: james_lee_kcl_ac_uk <james.lee@kcl.ac.uk>; obligations@uwo.ca
Subject: RE: Nuisance in the UK Supreme Court
Thanks James.
Paragraph 92 doesn’t seem to make any sense to me. It confuses the principled question (what type of interference can and cannot constitute nuisance) with the factual question (whether a given interference which can constitute nuisance is reasonable or not)
On the logic of that paragraph, surely the majority in Hunter were wrong. You just need a serious enough interference.
Victoria Park Racing gone. A serious misstep, possibly an overstep of judicial function. It brings to mind the words of Lord Hoffman in Transco v Stockport [2004] 2 AC 1 at [43].
Matthew Hoyle
Barrister
One Essex Court
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From: James Lee <james.lee@kcl.ac.uk>
Sent: 01 February 2023 10:07
To: obligations@uwo.ca
Subject: Nuisance in the UK Supreme Court
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
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