Whether an easement has to be acquired is only half of the point of distinction I am making. The point I am making is that an easement is a claim right that another piece of land be used (or not used) in a certain way.
True, it is a species of right in land* in the words of the 1925 Act, but it is a right of a different kind to title to land, because it relates to what happens on someone else’s land. If I have a right of way and you allow trees to grow which obstruct it,
you are physically interfering with my right in your land. It is no different to allowing trees to grow onto my land.
It therefore provides no support (no pun intended) for the suggestion that nuisance doesn’t require physical interference with “your land”. It is as much a physical interference with my right in your land as the tree
encroachment is to my right to my own land. But I have no right in your land that it not overlook mine (perhaps an easement to that effect could be entered into).
As to acquisition of rights, I accept that there may be special rules relating to streams. However, I read Bradford v Pickles as saying that that is a special rule, and that there is no general right to the free passage
of water onto one’s property except by defined stream.
As to blocking up entrances, I confess not to be familiar with the specific case law you refer to, but again I am not sure there is a general principle here – otherwise we would not have ended up with Crabb v Arun DC?
I think I am perfectly entitled to say “I won’t allow you access to your field which is only accessible by my field”, despite the fact it renders the field entirely unusable.
Ultimately, Mr Fearn’s claim rested on his title to (to exclusive possession) of his flat, and interference with *that right* by being looked at, no with any physical interference with or emanation onto his land.
He did not make any claim that the land carried with it a right that the Tate’s land be used in a certain way which was being interfered with, which would be in the nature of an easement which the common law has never recognised as an automatic right.
I can of course accept that judges have in the past (effectively) legislated to create certain general exceptions to deal with particular social issues. But that is no longer their perview. So they could no longer create
automatic rights extending to the use of another’s land which attach to an estate.
Ultimately, this is clearly a privacy case. If Mr Fearn turned out to only have a licence because his lease allowed his landlord to stay on his couch every other week (or perhaps because it was some form of shared housing
provided by a local authority), it appears he would have no recourse at all. That seems to me to be the unfairest possible outcome. That surely cannot survive if the thrust of the argument is “isn’t it unfair for Mr Fearn to have no claim”.
(*I am ignoring the technicalities which relate to the doctrine of tenure and estates in the above).
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: Donal Nolan <donal.nolan@law.ox.ac.uk>
Sent: 02 February 2023 11:43
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>; Jeannie Paterson <jeanniep@unimelb.edu.au>; Neil Foster <neil.foster@newcastle.edu.au>; Katy Barnett <k.barnett@unimelb.edu.au>; Peter Radan <peter.radan@mq.edu.au>; Nicole Moreham <nicole.moreham@vuw.ac.nz>;
Jason W Neyers <jneyers@uwo.ca>; davidrwingfield <davidrwingfield@gmail.com>; Robert Stevens <robert.stevens@law.ox.ac.uk>
Cc: Alexander Georgiou <alexander.georgiou@all-souls.ox.ac.uk>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance in the UK Supreme Court
Your difficulty with what Lord Leggatt says at [13] rests on two claims/assumptions.
The first is that easements concern ‘a different kind of right’. To which my response would be different to what? And different in what way? Nuisance involves land rights, and easements are land rights (in fact they
are quite simply ‘land’ on the English legal conception of land: see, eg, the Law of Property Act 1925, s 205)). Hence they are straightforwardly encompassed by the idea of nuisance as an interference with the use and enjoyment of land. The fact that in some
(other) sense they are a different kind of right (eg, because they are not natural incidents of land ownership but have to be acquired) seems to me to be irrelevant if we are talking about the scope of nuisance.
The second point is that you assume all the cases that don’t involve boundary crossings are easement cases. But that’s just not true. The right to have your land in its natural state supported by neighbouring land is
not an easement (buildings on your land are different) and nor is the right that the defendant not block up the entrance to your land, or divert a stream running through your property. These are automatic incidents of the ownership of land. You don’t need
to acquire them. The same would surely be true in the case of a vacuum pump that sucks all the air out of your property (Roderick Bagshaw’s example). No invasion or boundary crossing there, and I hope that the right not to have you do that isn’t one I need
to acquire! The only examples in Lord Leggatt’s list that involve acquired rights (as he himself makes clear) are the rights to air and light.
It doesn’t follow that private nuisance doesn’t have boundaries. Any tort of course does. If what X says about Y doesn’t have a tendency to lower Y’s reputation, it can’t be defamatory as it falls outside the definitional
limits of the tort. Similarly, if what I do doesn’t affect the use and enjoyment of your land, but say just reduces its resale value, or reduces the profitability of a business you run there, then it falls outside the definitional limits of private nuisance.
That’s why Victoria Park Racing was rightly decided. But subject to that caveat (which I think is implicit in what Lord Leggatt says at [11]), I agree with him.
Finally, to reiterate I think you are wrong to characterise the wrong in
Fearn as “an interference with my right merely by being looked at”. It’s the impact on the land that matters, not the fact that you are being looked at. Similarly, it’s not the fact that you can hear noise that makes it a noise nuisance. It’s the fact
that the noise diminishes the usability of your property. That’s why it doesn’t matter whether you are living there or not/hypersensitive to noise or deaf, etc.
All best
Donal
From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: 02 February 2023 10:37
To: Donal Nolan <donal.nolan@law.ox.ac.uk>; Jeannie Paterson <jeanniep@unimelb.edu.au>; Neil Foster <neil.foster@newcastle.edu.au>;
Katy Barnett <k.barnett@unimelb.edu.au>; Peter Radan <peter.radan@mq.edu.au>; Nicole Moreham <nicole.moreham@vuw.ac.nz>;
Jason W Neyers <jneyers@uwo.ca>; davidrwingfield <davidrwingfield@gmail.com>; Robert Stevens <robert.stevens@law.ox.ac.uk>
Cc: Alexander Georgiou <alexander.georgiou@all-souls.ox.ac.uk>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance in the UK Supreme Court
I’m afraid I don’t follow the point made at [13]. As I said, all of the cases cited there involve easements, which are a different kind of right to the right in play here because it involves right in . So for example,
if I have a right to light and you block it, you are physically interfering with the subject matter of my right.
But in a case involving merely the ordinary rights of a freeholder, there is no interference with my right merely by being looked at. The only authority Lord Leggatt has is
Costaki, which may as well be the Re Endacott of the law nuisance, and better rationalised a public nuisance case in any event.
The whole section begins at [12] with a palpably incorrect statement: “there is no conceptual or a priori limit to what can constitute a nuisance”. Unless Lord Leggatt intended to overrule
Hunter and the , how can this possibly be correct? Lord Leggatt’s explanation that the question was left open seems not to be a fair reading of the case. They left open room for exceptions to the general rule, but Lord Goff was clearly formulating a
general conceptual limit:
Certainly it can be asserted with force that for many people television transcends the function of mere entertainment, and in particular that for the aged, the lonely and the bedridden
it must provide a great distraction and relief from the circumscribed nature of their lives. That interference with such an amenity might in appropriate circumstances be protected by the law of nuisance has been recognised in Canada
However, as I see the present case, there is a more formidable obstacle to this claim… In the result I find myself to be in agreement on this point with Pill L.J., who delivered the judgment
of the Court of Appeal, when he expressed the opinion that no action lay in private nuisance for interference with television caused by the mere presence of a building.
What Lord Goff appears to have been leaving open, given his references to Bridlington was that it may be arguable that the presence of a transmitter (which emanates EM radiation onto the claimants land) may constitute
a nuisance. I don’t see any room to doubt that Lord Goff considered that there was a general conceptual limit on nuisance (i.e. no claim for negative immissionen)
Furthermore, plainly there is no actionable nuisance where a claimant interferes with rights to light, air, free passage etc. Lord Leggatt’s reference to “acquired” rights gives the game away here. No matter how impossible
a lack of support, air, light etc. makes the use of your land, without an easement you will never have a claim.
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: Donal Nolan <donal.nolan@law.ox.ac.uk>
Sent: 02 February 2023 10:10
To: Jeannie Paterson <jeanniep@unimelb.edu.au>; Neil Foster <neil.foster@newcastle.edu.au>; Katy Barnett <k.barnett@unimelb.edu.au>;
Peter Radan <peter.radan@mq.edu.au>; Nicole Moreham <nicole.moreham@vuw.ac.nz>; Jason W Neyers <jneyers@uwo.ca>; davidrwingfield <davidrwingfield@gmail.com>;
Robert Stevens <robert.stevens@law.ox.ac.uk>
Cc: Alexander Georgiou <alexander.georgiou@all-souls.ox.ac.uk>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance in the UK Supreme Court
I think it’s taken me longer to read through the email thread than the judgments…so apologies for adding to the burden for others, but…
I agree with what Jason Grant Allen is saying/suggesting. The ‘legal object’ idea is consistent with the way that nuisance protects rights over land (easements, profits). As far as I can tell most of the important early
nuisance cases concerned easements. And even today if someone substantially interferes with your use of your right of way, etc, it’s a claim in nuisance that you can bring.
Conversely, I don’t agree with Jason Neyers when he says that “there must be some emanation invading the claimants property to constitute a nuisance (a right interference)”. Indeed I don’t
really know what Jason is saying here. I think he means that he thinks that it should be the law that “there must be some emanation invading the claimants property to constitute a nuisance (a right interference)”. But it isn’t, and never has been, the
law, as Lord Leggatt points out (“there is no requirement that the interference must be caused by a physical invasion” (at [13])). So as
a descriptive claim it is simply wrong. And if interpreted as a normative claim it’s just assertion. As for Jason’s reference to
Bradford v Pickles, it’s a non-sequitur to say that just because one form of interference with the utility of land is actionable all must be. And his example of imprisoning the landowner is a red herring. The essence of private nuisance is an interference
with the abstract usability of the land (Lord Leggatt again, at [11]: “the harm from which the law protects a claimant is
diminution in the utility and amenity value of the claimant’s land”.) Nuisance is not an interference with
X’s personal ability to use the land, though X needs a proprietary interest in the land in order to bring a claim for the tort.
If Rob’s claim is the same as Jason’s then it is wrong for the same reasons. But I understood Rob’s claim to be different. For example Rob’s claim would seem to cover a case of blocking access to the land, whereas Jason’s
wouldn’t. My problem with Rob’s claim is that the word ‘physical’ is acting as a qualifier of the basic idea of nuisance (viz an interference with the usability of the land), and (a) I don’t see why we need the qualifier; and (b) I don’t know what it means.
If the owners of the Bankside flats can’t use their ‘winter gardens’ because of loud noise, it’s capable of being a nuisance. But if they can’t use them because there are hundreds of tourists staring at them and taking photos of them, etc, then it’s not. Why?
To suggest that the latter is merely a matter of being offended by what the tourists are doing is fanciful. And if the practical reality is that the ability to use the land is seriously diminished, then there is no a priori reason why this cannot be characterised
as a nuisance. (And just to be clear, if we think that practical realities don’t matter and are more concerned with the direction in which photons are passing then I think we have lost sight of what private law is about.) For the same reason I don’t agree
with Bill that the UKSC is protecting “non-title based ‘rights’ such as not to be looked at”. That is not what they are saying. They are saying that the visual intrusion substantially interferes with the utility of the land itself.
None of this means that it was a good idea to recognise ‘visual intrusion’ as a form of private nuisance. It probably wasn’t, and much will depend on whether the guidance is clear enough to limit the scope of
the decision. Doubtless the lower courts will now have to make those limits clear. This is Neil’s point about the need for bright line rules to prevent lots of pointless litigation. And to respond to Jeannie I agree that this kind of argument can be over-used,
but I think it’s a matter of judgment/degree. That’s why my feeling is that extending nuisance in this way wasn’t a great idea, but if it proves possible to draw a sufficiently clear line around this idea of ‘visual intrusion’ then fine.
There are many other aspects of the decision worthy of comment. Many are to be welcomed (eg, the clarity of the analysis on coming to the nuisance and public benefit arguments). But to my mind there is also real danger
in the majority’s reliance on the concept of a ‘common and ordinary use’ of land. It’s an inherently vague concept and seems to me to be contrary to principle, as Lord Sales points out in dissent. I suspect it will cause a lot of problems going forward. In
the Southwark LBC v Tanner case a similar claim was made, but the House of Lords at least qualified it by saying that ‘an ordinary use of
residential premises’ could not amount to a nuisance. However the UKSC majority in
Fearn do not qualify their claim in the same way. Cue every defendant in a nuisance case arguing that they are “merely using [their] premises in a common and ordinary way and acting with as much consideration for neighbouring
occupiers as can reasonably be expected” and hence cannot be liable in nuisance (at [72]).
All best
Donal
From: Jeannie Paterson <jeanniep@unimelb.edu.au>
Sent: 02 February 2023 06:05
To: Neil Foster <neil.foster@newcastle.edu.au>; Katy Barnett <k.barnett@unimelb.edu.au>; Peter Radan <peter.radan@mq.edu.au>;
Nicole Moreham <nicole.moreham@vuw.ac.nz>; Jason W Neyers <jneyers@uwo.ca>; davidrwingfield <davidrwingfield@gmail.com>; Robert
Stevens <robert.stevens@law.ox.ac.uk>
Cc: Alexander Georgiou <alexander.georgiou@all-souls.ox.ac.uk>; obligations <obligations@uwo.ca>
Subject: Re: Nuisance in the UK Supreme Court
I hesitate to even suggest I disagree with you Neil as you are the absolute master of sounds and sensible legal analysis and an absolute legend of tort scholarship, but
….
“Sometimes the law needs black lines to prevent useless litigation” - sometimes the law needs to evolve and fuzzy boundaries at the edge don’t
make the law unworkable. Values also change over time. At this moment in time, social media means ‘mere’ overlooking (and others have pointed out that this was not mere overlooking) is a far greater intrusion on the enjoyment of land that would have been the
case in 1937. Yes that might be dealt with better through a privacy tort but that isn’t a perfect fit either …
Jeannie Marie Paterson
| Melbourne Law School | The University of Melbourne
From:
Neil Foster <neil.foster@newcastle.edu.au>
Date: Thursday, 2 February 2023 at 4:53 pm
To: Katy Barnett <k.barnett@unimelb.edu.au>, Peter Radan <peter.radan@mq.edu.au>, Nicole Moreham <nicole.moreham@vuw.ac.nz>,
Jason W Neyers <jneyers@uwo.ca>, davidrwingfield <davidrwingfield@gmail.com>, robert.stevens <robert.stevens@law.ox.ac.uk>
Cc: alexander.georgiou <alexander.georgiou@all-souls.ox.ac.uk>, obligations <obligations@uwo.ca>
Subject: [EXT] Re: Nuisance in the UK Supreme Court
|
External email: Please exercise caution |
Dear Colleagues;
Let me add my voice to those Australians here who have said this decision is unlikely to be followed here, especially as it would involve over-ruling the High Court of Australia’s decision in
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, in which Dixon J was part of the majority. I write to say that, with respect, the majority in
Fearn are wrong to say that Victoria Park can somehow be distinguished from this case. Lord Leggatt at [99] says:
The real issue was whether the broadcasting of a commentary on the races was a nuisance. The claim failed because the majority of the court held that, as Dixon J put it at
p 508, “the substance of the plaintiff’s complaint goes to interference, not with its enjoyment of the land, but with the profitable conduct of its business”.
Of course, the issue in the case
for the plaintiff was the undermining of the business model. But the legal issue was whether the acknowledged impact on the business gave rise to an action in nuisance, because it involved an interference with a
legal right that the plaintiff had. And that legal right could only be described as a right not to have activities on their land observed and broadcast to others. At 507 Dixon J said:
the natural rights of an occupier do not include freedom from the view and inspection of neighbouring occupiers or of other persons who enable themselves to overlook
the premises.
In the same paragraph from which Lord Leggatt’s quote above is taken on 508, Dixon J says:
So far as freedom from view or inspection is a natural or acquired physical characteristic of the site, giving it value for the purpose of the business or pursuit
which the plaintiff conducts, it is a characteristic which is not a legally protected interest.
His quoted comment about the “substance of the plaintiff’s complaint” being interference with the business was part of him saying “and hence the plaintiff has no remedy”. A mere interference
with profits not accompanied by a breach of a legal right was not actionable. But the majority are all clear that a right to prevent other people from observing one’s activities is not a right protected by the common law.
That has changed now in the UK, but for reasons set out by Rob and Jason and others, I do not think it will be seen to be a good change. Sometimes the law needs black lines to prevent useless
litigation. While it seems like the actions of the Tate here amount to a clear example of substantial interference by an uncommon and unusual use of one’s land, the fact is that there are many, many other possible scenarios where time and effort will now be
expended arguing that some act of overlooking is at the Tate end of the spectrum.
The other question I have not seen addressed is this: once we say that my enjoyment of my land can be legally interfered with by overlooking, where is the rationale for saying that removing
my view cannot be actionable? Lord Leggatt here seems at one point to say that we all have right to build what we want to on our own land, but there seems no logical reason to distinguish the situations.
[36]…interference with the use of the claimants’ land caused by the mere presence of a building on the defendant’s land could not give rise to a claim for private
nuisance. The same principle explains why no claim lies for interference with a view or prospect.
But according to Lord Leggatt at [12] there is “no conceptual or a priori limit to what can constitute a nuisance.” (A proposition for which no authority at all is offered!) So I would expect
some claims for view-interference after this case.
Regards
Neil
NEIL FOSTER
Associate Professor, Newcastle
School of Law and Justice
College of Human and Social Futures
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
Further details: http://www.newcastle.edu.au/profile/neil-foster
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From:
"k.barnett@unimelb.edu.au" <k.barnett@unimelb.edu.au>
Date: Thursday, 2 February 2023 at 2:47 pm
To: "peter.radan@mq.edu.au" <peter.radan@mq.edu.au>, 'Nicole Moreham' <nicole.moreham@vuw.ac.nz>, "jneyers@uwo.ca"
<jneyers@uwo.ca>, davidrwingfield <davidrwingfield@gmail.com>, Robert Stevens <robert.stevens@law.ox.ac.uk>
Cc: "alexander.georgiou" <alexander.georgiou@all-souls.ox.ac.uk>, "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Re: Nuisance in the UK Supreme Court
I second Peter’s interest in the remedy. How will the public interest play into the post-Lawrence
environment? Will an injunction be awarded, or simply damages in lieu?
P.S. Being an Australian, my first thought was to think that
Victoria Park Racing would not allow such a result here, and I think rightly so. Fundamentally, as Bill noted below, I wonder if this is better dealt with as a planning issue rather than a nuisance issue. But open to persuasion to the contrary…
Katy
Barnett | Professor
Melbourne Law School
Level 7, 185 Pelham Street, Carlton
The University of Melbourne, Victoria 3010 Australia
T: +61
3 9035 4699 E: k.barnett@unimelb.edu.au
SSRN |
Twitter: @drkatybarnett | Postal address: Level 2, Melbourne Law School
Barnett and Gans, Guilty
Pigs: the weird and wonderful history of animal law (Latrobe University Press, 2022)
Barnett,
Damages for Breach of Contract
(Sweet & Maxwell, 2022)
Forthcoming in Jan 2023: Barnett, Yin and Allcock,
Remedies Cases and Materials in Australian Private Law
(Cambridge University Press, 2023)
to accompany Barnett and Harder, Remedies
in Australian Private Law (Cambridge University Press, 2018)
From:
Peter Radan <peter.radan@mq.edu.au>
Date: Thursday, 2 February 2023 at 1:32 pm
To: Nicole Moreham <nicole.moreham@vuw.ac.nz>, Jason W Neyers <jneyers@uwo.ca>, davidrwingfield <davidrwingfield@gmail.com>,
robert.stevens <robert.stevens@law.ox.ac.uk>
Cc: alexander.georgiou <alexander.georgiou@all-souls.ox.ac.uk>, obligations <obligations@uwo.ca>
Subject: [EXT] Re: Nuisance in the UK Supreme Court
|
External email: Please exercise caution |
Colleagues,
Not being a tort lawyer, my interest in this case was the brief mentions of
Lawrence in the context of the remedy that may be ordered when the case goes for hearing on that issue. Lord Reed, at [120] may the fair point that
Lawrence's major point was the importance of taking the public interest into account when determining whether to grant equitable damages in lieu of or in addition to the injunction.
What will be of interest will be if the judge takes the more measured approach suggested by Lord Neuberger on this as compared to the more radical approach
by Lord Sumption. The latter would, I suspect, grant damages in lieu. Not so sure that the former would. The remedy case will hopefully give more guidance of the continued significance of
Shelfer.
I can see the judge ordering a limited injunction - certain times when viewing is to be restricted - plus some compensation to the plaintiffs.
On my little knowledge of the tort law situation, Australian courts will not followthe bare majority in Fearn, until and unless the High Court effectively
overrules Victoria Park Racing, which I doubt the present court, at least, will do.
Peter Radan
Professor Peter Radan
Honorary Professor, Macquarie University
Fellow of the Australian Academy of Law
BA, LLB, PhD (Syd), Grad Dip Ed, PhD (UTS)
Macquarie Law School
6 First Walk,
Macquarie University, NSW, 2109
Australia
Email: peter.radan@mq.edu.au
From: Nicole Moreham <nicole.moreham@vuw.ac.nz>
Sent: Thursday, 2 February 2023 8:59 AM
To: Jason W Neyers <jneyers@uwo.ca>; davidrwingfield <davidrwingfield@gmail.com>; robert.stevens <robert.stevens@law.ox.ac.uk>
Cc: alexander.georgiou <alexander.georgiou@all-souls.ox.ac.uk>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance in the UK Supreme Court
Hi All,
Two quick thoughts on this interesting discussion:
- It seems important that the whole point of the Tate’s viewing platform is to encourage visitors to look at the view enjoyed from it and to make recordings of
that view. This means that the Tate has actively encouraged members of the public to look at and photograph a view which includes the inside of the flats. In my view, this distinguishes it from situations where someone builds a building with windows
which point in another land user’s direction. The best analogy I can think of is a building owner installing a video camera pointing at the inside of the neighbour’s house and inviting random members of the public to log in to see a livestream of it.
- I don’t think there is much doubt that unwanted watching and recording can have as much of a negative impact on people as unwanted exposure to noise, dust et
cetera. And there is some good sociological research backing that up. Whether that means nuisance should extend to it is another issue. I still can’t make up my mind about it – I could more readily understand why courts would be prepared to make that extension
before England had a privacy action. That said, the English misuse of private information tort, of course, only extends to breaches of privacy which involve the
dissemination of information or images. Unlike in the US and New Zealand, there has not yet been a case where a person has been liable simply for looking at or recording someone else (so it is still unclear whether even an egregious intrusion like the
videoing of the flatmate in the shower in C v Holland would be actionable in tort (although I have argued that it should be)).
Nicole
Professor Nicole Moreham
Faculty of Law
Te Herenga Waka—Victoria University of Wellington
+64 4 463 6410
www.wgtn.ac.nz | 0800
04 04 04
From: Jason W Neyers <jneyers@uwo.ca>
Sent: Thursday, 2 February 2023 5:33 am
To: davidrwingfield <davidrwingfield@gmail.com>; robert.stevens <robert.stevens@law.ox.ac.uk>
Cc: alexander.georgiou <alexander.georgiou@all-souls.ox.ac.uk>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance in the UK Supreme Court
If someone built a housing complex surrounding the CN tower does it become a nuisance?
I’m still at a loss how a “viewing platform” allowing views of the city is any different than a ceiling to floor wall of windows that is ubiquitous in modern cities.
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)
From: David R Wingfield <davidrwingfield@gmail.com>
Sent: February 1, 2023 11:27 AM
To: robert.stevens <robert.stevens@law.ox.ac.uk>
Cc: alexander.georgiou <alexander.georgiou@all-souls.ox.ac.uk>; Jason W Neyers <jneyers@uwo.ca>;
obligations <obligations@uwo.ca>
Subject: Re: Nuisance in the UK Supreme Court
I’m curious: does anyone think that it’s right that the Tate constructs a viewing platform allowing hundreds of thousands of people to look into the flats next door forcing those people to change how they use their
property? The evidence seems overwhelming that the people on the Tate’s viewing platform were destroying the ability of the people who owned the flats to enjoy their property. If so then it’s not obvious to me why the law of nuisance isn’t available here.
The common law develops to solve problems like this.
David
Sent from my iPhone
On Feb 1, 2023, at 11:07 AM, Robert Stevens <robert.stevens@law.ox.ac.uk> wrote:
At [15] the court expressly contemplates an activity by another being so offensive as to amount to a nuisance in relation to my right to my land.
Which is news to me.
Of course, whether I am so inhibited by the offensive sign (“draw the curtains!”) so as to amount to a nuisance or not is a question of “reasonableness” but that is the “control device”.
Again, the sex shop and brothel cases should have been dealt with in public nuisance. They’re nothing to do with the physical space that the claimant has title to. Unlike noise, smells, vibrations etc.
From: Alexander Georgiou <alexander.georgiou@all-souls.ox.ac.uk>
Sent: 01 February 2023 15:36
To: Jason W Neyers <jneyers@uwo.ca>
Cc: Alexander Georgiou <alexander.georgiou@all-souls.ox.ac.uk>; obligations <obligations@uwo.ca>
Subject: Re: Nuisance in the UK Supreme Court
Jason, I’m not sure that is correct about Bradford. Accepting that one’s right to land includes a right to the use and enjoyment of that land does not requiring accepting that such a right encompasses all possible ways of using and enjoying land. There is, I think, a distinction to be drawn between enjoyment of the land itself and the doing of things on the land which are nonetheless unconnected to the land. Nuisance protects the former; i.e., the enjoyment of the land qaa land. The distinction, I think, maps onto Leggatt’s concept of ordinariness: typical or ordinary activities are those which involve enjoyment of the land itself. (This, I accept, may change over time; it is a question of social fact). The making use of percolating water is not such a use, in my view.
(By the same token, I don’t think Rob's example about the offensive sign is to the point. The sign may cause my personal displeasure, but it does not inhibit any activity I may wish to undertake).
I do find your false imprisonment example challenging though…
A
On 1 Feb 2023, at 14:55, Jason W Neyers <jneyers@uwo.ca> wrote:
On Alex’s view, Bradford v Pickles is now wrongly decided as well since being denied water on my land must surely affect my use of it. Additionally, all false imprisonments of landowners must also concurrently be a private nuisance since being able to get to my property is necessary for its use; as are all public nuisances which stop landowners from reaching their land (which is not the current demarcation between the two torts). One could continue.
A rationale for a decision, which when taken to its conceptual conclusion, overturns so much law, must be wrong. Good explanations tell one both where to begin and where to stop, see Seavey.
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)
From: Alexander Georgiou <alexander.georgiou@all-souls.ox.ac.uk>
Sent: February 1, 2023 9:34 AM
To: robert.stevens <robert.stevens@law.ox.ac.uk>
Cc: Jason W Neyers <jneyers@uwo.ca>; t.h.liau@lse.ac.uk; MHoyle <MHoyle@oeclaw.co.uk>; obligations <obligations@uwo.ca>
Subject: Re: Nuisance in the UK Supreme Court
Being watched can affect one’s use of physical space as much as—probably more than—smells.
A
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
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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.
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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.
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.
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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
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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