Nuisance The Supreme Court has its say

Key Points

• Visual intrusion can be an actionable nuisance
• This judgment will be relevant for developments with high-level open spaces
• Amenity nuisance is judged by what is common and ordinary
• Planning permission cannot authorise a nuisance
• Public benefit will be relevant when deciding the appropriate remedy
• Reciprocity between neighbours is still an important factor

The claim

In 2016, Tate Modern completed the Blavatnik Building extension. It is ten storeys high with a viewing platform on the top floor, which offers panoramic views of London.  However visitors to the south side of the viewing platform can see directly into the apartments in the nearby NEO Bankside complex, because of its unusual glass wall design.

The viewing platform is visited by an estimated 5-600,000 people each year who can stare into the neighbouring apartments. At first instance, the trial judge found that: "Some look, some peer, some photograph, some wave. Occasionally binoculars are used. Many photographs have been posted online".

In  Fearn and others -v- The Board of Trustees of the Tate Gallery [2023], the claimants sought an injunction requiring Tate Modern to stop its visitors from looking into their apartments from the viewing platform, or, alternatively, damages based on a claim in nuisance.

This type of nuisance requires substantial interference with the ordinary use and enjoyment of the claimant's neighbouring land. However, a defendant will not be liable if it is doing no more than making a common and ordinary use of its own land, provided such use is carried out reasonably.

The outcome

The claim was dismissed by the High Court and, for different reasons, by the Court of Appeal. 

The Supreme Court (by a majority of 3 to 2) allowed the appeal in favour of the NEO Bankside residents.  Lord Leggatt, in his leading judgment, held that visual intrusion could amount to an actionable nuisance.  However, there was a strong dissenting judgment by Lord Sales.

The Supreme Court agreed that the claimants' flats were under near constant observation by visitors to the viewing platform.  The majority in the Supreme Court concluded that, by any objective standard, the use of the platform by Tate Modern was not a common and ordinary use of its land, despite the fact that this was a popular tourist attraction located in the urban metropolis of London.  

The majority in the Supreme Court held that the judge at first instance had applied the wrong test.  It was not about whether Tate Modern was making an "unreasonable" use of the viewing platform but rather whether the platform was being used for a "common and ordinary" purpose.

As the intrusion continued without interruption for most of the day, every day of the week,   the Supreme Court concluded that there is no reason why constant visual intrusion of this kind cannot give rise to liability for nuisance.

The majority judgment considered that it was no defence to say that the claimants must have expected visual intrusion by choosing to live in apartments with glass walls. It is no defence to allege that the claimant "came to the nuisance".  

Neither did the majority think that it was reasonable to expect the claimants to mitigate the intrusion by taking some fairly commonly accepted steps, such as putting up blinds.  However, as the claimants' use of their apartments as dwellings was a "common and ordinary" use, then it followed that it was not the claimants' responsibility to take any steps to mitigate the consequences of the defendant's abnormal use of its land.

In the dissenting minority's view, the approach to nuisance required a balancing of the interests of claimant and defendant. If you take into account the character of the locality, it would not be unreasonable to expect the apartment owners to put in place normal screening measures to limit the effect of any visual intrusion. 

What next?

The question of which remedy the court should award was referred back to the High Court for further argument.  So, it remains to be seen  whether the remedy is to be an injunction (and, if so, on what terms,) or damages.

It will no doubt be argued on behalf of the apartment owners that an injunction should be ordered requiring Tate Modern to take steps to prevent the public being able to view the apartments. Against that is the argument that the apartment owners could and should take reasonable measures to reduce the visual intrusion and therefore damages is an appropriate remedy.

It will also be interesting to see how much weight is given to any public benefit argument given that planning permission was granted for the viewing gallery.  Previously, Lord Sumption suggested in Coventry -v- Lawrence [2014]  that, "as a matter of principle, an injunction should not be granted in a case where a use of land to which objection is taken requires and has received planning permission".  He was also of the opinion that Shelfer -v-City of London Electric Lighting Co. [1859], which defines the test for whether an injunction should be awarded, was out of date and was not flexible enough for dealing with modern day circumstances where we have a comprehensive system of statutory development control.

Comment

It is important to be clear that this decision does not suggest that it is now open season for nuisance claims based on visual intrusion.  

While this case is useful in relation to nuisance claims in the vicinity of residential areas, it is still important to appreciate that the particular facts and judicial discretion remain critical to the outcome of any claim.  In principle, overlooking can be a nuisance, but in this case the actions that were complained about were extreme.  The test is whether the interference is such that it cannot be said to be a common and ordinary use of the defendant's land.

This judgment will be relevant for developments with high-level public open spaces.  Is the public open space an "abnormal and unexpected" use of the land?  Might there be a risk that the Supreme Court's decision will change the face of planning and development  in high-density residential areas where any public open space would allow members of the public to look into private residential dwellings? 

The Supreme Court majority judgment focused on whether the defendant's use of its land is common and ordinary, instead of applying the objective reasonableness test as set out in previous cases. 

However, even the majority judgment accepted that where a use is "common and ordinary" it has to be carried out reasonably.  For example, noisy building work may be a common and ordinary activity, but not necessarily if that work is done in the middle of the night.

In his dissenting judgment, Lord Sales also pointed out that it is not only "common and ordinary" uses that can satisfy this test. An activity can be novel and unusual, yet one which it is objectively reasonable to accept.

Going forward – at least according to the majority judgment - "reciprocity", or give and take between neighbours, does not prevent nuisance arising.  Instead, this may be relevant to the extent of any injunction awarded, or whether damages might be an appropriate alternative.

As for the role of planning permission in nuisance, we can safely say that nothing in this case changes the judicial authority that planning permission cannot authorise a nuisance.  Planning permission does not override the exercise of private law rights.  It is still the courts' remit to decide issues of common law nuisance, not the planning authority's.

Of course, whether an activity amounts to nuisance cannot be decided in the abstract; it must be considered by reference to the circumstances of the locality. So, as often quoted: "What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey".  

This means that as the character of a locality changes, so do the standards against which any activity is judged.  However, the implementation of a planning permission will change the character of the locality only in so far as the change does not amount to a nuisance.  The law is clear that planning permission cannot authorise an activity that would amount to a nuisance. 

It is evident though that the terms of the planning permission can be used by the courts to determine whether the defendant's use of the land is reasonable.  So, complying with planning conditions can be proof that the defendant's use of its land falls within that which is common and ordinary.

It remains likely that planning permission and public benefit arguments will continue to influence the courts, even if indirectly.

Certainly Lord Carnwath noted in Coventry -v- Lawrence [2014] that modern planning and environmental controls generally represent society's view of the appropriate balance of uses in a particular area, taking account of both the social needs of the area and the maintenance of an acceptable environment for its occupants. His view was that: "The common law of nuisance is there to provide a residual control to ensure that new or intensified activities do not need to lead to conditions which, within that pattern, go beyond what a normal person should be expected to put up with". 

Despite his Lordship's comments, the dispute between Tate Modern and the neighbouring flat owners demonstrates that private rights cannot be ignored.  However, the outcome of amenity nuisance claims will continue to be difficult to predict, particularly in mixed-use urban areas.