From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: 01 February 2023 14:38
To: Alexander Georgiou <alexander.georgiou@all-souls.ox.ac.uk>
Cc: Jason W Neyers <jneyers@uwo.ca>; Tim Liau <t.h.liau@lse.ac.uk>; Matthew Hoyle <MHoyle@oeclaw.co.uk>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance in the UK Supreme Court

From: Alexander Georgiou <alexander.georgiou@all-souls.ox.ac.uk>
Sent: 01 February 2023 14:34
To: Robert Stevens <robert.stevens@law.ox.ac.uk>
Cc: Jason W Neyers <jneyers@uwo.ca>; Tim Liau <t.h.liau@lse.ac.uk>; Matthew Hoyle <MHoyle@oeclaw.co.uk>; obligations <obligations@uwo.ca>
Subject: Re: Nuisance in the UK Supreme Court

On 1 Feb 2023, at 14:27, Robert Stevens <robert.stevens@law.ox.ac.uk> wrote:

 

Is someone putting up an offensive sign on their land now potentially a private nuisance to me on mine?

 

Lord Goff was wrong. Those sex shop cases should have been decided in public nuisance. It shouldn’t matter whether the residents were licensees.

 

The problem with trying to determine these difficult cases through “reasonableness” is obvious. Once you let in a right that my neighbour doesn’t look on to my land, or put up offensive signs, or upset me on my premises in some other way, where we draw the line becomes difficult and contentious. Which is why they split 3:2. I’ve no very strong view, once we accept that looking into the land of someone else is potentially actionable, where that line should be drawn or whether the majority or minority are right.

 

Land is physical space. Rights in relation to it can legitimately concern the ability to use that physical space. They shouldn’t concern misery, offence, distress or feeling uncomfortable because you’re being looked at. Noise, vibration, smells yes. Being looked at, your neighbour wearing no clothes, offensive signage, no.

 

From: Jason W Neyers <jneyers@uwo.ca> 
Sent: 01 February 2023 14:13
To: t.h.liau@lse.ac.uk; MHoyle <MHoyle@oeclaw.co.uk>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance in the UK Supreme Court

 

But even in his rare case, it is the view/sight of the offensive activities (“I cannot look at that disgusting thing and use that portion of my property”)  which can be said to emanating which is very different than someone looking at you. 

 

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)

 

From: Liau,TH <T.H.Liau@lse.ac.uk> 
Sent: February 1, 2023 9:02 AM
To: MHoyle <MHoyle@oeclaw.co.uk>; Jason W Neyers <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance in the UK Supreme Court

 

Well to be fair Lord Goff in Hunter v Canary Wharf, who drew explicitly on the idea of a ‘negative Immissionen’, left room for such a ‘relatively rare’ possibility..

 

“…Indeed, for an action in private nuisance to lie in respect of interference with the plaintiff's enjoyment of his land, it willgenerally arise from something emanating from the defendant's land. Such an emanation may take many forms - noise, dirt, fumes, a noxious smell, vibrations, and suchlike. Occasionally activities on the defendant's land are in themselves so offensive to neighbours as to constitute an actionable nuisance, as in Thompson-Schwab v. Costaki  [1956] 1 W.L.R. 335 , where the sight of prostitutes and their clients entering and leaving neighbouring premises were held to fall into that category. Such cases must however be relatively rare.’

 

Best

Tim

 

 

From: Matthew Hoyle <MHoyle@oeclaw.co.uk> 
Sent: 01 February 2023 12:28
To: 'Jason W Neyers' <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance in the UK Supreme Court

 

Sorry – the last line of my first para was askew. “they” there being a claimant complaining about overlooking. Even if the claimant would lose at trial because in light of all the evidence the overlooking is not sufficiently serious (10 people, 100 people, 1m people?), the threat of having to go to trial whenever any viewing platform is proposed will surely be enough to deter many developers?

 

In short, I’m not sure there is a clear test (Leggatt appears to accept this at [108]) and that has huge implications for any developer.

 

Matthew Hoyle

Barrister

One Essex Court 

 

This message is confidential and may be privileged. If you believe you have received it in error please delete it immediately and inform the sender immediately.

 

Regulated by the Bar Standards Board.

 

From: Jason W Neyers <jneyers@uwo.ca> 
Sent: 01 February 2023 12:09
To: obligations <obligations@uwo.ca>
Subject: RE: Nuisance in the UK Supreme Court

 

But in Leggatt’s view what makes it superoverlooking? It is only the number of people isn’t it? Hence, my concern expressed below.

 

Just to be clear, I agree with Rob  (and it appears Matthew) that there must be some emanation invading the claimants property to constitute a nuisance (a right interference) before we get to the question whether or not that emanation is substantial and hence unreasonable but I’m just teasing out the logical limits.

 

From: Matthew Hoyle <MHoyle@oeclaw.co.uk> 
Sent: Wednesday, February 1, 2023 7:02 AM
To: Jason W Neyers <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance in the UK Supreme Court

 

I think the thrust of Lord Leggatt’s reasoning, as quoted by James, is that this is an exceptional, unreasonable case of overlooking. “Superoverlooking”. So all persons with public viewing areas must now risk being sued, and the matter will almost certainly have to be resolved at trial even if they ultimately lose.

 

The intensity of the complained of activity cannot change whether it can constitute nuisance. That runs together two separate questions.

 

There is another point here re scope. In Hunter I read the majority to accept clear that there is no claim for negative interference/”immissions” (“negative immissionen”) – i.e. preventing air or light or tv signal reaching someone’s land. There has to be some positive physical interference. Plants, dirt or toxins, smells, sounds or even lights shining into the property (Bank of NZ v Greenwood [1984] 1 NZLR 525)

 

But overlooking is not any sort of physical interference with use. If it has any physical nature at all, it is photons bouncing off your property into the eyes of the looker. The “immissionen” comes from the claimant, not the defendant. Of course, photons go the other way and physically impede the use of the land (as in the blinding light in Greenwood), but the essence of the claim here is not the looking but the overlooking (i.e. I doubt Tate putting up a two way mirror so the residents could not see they were being looked at would alleviate Fearns’ concern).

 

As Rob says, at its core it is a claim not to be seen, which is a privacy question (and therefore a matter for Parliament).

 

Best,

 

Matthew

 

Matthew Hoyle

Barrister

One Essex Court 

 

This message is confidential and may be privileged. If you believe you have received it in error please delete it immediately and inform the sender immediately.

 

Regulated by the Bar Standards Board.

 

From: Jason W Neyers <jneyers@uwo.ca> 
Sent: 01 February 2023 11:52
To: obligations <obligations@uwo.ca>
Subject: Re: Nuisance in the UK Supreme Court

 

How is the viewing platform different than any large bank of windows in any attraction which attracts crowds of people? Conceivably the CN tower is now nuisance, as is every stadium, aquarium, museum, which has windows.

 

Get Outlook for Android

---

From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: Wednesday, February 1, 2023 6:05:09 AM
To: MHoyle <MHoyle@oeclaw.co.uk>; james.lee <james.lee@kcl.ac.uk>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance in the UK Supreme Court

 

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 

 

This message is confidential and may be privileged. If you believe you have received it in error please delete it immediately and inform the sender immediately.

 

Regulated by the Bar Standards Board.

 

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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The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful.

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