Fearn and others v Board of Trustees of the Tate Gallery

Facts

The claimants owned flats in a glass-fronted block next to Tate Modern. Visitors to the viewing level of the Tate's extension could see directly into the flats and photograph residents and interiors. The claimants sued in nuisance, saying the constant observation interfered with their ordinary use and enjoyment of their homes, and sought an injunction or damages. The Tate argued that overlooking is not actionable and that the claimants could protect their privacy themselves.

History

The High Court (Mann J) held that the Tate was liable in private nuisance for the visual intrusion from the viewing gallery. The Court of Appeal allowed the Tate appeal and dismissed the claim, and the claimants appealed to the Supreme Court.

Issue

Whether visual intrusion from a neighbouring property can amount to a private nuisance, whether the claimants' flats could be protected given the Tate's argument as to common and ordinary use of land, and whether public benefit prevents liability.

Held

Appeal allowed by a majority. The Tate's use of the viewing gallery was a nuisance, since it caused a substantial interference with the use and enjoyment of the claimants' flats that was not reasonable between neighbours.

Ratio

• Visual intrusion by overlooking is capable of constituting a private nuisance when it substantially interferes with the ordinary use and enjoyment of land, and there is no rule that overlooking can never be actionable.
• The principle that a nuisance is not committed by the common and ordinary use of land is limited to uses that are reasonable and ordinary between neighbours and does not protect a use that generates an unusual and intense intrusion, such as operating a viewing gallery.
• The public benefit of the defendant's activities is not a factor in deciding whether a nuisance exists, though it may be relevant to the choice of remedy.

Key reasoning

• Nuisance protects the claimant's enjoyment of land against unreasonable interference, and the harm from persistent observation by the public can be as significant as noise or smell.
• The Tate's operating a viewing gallery open to thousands of visitors was not an ordinary use of land of the kind the doctrine of common and ordinary use is intended to protect.
• That the claimants could have reduced the intrusion by curtains or other measures did not mean that the Tate was free to impose the burden on them, and the weighing of the Tate's public value belongs to the question of whether an injunction should be granted.

Where it fits in the module

For FHS Tort, Fearn is the starred recent authority on private nuisance and sits within the debate about the balancing of neighbours' interests, the boundaries between nuisance and privacy and the role of public benefit. It tests whether nuisance should be concerned with the protection of land rights or with a broader interest in the amenity of land, and so it connects to the discussion of Hunter v Canary Wharf and the case law on remedies in Coventry v Lawrence [2014] UKSC 13. Students should be ready to assess the majority and minority approaches.

Criticisms

• Treating visual intrusion as a nuisance extends the tort towards a general protection of privacy, which Parliament and the courts have developed elsewhere through other causes of action.
• Leaving public benefit to the stage of remedy may make the law uncertain, because the same public benefit that cannot defeat liability may defeat the injunction, and so the claimant's practical position depends on discretionary factors.
• The reliance on the Tate's unusual use leaves unclear whether residential owners who attract visitors, for example through popular views, could be liable to neighbours.
• It can be argued that the claimants chose to live in glass-walled flats in a dense urban setting, so that some mutual overlooking was to be expected, and that the decision makes neighbours responsible for the consequences of the design of the claimants' own buildings.