Gordon Wignall explores a nuisance case in the Supreme Court about the Tate Modern and Richard Roger’s glass dwellers’ lack of privacy
The case of Fearn concerns liability in nuisance law in respect of two extraordinary buildings forming part of the contemporary landscape of a 21st century metropolis, London. It concerns the invasion of privacy by visual intrusion.
The particular type of nuisance is that which is classified as ‘sensible personal discomfort,’ usually applied in the context of neighbouring parcels of land and is the source of emissions of noise, dust, odours, or such-like. The principles have been largely unchanged since about the mid-19th century.
The final result of Fearn v. Board of Trustees of the Tate Gallery  EWHC 246 (Ch) is a judgment from the Supreme Court which will be difficult for trial judges to use in daily conventional settings (to the particular detriment of defendants) and one which is likely to have ‘chilling’ effect on contemporary design and development.
The case will be instantly recognisable from recent media reports. The defendant property was the 360° viewing platform at the top of the Blavatnik Building, an extension of Tate Modern. The claimants occupied four flats in a high-rise development, each designed with a triangular end-piece conceived as ‘indoor balconies.’ The closest balcony was about 34m from the viewing gallery. The owners had decided to convert their balconies into part of their living accommodation, both the balconies and the living quarters consisting of wall-to-ceiling glass. Viewers to the platform took photos and videos to post on social media.
The claimants failed before the trial judge and the Court of Appeal, for different reasons. There are two judgments from the Supreme Court, the minority judgment saying, of the successful argument, that it “does not affirm established principles but instead would constitute a major change in the law” (para.245).
The proceedings first arrived in front of Mann J in the form of a claim under (i) the Human Rights Act and (ii) nuisance, the claim in nuisance being heavily reliant on article 8 of the Convention. As to the nuisance claim, the judge decided that the claimants occupied an unusually sensitive property and made themselves even more vulnerable by converting their balconies into living areas. Moreover, there were small things which the occupants could do to mitigate the consequences (for instance using blinds). On an overall assessment, given the vibrant location of this part of London, both parties had a right to build interesting new properties and had made a reasonable use of their own.
The defendant itself did not appeal the decision of Mann J. that the tort of nuisance was capable of protecting domestic privacy rights. The Court of Appeal called for submissions on the point and decided that “overlooking” could not constitute a nuisance, and further that there were policy reasons for not allowing a privacy claim to be actionable under the guise of nuisance.
The two justices in the Supreme Court who wrote judgments were agreed that in the 21st century, an invasion of privacy by viewing could be considered a nuisance at common law, the Human Rights Act having nothing to contribute.
After setting out core principles, the two judgments diverge. The judgment of Sales JSC (in the minority), is fluent and easy to read. The Judgment of Leggatt JSC is complex and difficult.
Sales JSC argued that: “the unifying principle underlying the tort is reasonableness between neighbours,” taking as his starting-point a passage from Tony Weir’s An Introduction to the Tort Law, which has found favour with judges in two highly influential cases, Barr v. Biffa Waste Services Ltd  QB 455 and Lawrence v. Fen Tigers Ltd  AC 822.
Sales JSC deferred to the trial judge, recognising that an appellate court “should be slow to intervene in cases involving, like this one, questions of fact and degree in the application of an established and open-textured legal principle.” He would have dismissed the claim.
Leggatt JSC introduced his judgment by stating: “On the facts found by the judge, this is a straightforward case of nuisance. …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 public from enjoying an unrestricted view of London and a major national museum from providing public access to such a view.”
Divergence between the judges
The remarkable fact is that the outcome centred on one short extract of a judgment given in 1862, the meaning of which has haunted the highest courts since Hunter v. Canary Wharf Ltd  AC 655.
Bamford v. Turnley 122 ER 27 (12 July 1862), is one of a series of cases about smoke from brick clamps, used to manufacture bricks when the estates on the outskirts of London were being turned into housing. If it was ‘convenient’ to make bricks in the place where the bricks were to be used and if the manufacturing was done ‘reasonably,’ then was this a bar to an action in nuisance, since private convenience must yield to the public necessity in the building of houses?
Four judges combined to write a judgment dismissing any such blanket defence: taking the fitness of the locality into consideration along with all the other circumstances, if the annoyance is sufficiently great, then an action for nuisance is not barred. They might have said, today, that if the interference is disproportionate to the defendant’s lawful use of its land, then there is a nuisance, but otherwise the claim should fail. Every owner has a right to use land as he or she wishes, subject to this qualification.
Bramwell B was primarily concerned to dispense with the suggestion that in an action for private nuisance, the public interest should play a part. On the issue which was material to the Supreme Court in Fearn, he said much the same thing as the other judges, but added the gloss that the defence of proportionality (or, strictly speaking, the claim to reciprocity, being a principle of “give and take; live and let live”) should not avail a defendant who was “not using the land in a common and ordinary way.”
This gloss has not previously attracted significant attention, but it was taken up by the judgment of Leggatt JSC in such a way as to justify the complaint by Sales JSC that the effect is wrongly to elevate this specific consideration to “unjustified prominence.”
The immediate consequences of the focus on whether or not the defendant’s land is used other than in a ‘common or ordinary’ way are clear. If the use is an ‘extraordinary’ use of land, then it is doubly difficult to succeed in showing either that claimants have brought matters on themselves by their use of their premises, or that there are modest measures which they could have taken themselves to mitigate the effects.
Indeed, Leggatt JSC had no hesitation in rejecting both these factors, which the trial judge had thought significant enough to lead to the dismissal of the claim. There is the much wider effect that there is now a ‘chilling effect’ on new and unusual developments of land, since in any contest about the impact on amenity value in the area, a defendant will be wrong-footed by a central claim that the use of the defendant’s land is nether ‘common or ordinary.’
Sales JSC’s preference was to apply ‘an objective test of reasonableness informed by the standards of the locale,’ which he powerfully argued is an approach which the courts have traditionally applied. The question now, is whether judges can restore the balance, or whether this is a branch of the law of nuisance which has gone down the wrong road with no possibility of return.
Not only did the courts respond erratically, if not inadequately, to these novel contemporary circumstances, but the unintended consequence of Leggatt JSC’s search for an answer has been an up-ending of that delicate “constellation of themes” (as Laws J. put it in Arscott v. The Coal Authority  Env. L.R. 6) used on an almost daily basis to determine much more mundane circumstances which arise between true neighbouring premises.
Gordon Wignall is a barrister at Six Pump Court