Fearn and Others v Board of Trustees of the Tate Gallery
| Jurisdiction | England & Wales |
| Judge | Lord Leggatt,Lord Reed,Lord Lloyd-Jones,Lord Sales,Lord Kitchin |
| Judgment Date | 01 February 2023 |
| Neutral Citation | [2023] UKSC 4 |
| Court | Supreme Court |
| Year | 2023 |
[2023] UKSC 4
Lord Reed, President
Lord Lloyd-Jones
Lord Kitchin
Lord Sales
Lord Leggatt
Appellants
Tom Weekes KC
Jacob Dean
Richard Moules
(Instructed by Forsters LLP)
Respondent
Guy Fetherstonhaugh KC
Aileen McColgan KC
Elizabeth Fitzgerald
(Instructed by Herbert Smith Freehills LLP (London))
Appellants:
(1) Giles Fearn
(2) Gerald Kraftman
(3) Ian McFadyen
(4) Helen McFadyen
(5) Lindsay Urquhart
Heard on 7 and 8 December 2021
Lord Leggatt ( with whom Lord Reed and Lord Lloyd-Jones agree):
On the top floor of the Blavatnik Building, which is part of the Tate Modern art museum on Bankside in London, there is a public viewing gallery. It is a popular visitor attraction. From the viewing gallery visitors can enjoy 360-degree panoramic views of London. About 5 1/2 million people visit the Tate Modern each year and, of them, several hundred thousand (between 500,000 and 600,000 on one estimate) visit the viewing gallery, with a limit of 300 people at any one time. Entry to the museum and the viewing gallery is free but the top floor of the Blavatnik Building is also available to hire for external events. Such events are very important financially to the Tate Modern because they bring in significant income.
Unfortunately for the claimants in this case, visitors to the viewing gallery can see straight into the living areas of their flats. The flats in question are located on, respectively, the 13th, 18th, 19th and 21st floors of a block which is part of the nearby Neo Bankside residential and commercial development. The distance between the two buildings is about 34 metres and the flats on the 18th and 19th floors — which are the most affected — are at about the same height above ground level as the viewing gallery. The walls of the Neo Bankside flats are constructed mainly of glass. The trial judge found that, on the southern walkway of the viewing gallery, “[a] major part of what catches the eye is the apparently clear and uninterrupted view of how the claimants seek to conduct their lives in the flats. One can see them from practically every angle on the southern walkway”: [2019] Ch 369, para 203.
The viewing gallery opens when the museum opens at 10am every day of the week. When it first opened in 2016, the viewing gallery closed when the museum closes, at 6pm on Sunday to Thursday and at 10pm on Fridays and Saturdays. In response to complaints about the viewing gallery, the closing time on Sunday to Thursday was later moved forward slightly to 5.30pm and on Fridays and Saturdays the south and west sides of the viewing gallery were closed at 7pm, with only the north and east sides staying open until 10pm. (An exception was made for one Friday each month when the whole viewing gallery stayed open until 10pm.) These were the opening hours at the time of the trial.
In this action the claimants are seeking an injunction requiring the Board of Trustees of the Tate Gallery to prevent members of the public from viewing their flats from the relevant part of the viewing gallery walkway; or alternatively, an award of damages. Their claim is based on the common law of private nuisance.
The trial judge, Mann J, found as facts that a very significant number of visitors to the Tate's viewing gallery display an interest in the interiors of the claimants' flats. Some look, some peer, some photograph, some wave. Occasionally binoculars are used. Many photographs showing the interiors of the flats have been posted on social media. The judge found that the extent of the viewing and interest shown in the claimants' flats is a material intrusion into the privacy of their living accommodation, using the word “privacy” in its everyday sense. He held that intrusive viewing from a neighbouring property can in principle give rise to a claim for nuisance. But he nevertheless concluded that the intrusion experienced by the claimants in this case does not amount to a nuisance. The judge's reasoning, which I will examine in due course, was in essence that the Tate's use of the top floor of the Blavatnik Building as a public viewing gallery is reasonable and that the claimants are responsible for their own misfortune: first, because they have bought properties with glass walls and, second, because they could take remedial measures to protect their own privacy such as lowering their blinds during the day or installing net curtains.
On appeal, the Court of Appeal (Sir Terence Etherton MR, Lewison and Rose LJJ) found that the judge's reasoning involved material errors of law and that, if the principles of common law nuisance are correctly applied to the facts of this case, the claim should succeed. Nevertheless, they dismissed the appeal. They did so on the ground that “overlooking”, no matter how oppressive, cannot in law count as a nuisance. By way of cold comfort to the claimants, they explained that “even in modern times the law does not always provide a remedy for every annoyance to a neighbour, however considerable that annoyance may be”: [2020] Ch 621, para 79.
In my opinion, the Court of Appeal was right to hold that the judge incorrectly applied the law but wrong to decide that the law of nuisance does not cover a case of this kind. On the facts found by the judge, this is a straightforward case of nuisance. As I will explain later, I suspect that what lies behind the rejection of the claim by the courts below is 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. To the extent that this is a relevant consideration, however, its relevance is to the question of remedy and whether or not it is appropriate to prohibit the defendant's activity by granting an injunction: it cannot justify permitting the defendant to infringe the claimants' rights without compensation.
To make good these conclusions, I will begin by recalling the relevant core principles of the common law of private nuisance and showing how they apply to the facts of this case. I will then explain how, in my view, each of the courts below misapplied those principles.
In his classic article “The Boundaries of Nuisance” (1949) 65 LQR 480 Professor Francis Newark described private nuisance as a “tort to land” — by which he meant that its subject matter is wrongful interference with the claimant's enjoyment of rights over land. He declared his willingness “in the spirit of the old reformers” to nail the following thesis to the doors of the Law Courts and defend it against all comers:
“The term ‘nuisance’ is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land.”
As generally in the law of property, the legal concept of land includes here not only the earth itself but also buildings and other things which are physically attached to it and rights, for example easements, which attach in law to the land.
In Hunter v Canary Wharf Ltd [1997] AC 655 the House of Lords emphatically endorsed this thesis: see especially pp 687G–688E (Lord Goff of Chieveley), 696B (Lord Lloyd of Berwick), 702H, 707C (Lord Hoffmann) and 723D-E (Lord Hope of Craighead). By a majority of four to one (Lord Cooke of Thorndon dissenting), the House of Lords decided that, because the interest protected by the tort of private nuisance is the use and enjoyment of land, only a person with a legal interest in the land can sue. Generally, the required interest is a right to exclusive possession of the land. That requirement is satisfied by the claimants in this case who are the leasehold owners of their flats under 999-year leases.
It follows from the nature of the tort of private nuisance that the harm from which the law protects a claimant is diminution in the utility and amenity value of the claimant's land, and not personal discomfort to the persons who are occupying it: see eg Hunter [1997] AC 655, 696B-D (Lord Lloyd), 705G–707C (Lord Hoffmann), 724F–725A (Lord Hope); Williams v Network Rail Infrastructure Ltd [2019] QB 601, para 43. As Professor Newark put it in his article, at pp 488–489:
“… the interest of the plaintiff which is invaded is not the interest of bodily security but the interest of liberty to exercise rights over land in the amplest manner. A sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens.”
A second fundamental point, directly relevant in this case, is that there is no conceptual or a priori limit to what can constitute a nuisance. To adapt what Lord Macmillan said of negligence in Donoghue v Stevenson [1932] AC 562, 619, the categories of nuisance are not closed. 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.
Frequently, such interference is caused by something emanating from land occupied by or under the control of the defendant which physically invades the claimant's land. This may be something tangible, as where — to take a recent example — an incursion of Japanese knotweed from neighbouring land gave rise to a claim: see Williams v Network Rail [2019] QB 601. Or it may be something intangible, such as fumes, noise, vibration or an unpleasant smell. In all such cases, however, the basis of the claim is not the physical invasion itself but the resulting interference with the utility or...
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