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Law of nuisance refresher

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Imagine this…..every year 500,000 people peer at you through your window. Some of them actually taking photos of your home and invading your privacy. What would you do? Could the law help you?

That’s exactly what happened in the case of Fearn & Others v Tate Gallery [Feb 2023].

We have all heard of the Tate Modern art museum. Well that has a public viewing gallery as one of its attractions, with the gallery giving visitors a 360 degree view of London. Each year between 500,000 and 600,000 visit the viewing platform to enjoy the view. This is also an attraction in itself and is available for private hire for entertainment functions. Due to popularity its opening hours have been extended, with visitors being able to visit between 10am and 10pm on certain days.

However, the viewing platform is not loved by everyone, namely the Claimants in this case. The Claimants are residents of apartments across from the Tate Gallery, living on the 13th, 18th, 19th and 21st floor. These apartments have floor to ceiling windows and face the viewing platform. This led to the Claimants feeling that their privacy was being interrupted given the number of people visiting the viewing platform and looking into their windows each day.

As such, the Claimants started a legal action for an injunction to stop the intrusion of their privacy from the museum visitors using the viewing platform. In the alternative they sought money damages by way of compensation. This was a claim brought in legal nuisance.

When the claim went to trial the Judge found in favour of the Tate gallery, saying that, whilst the Claimants were suffering an intrusion of their privacy, that did not amount to a nuisance.

The Claimants appealed to the Court of Appeal who said that if the principles of common law nuisance were correctly applied then the case should have succeeded, however they were of the opinion that ‘overlooking no matter how oppressive’ could not count as a nuisance.

The Claimants appealed to the Supreme Court where their appeal succeeded. It was found that the ‘overlooking’ was a common law nuisance and that the Claimants were entitled to a remedy to that. The Court didn’t make the decision about whether an injunction or money damages were the correct remedy and referred it back to the lower Court to decide on the remedy. The outcome of that is awaited. Will they get money or will the viewing platform be closed down or restricted?

In a world where the population is increasing and the percentage of people living in urban areas is set to rise over the next few decades, this decision related to living in close proximity is an interesting one.

As well as finding in favour of the Claimants, the Court gave a refresher on the 8 core principles of private nuisance. Below quotes some phrases from the Judgment of Lord Leggatt for the sake of accuracy;
  1. Scope – the scope is the wrongful interference with enjoyment of rights over land. Land is the earth itself, things attached to the earth (e.g., buildings) and rights relating to the land (e.g., rights of way and easements)

  2. Nuisance can be caused any any means – Nuisance doesn’t require a physical invasion onto the Claimant’s land. The categories of nuisance are not ‘closed’. The Supreme Court said that anything short of direct trespass on the Claimant’s land, materially interfering with the Claimant’s enjoyment of rights in their land, is capable of being a nuisance. This can be something tangible such as tree roots or something intangible such as noise or smell.

  3. Unreasonable interference – A key principle is that the interference must be unreasonable or unduly interfere with a person’s use or enjoyment of land

  4. Substantial interference – The Court must apply an objective test to consider whether the Defendant’s use of land has caused a substantial interference with the ordinary use of the Claimant’s land.

  5. Ordinary use of land – Even where the Defendant’s activity interferes with the use and enjoyment of the Claimant’s land, it will not cause a liability if the activity itself is the ordinary use of the Defendant’s land. As part of this, the right to build and demolish structures is said to be fundamental to the common and ordinary use of land as it involves the basic freedom to decide whether and how to occupy the space which comprises the property.

  6. The locality principle – the common and ordinary use of land is to be judged by the character of the area.

  7. Coming to a nuisance is no defence – it is not a defence to claim that the defendant was already using their land in the way now subject of the complaint, before the Claimant began to occupy the neighbouring land and it is not a defence to say that the Defendant’s activity did not amount to a nuisance until the Claimant’s land was built on or its use was changed.

  8. Public interest is no defence – it’s no defence to claim that the activity was being carried out in the public benefit.

Going back to the Tate case, what did the Court say about the Claimants’ properties and their characteristic floor to ceiling windows which made them prone to interference?

The Court talked about the sensitivity of design and construction. Whilst this makes neighbours more vulnerable to each other’s activities, it does not change the legal principles by which their rights and obligations are determined, i.e., the 8 factors above. So the design of a building might mean that the occupier of that has to put up with a greater interference with the ordinary use and enjoyment of the property where that enables the neighbour to use their property for its ordinary purposes.

However, in this claim the Court found things to be different. This is because the the viewing of the Claimants’ properties by 500,000-600,000 per year goes way beyond what could be considered to be the natural consequence of the common and ordinary use of, and occupation of, the Tate Gallery’s land. Therefore even in an area of London used for cultural purposes attracting tourists, making a viewing gallery such as this one was not found to be a common or ordinary use of land.

The Claimants’ appeal to the Supreme Court succeeded and civil litigators dealing with all aspects of common nuisance benefitted from a refresher of the principles of nuisance from the highest Court in our land.

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