Fearn v Board of Trustees of the Tate Gallery

Supreme Court

Citations: [2023] UKSC 4.

Facts

The claimants owned flats overlooked by the defendant’s art gallery. The gallery had a public viewing gallery enabling a 360 degree panoramic view of London. This was a significant source of revenue for the defendant, attracting between 500,000 and 600,000 visitors a year.

From the viewing gallery, visitors could see into the entirety of the living areas of the claimants’ flats. This was in part due to the claimants’ wall-to-ceiling windows. Many visitors looked into the flats, waving at their occupants or taking photographs. Some visitors even used binoculars to see the flats in more detail. The claimants sued the defendants in private nuisance.

The High Court judge held that intrusive viewing of a property can be an actionable nuisance, but on the facts the defendant’s behaviour was reasonable user. This was because the claimant’s had chosen to live in properties with glass walls and could take their own remedial measures such as by using curtains. This made their use especially sensitive.

The Court of Appeal held that the judge’s approach to reasonableness was wrong. However, they held that the claim should still fail because intrusive viewing is not an actionable nuisance. The claimants appealed to the Supreme Court.

Issue(s)

1. Is intrusive viewing an actionable nuisance?
2. Was the defendant’s interference unreasonable user?

Decision

The Supreme Court held in favour of the claimant. They held that ‘intrusive viewing’ is capable of being an actionable interference in private nuisance. The oppressive effect of the viewing on the occupiers’ privacy caused a substantial interference with the claimants’ ordinary use and enjoyment of their property. The Court of Appeal was wrong to hold otherwise.

They also held that the High Court made various legal errors in deciding that the user was reasonable:

• The trial judge had applied the wrong test. They treated the test as concerned with whether the defendant’s behaviour was unreasonable in some general sense. Rather, the correct test was whether the defendant’s use was common and ordinary.
• The High Court was also wrong to hold that the claimants, by having glass walls, engaged in especially sensitive use of their land making the interference reasonable. The glass walls were relevant. They meant that it would not be a nuisance if the occupants of an equally tall block of flats could see into the claimants’ living space by looking out of their own windows. However, this was because the occupants of those hypothetical flats would be engaging in ordinary and common use of their own land. The existence of the glass walls did not change the fact that the defendant’s use of their land was not ordinary or common.
• The trial judge was incorrect to deem the claimant’s ability to take remedial steps relevant to whether the user was reasonable.
• The trial judge had incorrectly deemed the public interest in the defendant’s activities relevant to whether the interference was reasonable. Public interest is only relevant when deciding the remedy.

The Supreme Court held that defendant’s use of the land was unusual and exceptional. There was no viewing platform like it anywhere else in London. The viewing gallery was not necessary for ordinary use of the art gallery. Accordingly, there was no reason to expect the claimants to tolerate the interference caused by that use. Therefore, the defendant was liable in nuisance. They remitted the issue of the appropriate remedy to the High Court.

This Case is Authority For…

What Constitutes and Actionable Interference?

Intrusive viewing of land can constitute an actionable interference in nuisance. This is because ‘[a]n important aspect of the amenity value of real property is the freedom to conduct your life in your own home without being constantly watched and photographed by strangers.’

Lord Leggatt (with whom Lords Reed and Lloyd-Jones agreed) stated that ‘Anything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land is capable of being a nuisance.’ He stressed that nuisance can be caused by any means. The critical issue is whether it affects the land’s utility and amenity value and not just the personal comfort of those occupying it.

Interference is not actionable unless it is also ‘substantial’. This means that it must go beyond a ‘minor annoyance’ or trifling or small complaints. The court assesses this objectively by the standards of an ordinary person in the claimant’s position.

When is User Unreasonable?

Ordinary and usual use of land is not unreasonable user, even if it substantially interferes with the claimant’s land. Interference is unreasonable if it is special or non-ordinary. The test is not whether the defendant acted reasonably in some abstract sense.

That the land, or buildings on it, is especially sensitive to interference is not relevant to whether the interference is unreasonable. The court assesses whether interference is unreasonable by reference to the actual value and amenity use of the claimant’s land. It is not assessed by reference to some hypothetical, optimally or averagely constructed plot of land.

Lord Leggatt noted that there may be an exception for cases where ‘the design or construction of a building is so unusual and far from anything that could actually be expected’ and this unusual nature causes the interference.

That the claimant can take steps to avoid or mitigate the interference is not relevant to whether it is reasonable.

Is the Public Interest Relevant to Private Nuisance?

The Supreme Court noted that the previous courts were likely motivated by ‘a reluctance to decide that the private rights of a few wealthy property owners should prevent the general public from enjoying an unrestricted view of London and a major national museum from providing public access to such a view.’

However, Lord Leggatt explained that the public interest is not relevant to whether a claimant has established nuisance. It is only relevant to the issue of remedy: whether the court should grant an injunction or merely damages in lieu of an injunction.

Obiter Dicta

The House of Lords in Hunter v Canary Wharf [1997] AC 655 held that purely aesthetic interference (e.g. interference with a view/television signals) was non–actionable. However, Lord Leggatt in Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4 stated that

‘the ability to watch television might be regarded as so important a part
of the ordinary enjoyment of property that interference with it could amount to an actionable nuisance. That might have been so where the interference was caused by a special or particular use of the defendant’s land.’

The problem in Hunter, Lord Leggatt argued, was that the interference was caused by the size and design of the defendant’s building. There is a common law principle that ‘anyone may build whatever they like on their land, unless this violates an agreement not to do so or an acquired right to light or to a flow of air through a defined aperture.’ Accordingly, the way in which the defendant in Hunter built their building could not, in principle, amount to unreasonable user.

This indicates that use of land other than buildings may constitute a nuisance if they create aesthetic interference.

Dissent

Lord Sales (with whom Lord Hunter agreed) dissented. Though they accepted that visual intrusion could be an actionable nuisance, they thought the user was reasonable.

• Lord Sales argued that the court should take into account any reasonable steps the claimant can take to avoid the interference. Otherwise, the law places the entire burden of avoiding interference on the defendant, violating the principle of ‘give and take’.
• Lord Sales also disagreed with the fact that the majority had treated the unusual or non-ordinary nature of the use as a strong or determinative factor.
• Rather, he thought the correct test was ‘whether the use meets an objective test of reasonableness encapsulated by the reciprocity principle of “give and take”’.