Nuisance after Fearn v Tate Gallery
Background
The Neo Bankside development (“the Development”) consists of four purpose built residential towers on Holland Street, London. A stone’s throw from the south bank of the River Thames. Each has 21 floors and is designed to maximise the area of glass on each floor thereby giving the occupier a panoramic view of the city. Each tower was completed in 2013 / 2014 and subject to long leaseholds. Leases of many of the flats within the Development sell for over £1 million.
Across Holland Street and next to the Millenium Bridge is the Tate Modern gallery. In 2016 Tate Modern completed the construction of the Blavatnik Building. This is adjacent to the main building and in the form of a twisted pyramid including a 360 degree viewing gallery open to visitors. Block C of the Development (“Block C”) is the closest to the Blavatnik Building. The gap between the two is about 34 metres. The viewing gallery is at the height of floors 18 and 19 of Block C.
The Development and the Blavatnik Building are substantial developments and planning for both took a long period. There was an overlap between the applications for planning permission. At one stage there was a proposal to include angled glass and like features in the viewing gallery. However, this proposal was not pursued in amended plans. Thereafter, neither the planning consultants for Tate Modern nor the local planning authority considered in any detail the desirability of restricting viewing in the direction of the Development. Even after the Development opened, the plans for the Blavatnik Building could have been amendment, but were not.
The Court considered the relationship in space between the Development and the Blavatnik Building in detail, but it is not easy to see the problem without the benefit of Google Maps. A visitor to the viewing gallery would want to look downwards to the North to view the river. Such a visitor would also want to view the Houses of Parliament and the London Eye to the South West but these are some distance away. The visitor would probably be content to view these distant landmarks without looking down. In principle, the viewing gallery could have been designed to prevent viewing downwards in the South West direction (or indeed Southwards generally). Putting the matter another way, there is not much to look at immediately to the South of Tate Modern.
Once opened, the viewing gallery became very popular with visitors of Tate Modern. At any one time the viewing gallery could accommodate up to 300 visitors. Such visitors watched, filmed and photographed residents of Block C on a virtually constant basis. Some even used binoculars. For the affected residents of Block C, the intrusion was relentless and akin to being in a zoo. Tate Modern did put up signs in the viewing gallery suggesting that the privacy of the residents should be respected. These were largely ignored.
The residents of Block C most affected (ranging from floors 13 to 21) commenced proceedings to require Tate Modern to cordon off part of the viewing gallery so as to prevent the viewing referred to above.
Initial observations
At first sight, one might be forgiven for thinking that the issues of the claim would be limited to the required remedy and that liability would not be a serious issue. The claimants were leaseholders of flats within Block C (with exclusive possession) and have a sufficient proprietary interest to bring a claim in private nuisance (see Hunter v Canary Wharf Ltd [1997] AC 655). The types of activity giving rise to private nuisance are not closed. In principle, private nuisance could apply to interference with television signals (see Hunter v Canary Wharf). It could apply to damage caused by Japanese knotweed (see Williams v Network Rail [2019] QB 601). Private nuisance ought to apply to viewing in an appropriately extreme case.
The standard test or methodology involves asking three questions being as follows:
1) Is the defendant’s use of its land “common or ordinary” in the locality? Some cases use “or” and some “and” without any discussion of the differences. If the defendant’s use of its land is “common or ordinary” then it may be able to avoid liability by relying upon the defence of “reasonable user” or “give and take” that is to say user necessary for the ordinary or common use of the land (see speech of Lord Goff in Cambridge Water Co. v Eastern Counties Leather PLC [1994] 2 AC 264 at page 299E).
2) Is the claimants’ use of their land “common or ordinary” in the locality?
3) Is there a substantial interference with the use of the claimants’ land?
The creation and use of the viewing gallery is now unlawful and might be desirable from a commercial perspective, but it is hardly “common or ordinary” in this or any other locality. It is unique and this is its selling point. The interference is substantial because it deprives the residents of flats from being able to use them in the usual way that people do. For some residents, it made their life a misery. Insofar as this might be relevant, Tate Modern had every opportunity to design the Blavatnik Building so as to mitigate the effects on the residents of the Development, but did not to do so.
However, this is not the way in which the case proceeded until the Supreme Court decision on 1st February 2023.
The decision of Mann J at first instance ([2019] Ch 369)
The claim was brought on two bases. The first was that Tate Modern was undertaking “functions of a public nature” and thereby bound to act fairly under section 6(3)(b) of the Human Rights Act 1998. It was claimed that it had not done so by facilitating viewing of the nature described. The second was that the acts constituted private nuisance and that the Court was entitled to take into account the right to privacy under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) in order to extend if necessary the remit of private nuisance.
The Judge found that Tate Modern was not undertaking “functions of a public nature” even though it was publicly funded. This would only apply if the functions were of the nature normally undertaken by a Government agency.
As to private nuisance, the Judge considered that the requirement for the protection of privacy under the Convention enabled him to extend the tort of private nuisance (if necessary) so as to include viewing which interfered with such privacy. However, the Judge concluded that there had been no substantial interference with the claimants’ reasonable user of the flats for the following reasons:
1) The way in which the viewing gallery had been operated was not unlawful or “unreasonable”.
2) The claimants had created a “self-induced sensitivity” to viewing by deciding to live in flats which had been constructed so as to maximise glass frontage.
3) The claimants could take steps to deal with the problem whether by installing tinted glass or curtains other otherwise.
Accordingly, the claim was dismissed.
I found the decision at the time troubling.
1) As to the first point, the reference to user which was not “unreasonable” seemed to be misplaced. Mann J did not conclude that Tate Modern’s user was “common or ordinary”. Accordingly, “reasonable user” or “give and take” should not apply.
2) As to the second point, this is normally an argument which judges hate. The amount of glass used in the construction of the towers enabled the residents of to enjoy their flats to their best advantage. Nothing more. Some years ago, I acted for an offal factory which had increased its production intensity. Nearby residents brought claims against it for private nuisance relating to noxious smells and noise. One of the arguments which the offal factory used was that these residents had created or worsened the problem by installing patio doors in their homes which they liked to keep open during the trading hours of the offal factory. As might be expected, this argument went down like a lead balloon. In my experience, similar arguments normally do. As a general rule, judges are the sort of people who like to enjoy their homes to their best advantage and empathize with a claimant who wishes to do so. There is also an element of blaming the victim, which is unattractive.
3) This seems to be an issue as to remedy rather than the existence of a cause of action.
The decision of the Court of Appeal ([2020] EWCA Civ 104)
Before the Court of Appeal, the case took a different direction.
All three judges disagreed with the approach taken by Mann J as to substantial interference. None accepted that the claimants had created a “self-induced sensitivity”. The claimants were just enjoying their flats as people do.
However, all three judges concluded that the weight of judicial authority was to the effect that “mere overlooking” from one property to another was not capable of giving rise to a cause of action in private nuisance. Article 8 of the Convention could not assist in extending the ambit of private nuisance because concepts of privacy under the Convention were distinct from property rights protected under the law of private nuisance. Privacy is attached to the person. Private nuisance is a property tort linked inextricably with rights to enjoy property.
I found the decision at the time troubling because the essence of the tort of private nuisance is that it evolves with time, technology and the innate ability of the species to interfere with the rights of neighbours. It clearly applies to vibrations on one property which affect the neighbouring property. This type of vibration would not have been dreamt of when the tort originated. Neither would residential tower blocks lined with glass. In any event, the viewing by visitors was not “mere overlooking” in the sense that it arises merely because one property is higher than another. It was deliberate and intensive viewing for pleasure or amusement. Tate Modern had effectively encouraged its visitors to do so.
The decision of the Supreme Court
All five judges concluded that the tort of private nuisance was wide enough to enable a claim relating to viewing provided that it was sufficiently intensive. Insofar as this was relevant, the actions of the visitors of Tate Modern amounted to far more than the facilitation or encouragement of “mere viewing”. The fact that there had been no reported case to date relating to such a claim was not important. Article 8 of the Convention has no part to play in assessing the scope of the tort or private nuisance or any similar property tort.
The majority of the Supreme Court (Lords Leggatt, Reed and Lloyd-Jones) accepted the criticisms of the Court of Appeal with regard to the decision of Mann J and concluded what there had been substantial interference with the claimants’ “common or ordinary” user of their flats. While there was a balance between the conflicting right of neighbouring owners to be maintained (see Sedleigh-Denflield v O’Callaghan [1940] AC 880) the balancing exercise required the Court to intervene and relief would be granted. Lord Leggatt, who gave the speech of the majority, was scathing about the judgments below and considered that they may have been motivated by a desire to prefer the rights of the many visitors to Tate Modern at the expense of a few rich residents of the flats. In this regard, Lord Leggatt may be inferring more than is obvious from the judgments themselves. It is an unfair criticism of the Court of Appeal as all three judges would have found for the claimants but for the fundamental issue as to the nature of the actions giving rise to a private nuisance claim.
The speech of the minority (Lords Sales and Kitchin) is not easy to follow. They do not appear to have accepted the argument that the claimants created “a self-induced sensitivity”. However, they refused to interfere with the judgment of Mann J on the basis that private nuisance involves at its very essence the concept of “reasonable user” or “give and take”. For the minority, these concepts were not limited to actions required for “common or ordinary” user. The minority considered that residents of the flats were in a position to take steps to mitigate the problem and they should do so rather than Tate Modern.
The analysis of the minority is perplexing for a number of reasons including the following:
1) The natural reading of the speech of Lord Goff in Cambridge Water limits “reasonable user” or “give and take” to actions required for “common or ordinary” user. No judge took the view that there was “common or ordinary” user of Tate Modern’s land.
2) Extending the defence of “reasonable user” or “give and take” to situations where the user is not “common or ordinary” creates uncertainty and changes the whole nature of the liability. A person who constructs a property which is not “common or ordinary” in the locality (or commences a use which is not “common or ordinary” from an existing building) ought to assess and mitigate the consequences for his neighbours of such use. He is best placed to do so and mitigation can be filtered into the cost. One might be forgiven for thinking that these steps would be taken in conjunction with (or at the direction of) the planning authorities. On the facts, Tate Modern had been given every opportunity to construct the Blavatnik Building in a way which mitigated the obvious potential damage to the residents of Block C caused by hundreds of visitors gawping at them. It had taken none of these opportunities and had made no proposals to restrict the usage of the viewing gallery thereafter.
The law after the judgment
In a case with just two issues, it is surprising to find such fundamental difference of approach by the judiciary. As to the two issues, the nine judges considering the same decided as follows:
1) Nuisance applies to viewing (6 to 3).
2) There was substantial interference (6 to 3).
However, there were only three judges who found both. Fortunately, they were all in the Supreme Court.
The following can be said in the light of the judgment of the Supreme Court:
1) The boundaries of the law of private nuisance are not closed. In appropriate circumstances, viewing can amount to private nuisance.
2) Article 8 of the Convention is of no assistance in determining the ambit of private nuisance or any other property tort.
3) Reliance upon “self-induced sensitivity” arguments as regards residential properties is likely to be very difficult.
4) The standard test for substantial interference is to be applied that is to say the defence of “reasonable user” or “give and take” only apply to actions required for the “common and ordinary” user of the claimant’s land.
Sean Kelly
Parklane Plowden Chambers
22nd February 2023
