Fearn and others v Board of Trustees of the Tate Gallery

Robyn Cunningham analyses the decision in Fearn & Ors v Board of Trustees of the Tate Gallery: [2023] UKSC 4

The Tate Modern’s Blavatnik Building, which opened in 2016, boasts a 360 degree panorama of the London skyline from its top floor viewing platform. Unfortunately, the platform also affords views directly into the flats of a neighbouring block which forms part of the Neo Bankside development. Flats with walls made almost entirely of transparent glass. At first instance, Mann J found that the interior of these flats are of particular interest to many visitors: “Some look, some peer, some photograph, some wave. Occasionally binoculars are used.”

The lessees of the afflicted block sought an injunction requiring the Tate to prevent members of the public from viewing their flats from the platform or alternatively damages. Their claim was based on the common law of private nuisance.

The Supreme Court held, with a majority of three to two, that the harm complained of did amount to an actionable nuisance, reversing the judge and the Court of Appeal below.

Lord Leggatt gave the majority judgment.

1. First, Lord Leggatt confirmed the foundational principles of the tort of private nuisance:

i. The relevant harm is the diminution in the utility and amenity value of the claimant’s land, and not personal discomfort to the persons who are occupying it ([9] – [11]).

ii. There is no conceptual or a priori limit to what can constitute a nuisance ([12] – [17]).

iii. The question for the court is: Has the defendant’s use of land caused a substantial interference with the ordinary use of the claimant’s land ([21]). There is then discussion of how “substantial” and “ordinary” should be defined and the various relevant principles which inform that analysis ([12] – [17]).

2. The Supreme Court identified the following pertinent features of the case:

i. “The viewing and photography which take place from the Tate’s building cause a substantial interference with the ordinary use and enjoyment of the claimants’ properties.” ([48]). Lord Leggatt likened it to “being on display in a zoo”.

ii. “Inviting members of the public to look out from a viewing gallery is manifestly a very particular and exceptional use of land.” ([50]).

iii. It does not matter who was there first ([51]). Although, that issue was not material as the claimants had all bought their flats a couple of years earlier in 2013/2014.

3. It was held that the Court of Appeal was right to find that liability in nuisance does not extend to “overlooking”. However, the Court of Appeal erred in “supposing that this claim is about “overlooking”” ([89]). The complaint was not that the block was overlooked by the Blavatnik Building. The complaint was that “the Tate actively invites members of the public to visit and look out from that location in every direction” ([92]). This is undoubtedly an important distinction which may avoid a proliferation of claims between neighbouring blocks. Lord Leggatt may have had this in mind when his Lordship drew the following analogy:

“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”

4. The Supreme Court largely rejected the Court of Appeal’s reasoning in relation to policy ([105] – [113]) and found that concerns relating to public interest may have caused the judge and the Court of Appeal to reach the wrong conclusion ([114] – [126]).

5. The matter was remitted to the High Court to determine the appropriate remedy ([133]).

6. Lord Sales gave the dissenting judgment with which Lord Kitchin agreed. Their Lordships believed the matter turned on two questions ([134]):

i. Can visual intrusion be a nuisance?

ii. Was there a nuisance in this case?

7. In regard to (i), Lord Sales reviewed the authorities and concluded that the tort of private nuisance can cover “instances of intense visual intrusion at the level which has occurred in this case” ([175] and [179]).

8. However, in considering the formulation of the law of private nuisance his Lordship observed that the “unifying principle underlying the tort is reasonableness between neighbours…” ([158]) (Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 applied). It is this question of “reasonable reciprocity and compromise, or “give and take”” ([209]) that underpins the reasoning adopted in relation to question (ii).

9. Lord Sales explained what was meant by the principle of “give and take” which “is to allow the court to determine the point at which a reasonable reconciliation between the property rights of different landowners can be achieved, and the opportunities for one or other to take action themselves to help achieve that are relevant.”([216]).

10. In applying the “give and take” approach his Lordship made the following observations:

i. The claimants use of the land, residing in entirely glass fronted flats, was itself an “unusual” use of land ([228]).

ii. “A claimant landowner and a defendant landowner may each wish to use their property in ways which are not in themselves common and ordinary according to the standards of the locale, and the test to govern any conflict between those uses has to be capable of accommodating such situations in a just manner…” ([229])

iii. “[T]o make a claim in nuisance turn on the question whether the defendant’s use of its land is common and ordinary would result in the law of nuisance having a disproportionate impact on the general right of a landowner to use its land as it wishes and would cause stultification of development of land to an unnecessary and unjustified degree.” ([230])

iv. Questions of “common and ordinary usage of land” alone cannot provide a solution. There needs to be an element of reasonableness. His Lordship expressed concerned the in a “vibrant and changing modern society” an actionable nuisance of visual intrusion should not be permitted to frustrate developments that are not simply “common and ordinary” ([234]).

v. Reasonableness is an appropriate and workable standard as “the whole law of nuisance is shot through with the need for assessments of reasonableness” ([240]).

vi. “A test based on common and ordinary use by the defendant is contrary to the way the relevant principle is formulated in the modern authorities.” ([240]).

11. Lord Sales concluded that “an approach based on the principle of reasonable reciprocity and compromise and application of a standard of objective reasonableness informed by the character of the relevant locality is preferable to one based simply on whether the defendant’s use of its land is “common and ordinary”.” ([252]).

12. The dissenting judgment adopts a more pragmatic approach which seeks to protect a landowner’s right to develop something beyond the “common and ordinary”. Whether the judgment of the majority will impact development in the way envisaged by the Court of Appeal and Lords Sales and Kitchin will turn on how the Courts apply the principles in this case, which unquestionably concerns two extraordinary and unusual buildings, to more ordinary developments.