Tom Frazer discusses the long-awaited judgment in the case of Fearn v Tate Gallery  UKSC 4 handed down on 1 February 2023, in which the Supreme Court provides a helpful restatement of the principles of private nuisance, and finds, overturning the Court of Appeal, that ‘visual intrusion’ is capable of giving rise to liability in nuisance.
This case concerns the public viewing platform on the top floor of the Tate Modern, which, as well as providing panoramic views over London, provides a direct view into several residential flats located nearby (“the Flats”). The claimants, residents of the Flats, brought the claim in nuisance, seeking an injunction requiring the Tate to prevent the public from looking into their homes.
At first instance, Mann J found that intrusive viewing from a neighbouring property could in principle give rise to a claim in nuisance, but that the intrusion in this case did not give rise to liability. This decision was overturned by the Court of Appeal ( EWCA Civ 104), who found that “overlooking” cannot in law constitute an actionable nuisance.
The Supreme Court has overturned the Court of Appeal’s decision, finding that the Tate is liable in nuisance. The lead judgment was given by Lord Leggatt, with whom Lord Reed and Lord Lloyd-Jones agreed (Lord Sales and Lord Kitchen dissenting).
Restatement of the principles of private nuisance
The judgment begins with a helpful restatement of the principles applicable to private nuisance: -:
- Private nuisance is a tort to land, such that it is the diminution in utility and amenity value of the land, and not the personal discomfort of the occupier, that gives rise to liability -;
- There is no conceptual or a priori limit to what can constitute a nuisance; consequently, there is no theoretical reason why ‘looking in’ cannot form the basis of an action in nuisance -;
- Whilst nuisance is often expressed in terms of ‘unreasonable’ use of land, the ‘reasonableness’ or otherwise of the action complained of is not a test for determining liability. The first question that the court must ask is whether the defendant’s use of land has caused a substantial interference with the ordinary use of the claimant’s land -;
- What constitutes a substantial interference is to be assessed objectively by the standards of an ordinary or average person in the claimant’s position. The courts will not entertain claims for minor annoyances -;
- The priority accorded to the general and ordinary use of land over uncommon usage is fundamental to private nuisance. The law protects a principle of reciprocity as between neighbours. As such, an occupier cannot complain if the use interfered with is not an ordinary use. Similarly, even where the defendant’s activity interferes with the claimant’s ordinary use of land, it will not give rise to liability if the activity is itself no more than an ordinary use of land. The test is whether the acts complained of were (i) necessary for the common and ordinary use and occupation of land and (ii) whether they are conveniently done, with proper consideration for the interests of neighbouring occupiers. This principle has come to be known as the ‘reasonable user’ principle – it is not, as it has sometimes been erroneously treated, a test of reasonableness -;
- The right to build and demolish structures is fundamental to the common and ordinary use of land, and will not be actionable as a nuisance provided it is ‘conveniently done’ -;
- The Supreme Court re-affirmed two historic and well known principles applicable to nuisance, the ‘locality principle’ (think Bermondsey and Belgrave Square), and that coming to a nuisance is not a defence to it. In essence, where certain activities are established in an area/neighbouring parcel of land, those activities are unlikely to constitute a nuisance where they interfere with the ordinary use of the land of a person moving to that area for a different purpose -.
The Supreme Court does not address the sometimes-overlooked requirement of foreseeability as an element of liability in private nuisance. Practitioners using the above summary in Fearn as a starting point for their research should be careful to remember this point.
Applying these principles, Lord Leggatt found that it is ‘beyond doubt’ that the Tate’s viewing platform causes a substantial interference with the ordinary use and enjoyment of the Flats, comparing the occupants’ position to that of animals on display in a zoo .
The Supreme Court has not, however, determined the issue of the appropriate remedy . This question has been referred back to the High Court. It may be that in the course of that decision and any subsequent appeal, the discussion in Lawrence v Fen Tigers Ltd  UKSC 13 as to damagies in lieu of injunctions will be revisited (See Lord Leggatt’s comments at -.
The Importance of this Case
To have a concise restatement of the principles of nuisance, arising as they do from an ever-increasing and sprawling body of case law, is always helpful. The discussion above is an effective starting point for any consideration of the principles in potential nuisance cases.
Whilst the facts of this case are somewhat exceptional, this judgment also raises a number of points that may well have wider application.
Visual Intrusion as nuisance
The finding that visual intrusion can conceptually constitute an actionable nuisance  may well prove to be one of fundamental importance. It may conceivably open up a new front of litigation exploring what this term means, and the limits of any such liability between neighbours in less exceptional circumstances.
Some limitation on this point has already been provided. The Supreme Court agreed with the Court of Appeal that a building simply overlooking neighbouring land, or occupants looking at what is happening on neighbouring land ‘in the ordinary course’, will not give rise to liability in nuisance -. Fearn is not, in Lord Leggatt’s view, a case of ‘mere overlooking’; it is the particular use by the Tate of the viewing platform, namely inviting members of the public to visit and look out in every direction, that constitutes the offensive behaviour -.
The nature of the claimants’ premises
The ‘sensitivity’ or otherwise of the claimants’ property is not a defence to liability: in other words, the fact of the Flats’ prominent location next to a major tourist site and their largely-glass design does not affect the assessment in nuisance -. The Supreme Court has left open this question in respect of ‘extreme abnormality’ of the physical attributes of the relevant property, a point which was not engaged in this case -.
There is no burden on the claimant to avoid the nuisance
Lord Leggatt re-emphasised that is no defence to say that the claimant could take reasonable steps to avoid the consequences of the nuisance, in this case by, for example, putting up curtains. It is not acceptable to place a burden on the claimant to mitigate the impact of special use of the defendant’s property -.
Invasion of the occupiers’ privacy and liability nuisance are not mutually exclusive
Lord Leggatt considers that ‘the concepts of invasion of privacy and damage to interests in property are not mutually exclusive’, and that ‘invasion of privacy’ as an umbrella term, can cover an assortment of more specific concepts and human interests . On this point, the Supreme Court disagreed with the Court of Appeal.
The relevance of public policy
The Supreme Court reiterated its own findings in Lawrence v Fen Tigers Ltd  UKSC 13, that considerations of public interest should be taken into account, not in determining liability, but in deciding whether to grant an injunction or to award damages .
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