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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Fearn & Ors v Board of Trustees of the Tate Gallery [2023] UKSC 4 (01 February 2023) URL: https://www.bailii.org/uk/cases/UKSC/2023/4.html Cite as: [2024] AC 1, [2023] HLR 11, [2023] 2 WLR 339, [2023] WLR(D) 53, [2023] EMLR 11, [2023] UKSC 4, [2023] 2 All ER 1 |
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[2023] UKSC 4
On appeal from: [2020] EWCA Civ 104
JUDGMENT
Fearn
and others (Appellants)
Board of Trustees of the
Tate
Gallery (Respondent)
before
Lord Reed, President
Lord Lloyd-Jones
Lord Kitchin
Lord Sales
Lord Leggatt
JUDGMENT GIVEN ON
1 February 2023
Heard on 7 and 8 December 2021
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
LORD LEggatt (with whom Lord Reed and Lord Lloyd-Jones agree):
A. Introduction
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 5½ 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.
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.
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.
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.
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.
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.
view,
each of the courts below misapplied those principles.
B. Core principles of private nuisance
(1) The scope of private nuisance
“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.
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.
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.”
(2) Nuisance can be caused by any means
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.
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 amenity
value
of the claimant’s land. Moreover, there is no requirement that the interference must be caused by a physical invasion and, as commentators have pointed out, there are many cases which do not fit this model: see C Essert, “Nuisance and the Normative Boundaries of Ownership” (2016) 52 Tulsa L Rev 85, 96-98; D Nolan, “The Essence of Private Nuisance” in Ben McFarlane and Sinéad Agnew (eds), Modern Studies in Property Law,
vol
10 (2019) 71, 81-83. So, for example, a nuisance may be caused by obstructing access to land (eg Guppys (Bridport) Ltd
v
Brookling (1983) 14 HLR 1); by a withdrawal of support for the claimant’s land (eg Holbeck Hall Hotel Ltd
v
Scarborough Borough Council [2000] QB 836); by obstruction of an acquired right to light (eg Jolly
v
Kine [1907] AC 1) or to a flow of air (eg Bass
v
Gregory (1890) 25 QBD 481) through a defined aperture; or by preventing connection to a public sewer (Barratt Homes Ltd
v
Dŵr Cymru Cyfyngedig (No 2) [2013] 1 WLR 3486).
v
Greenwood [1984] 1 NZLR 525, the interference consisted in a dazzling glare caused by the deflection of the sun’s rays off the glass roof of the defendant’s building. Similarly, in one American case a large neon advertising sign on a building directly opposite bedrooms of the plaintiff’s hotel was held to cause a nuisance when illuminated at night: Shelburne Inc
v
Crossan Corp, 95 NJ Eq 188; 122 A 749 (NJ Ch 1923). In the Bank of New Zealand case, at p 530, Hardie Boys J rightly saw a “dearth” of similar cases as presenting “no great obstacle” to the claim, since “nuisance is one of those areas of the law where the courts have long been engaged in the application of certain basic legal concepts to a never-ending
variety
of circumstances …”
v
Costaki [1956] 1 WLR 335 the Court of Appeal upheld the grant of an interim injunction to restrain the use of the house next door to the claimant’s house as a brothel. The court rejected a submission that the sight of prostitutes and their clients coming and going from the defendant’s premises was not capable of constituting a nuisance as a matter of law, holding that whether a nuisance was established would depend on the facts found at the trial. See also Laws
v
Florinplace Ltd [1981] 1 All ER 659 (sex shop on a residential street). American case law provides further examples of interference with the enjoyment of land caused by offensive sights, such as Foley
v
Harris, 286 SE 2d 186 (
Va
1982) where the keeping of numerous junked, abandoned and disabled
vehicles
on the defendant’s land was held to be a nuisance.
visual
intrusion an intolerable interference with their freedom to use and enjoy their property. A colourful illustration is provided by a mediaeval case heard at the London Assize of Nuisance in 1341: see Misc Roll DD: 5 Nov 1339 - 15 Dec 1346, number 365. According to the case record:
“The [plaintiff] complains that John le Leche, fishmonger, has a leaden watch-tower (garritam) upon the wall of his tenement adjoining hers in the same par[ish] upon which he and his household (familiares) stand daily, watching the private affairs of the pl[aintiff] and her servants. The def[endant], present upon the land before the mayor and aldermen, admits the nuisance, and freely undertakes to remove it within 40 days subject to the customary penalty.”
viewing
tower whose only purpose is to enable
views
into the gardens and houses of other neighbours, and who then charges an entry fee to allow members of the public to come in and do just that”: [2019] Ch 369, para 169. It is obvious that, as a matter of fact, such an activity could substantially interfere with the ordinary use and enjoyment of the neighbours’ land. There is in these circumstances no legal reason why it would not be actionable as a private nuisance.
(3) “Unreasonable” interference
v
O’Callaghan [1940] AC 880, 903 (Lord Wright). It is evident that, if such a balance is to be maintained, not every interference with a person’s use and enjoyment of their land can be actionable as a nuisance. It is sometimes said, as if it were a governing principle, that to give rise to liability the interference must be “unreasonable”. However, the term “unreasonable” in this statement has no explanatory power: see in particular Allan Beever, The Law of Private Nuisance (2013), p 10 (“It is presented as an explanation of the operation of the law, but it does not, cannot, explain anything”). The requirement that the interference must be “unreasonable” is just another way of saying that - as it is also put - the interference must be “unlawful” (see eg Winfield and Jolowicz on Tort, 20th ed (2020), para 15-010, and the cases there cited); or that to give rise to liability an activity must “unduly” interfere with a person’s use or enjoyment of land (see eg Clerk & Lindsell on Torts, 23rd ed (2020), para 19-01; Lawrence
v
Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822, para 3, per Lord Neuberger of Abbotsbury).
values
of reciprocity and equal justice.
(4) The interference must be substantial
varying
phraseology to express the point that the interference with the use of the claimant’s land must exceed a minimum level of seriousness to justify the law’s intervention. The terms “real”, “substantial”, “material” and “significant” have all been used. Put the other way round, the courts will not entertain claims for minor annoyances. As Lord Wensleydale said in St Helen’s Smelting Co
v
Tipping (1865) 11 HL Cas 642, 653-654:
“the law does not regard trifling and small inconveniences, but only regards sensible inconveniences, injuries which sensibly diminish the comfort, enjoyment or
value
of the property which is affected.”
V-C
in Walter
v
Selfe (1851) 4 De G & Sm 315, 322, the question is whether the interference ought to be considered a material inconvenience “not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people”; see also Barr
v
Biffa Waste Services Ltd [2013] QB 455, para 36(ii). The objective nature of the test reflects the fact that the interest protected by the law of private nuisance is the utility of land, and not the bodily security or comfort of the particular individuals occupying it: see para 11 above.
(5) The ordinary use of land
v
Hislop (1886) 11 App Cas 686, 691, the Earl of Selborne L-C encapsulated this well when he defined a nuisance as “what causes material discomfort and annoyance for the ordinary purposes of life to a man's house or to his property” (emphasis added). In the earlier case of Ball
v
Ray (1873) LR 8 Ch App 467, 470, the same judge, when Lord Chancellor, had expressed the converse proposition that:
“if either party turns his house, or any portion of it, to unusual purposes in such a manner as to produce a substantial injury to his neighbour, it appears to me that that is not according to principle or authority a reasonable use of his own property; and his neighbour, shewing substantial injury, is entitled to protection.” (emphasis added)
The “unusual purpose” for which the defendant in Ball
v
Ray was using his house (in a residential street) was as a stable for keeping horses. Mellish LJ (at p 471) agreed with the Lord Chancellor that:
“when in a street like Green Street the ground floor of a neighbouring house is turned into a stable, we are not to consider the noise of horses from that stable like the noise of a pianoforte from a neighbour’s house, or the noise of a neighbour’s children in their nursery, which are noises we must reasonably expect, and must to a considerable extent put up with.”
See also Broder
v
Saillard (1876) 2 Ch D 692, another case concerning a stable in a residential street, where this passage was quoted with approval and the principle applied.
v
Kilvert (1889) 41 Ch D 88 the claimant rented a warehouse in which he stored a particularly delicate and sensitive type of paper. Heat rising from the defendant’s cellar underneath the warehouse floor damaged the paper although it would not have affected ordinary paper and was not sufficient to interfere with “the ordinary use of property for the purposes of residence or business” (p 94). The Court of Appeal held that the defendant was not liable in nuisance. Cotton LJ, at p 94, rejected the notion that something can be a nuisance “because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life.” As Lord Robertson said, giving the judgment of the Privy Council in Eastern and South African Telegraph Co
v
Cape Town Tramways Co Ltd [1902] AC 381 at 393:
“A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure.”
view
quite right to recognise the continuing
validity
of this principle and to reject contrary dicta of Buxton LJ in Network Rail Infrastructure Ltd (formerly Railtrack plc)
v
Morris (trading as Soundstar Studio) [2004] Env LR 41, paras 32 and 35-36, suggesting that it is no longer apt.
v
Turnley (1862) 3 B & S 66 at 83, Bramwell B formulated a test which has since been regularly cited, approved and applied, including at the highest level. He gave what were then contemporary examples of acts such as “burning weeds, emptying cess-pools” and “making noises during repairs” which (unless done maliciously and without cause) would not be treated as nuisances, even when they caused material inconvenience or discomfort to neighbouring owners. He then said at pp83-84:
“There must be, then, some principle on which such cases must be excepted. It seems to me that that principle may be deduced from the character of these cases, and is this,
viz,
that those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action.” (emphasis added)
Bramwell B justified this principle in the following way:
“There is an obvious necessity for such a principle as I have mentioned. It is as much for the advantage of one owner as of another; for the
very
nuisance the one complains of, as the result of the ordinary use of his neighbour’s land, he himself will create in the ordinary use of his own, and the reciprocal nuisances are of a comparatively trifling character. The convenience of such a rule may be indicated by calling it a rule of give and take, live and let live.”
v
Tanner [2001] 1 AC 1 adjoining flats had been built without sound insulation, with the result that, as described by Lord Hoffmann at p 7:
“The tenants can hear not only the neighbours’ televisions and their babies crying but their coming and going, their cooking and cleaning, their quarrels and their love-making. The lack of privacy causes tension and distress.”
The noise from the neighbours’ activities thus caused a substantial interference with the ordinary use and enjoyment of the claimants’ flats. But the House of Lords held that this interference was not an actionable nuisance because the neighbours were doing no more than making normal use of their own flats. The two conditions of Bramwell B’s test were satisfied, as the acts complained of were (i) necessary for the common and ordinary use and occupation of land, and (ii) “conveniently done” - that is to say, done with proper consideration for the interests of neighbouring occupiers: see pp 16C-D (Lord Hoffmann) and 21A-B (Lord Millett). Lord Hoffmann stated, at p 15F-G:
“… I do not think that the normal use of a residential flat can possibly be a nuisance to the neighbours. If it were, we would have the absurd position that each, behaving normally and reasonably, was a nuisance to the other.”
“Reasonable user”
v
Eastern Counties Leather plc [1994] 2 AC 264, 299, Lord Goff said that:
“although liability for nuisance has generally been regarded as strict, … [it] has been kept under control by the principle of reasonable user - the principle of give and take as between neighbouring occupiers of land, under which ‘those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action:’ see Bamford
v
Turnley (1862) 3 B & S 62, 83, per Bramwell B. The effect is that, if the user is reasonable, the defendant will not be liable for consequent harm to his neighbour’s enjoyment of his land; but if the user is not reasonable, the defendant will be liable, even though he may have exercised reasonable care and skill to avoid it.”
It can be seen that in this passage Lord Goff was expressly endorsing the principle formulated by Bramwell B in Bamford
v
Turnley and was using the phrase “reasonable user” as a shorthand for this principle, under which “those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action.” Unfortunately, this point has sometimes been overlooked and these remarks treated as if Lord Goff had been suggesting that the applicable test is one of the “reasonableness” of the defendant’s use of land in a general, undefined sense. The misunderstanding is ironic, as the
very
issue decided in Bamford
v
Turnley was that it is not a defence to liability that the defendant’s use of his land is reasonable.
v
Turnley was that “the brick-kilns of the defendant, by immitting corrupted air upon the plaintiff’s house, had rendered it unfit for healthy or comfortable occupation”: see (1862) 3 B & S 66, 74. The jury returned a
verdict
for the defendant, after being directed that they must do so if they were of the opinion that making bricks, notwithstanding the interference caused to the plaintiff, “was, under the circumstances, a reasonable use by the defendant of his own land.” The question on appeal was whether the judge’s direction to the jury was correct in law. The Court of Exchequer Chamber (by a majority of five to one, with Pollock CB dissenting) held that the direction was not correct and substituted a
verdict
for the plaintiff. Although the main judgment was given by Williams J, it is the concurring judgment of Bramwell B which has been repeatedly cited and regarded as a classic statement of the relevant legal principles. Bramwell B explained (at p 83) why it did not assist the defendant that his use of his land to manufacture bricks was found by the jury to be reasonable. The reason was that “what has been done was not the using of land in a common and ordinary way, but in an exceptional manner - not unnatural nor unusual, but not the common and ordinary use of land.”
v
Saillard (1876) 2 Ch D 692, 701; Reinhardt
v
Mentasti (1889) 42 Ch D 685, 690; Attorney General
v
Cole & Son [1901] 1 Ch D 205; Southwark London Borough Council
v
Tanner [2001] 1 AC 1, 20; Barr
v
Biffa Waste Services Ltd [2013] QB 455, paras 60-72; and see also Allan Beever, The Law of Private Nuisance (2013) pp 9-13. In Southwark Lord Millett (with whom Lords Slynn, Steyn and Clyde agreed) addressed directly Lord Goff’s description in Cambridge Water of Bramwell B’s principle as “the principle of reasonable user”, saying, at p 20:
“The use of the word ‘reasonable’ in this context is apt to be misunderstood. It is no answer to an action for nuisance to say that the defendant is only making reasonable use of his land.”
Lord Millett went on to reiterate that the principle which limits the liability of a landowner who causes a sensible interference with his neighbour’s enjoyment of his property is that stated by Bramwell B in Bamford
v
Turnley, and that where the two conditions of that test are satisfied, no action will lie against the landowner “for that substantial interference with the use and enjoyment of his neighbour’s land that would otherwise have been an actionable nuisance” (p 21).
v
Biffa Waste Services Ltd the residents of a housing estate complained of unpleasant smells emanating from a landfill site used as a waste tip by the defendant. The trial judge dismissed the claims in nuisance of all but two of the claimants. In reaching this decision, the judge applied a test (for which he relied principally on the passage quoted above from Lord Goff’s speech in Cambridge Water) of “whether or not the use of the land in question can be described as reasonable in all the circumstances”: [2011] EWHC 1003 (TCC); [2011] 4 All ER 1065, para 205. The judge also said, at para 256(c):
“Reasonable user has been equated to the principle of ‘give and take’ … Although that principle was originally said not to arise in cases where the use was ‘not unnatural nor unusual but not the common and ordinary use of land’ (Bamford
v
Turnley (1862) 3 B & S 62), the modern law of nuisance focuses on whether, in all the circumstances, the user is reasonable, and ‘give and take’ will usually be an element of that assessment, regardless of whether the use of the land could be said to be common or not …”
view
of the law, describing it as “unsupported by authority, and misconceived”: see [2013] QB 455, paras 60-72. Carnwath LJ (with whom the other members of the court agreed) discussed the concept of “reasonable user” at some length, observing (at para 46) that the phrase “reasonable user” is “at most a different way of describing old principles, not an excuse for re-inventing them”. He pointed out that in Cambridge Water Lord Goff was not seeking to redefine the ordinary law of nuisance but rather was citing the well established principles formulated by Bramwell B in Bamford
v
Turnley (para 65) and was using the phrase “reasonable user” “as no more than a shorthand for the traditional common law tests” (para 71). He referred to Lord Millett’s comments in Southwark on Lord Goff’s use of the expression and noted that Lord Millett’s own summary of Bramwell B’s principles did not use a test of reasonableness. Carnwath LJ reiterated that “reasonable user” “should be judged by the well settled tests” formulated by Bramwell B (para 72). That is an important reminder, which I would endorse.
Reciprocity
“The governing principle is good neighbourliness, and this involves reciprocity. A landowner must show the same consideration for his neighbour as he would expect his neighbour to show for him.”
This explanation gets to the nub of the rule of “give and take, live and let live” stated by Bramwell B in Bamford
v
Turnley. It is a principle of equal justice, a form of the golden rule that you should “do as you would be done by”. Put negatively, people cannot fairly demand of others behaviour which they would not at the same time allow others to demand of them. See further Ernest J Weinrib, The Idea of Private Law (2012) pp 190-194; C Essert, “Nuisance and the Normative Boundaries of Ownership” (2016) 52 Tulsa L Rev 85, 103-106.
The freedom to build
v
Canary Wharf Ltd the House of Lords confirmed that only a person with an interest in the affected land may sue for nuisance. A second issue raised on that appeal was whether interference with television reception is capable of giving rise to a claim for nuisance. The House of Lords did not give an absolute answer to that question. The law lords did not exclude the possibility that the ability to watch television might be regarded as so important a part of the ordinary enjoyment of property that interference with it could amount to an actionable nuisance. That might have been so where the interference was caused by a special or particular use of the defendant’s land, as was claimed in Bridlington Relay Ltd
v
Yorkshire Electricity Board [1965] Ch 436 (where the point was left open as the claim failed on the facts). In Hunter, however, the cause of the interference with television reception was the size and design (with metal cladding) of a building erected on the defendant’s land. The House of Lords reaffirmed the general rule at common law that anyone may build whatever they like on their land, unless this
violates
an agreement not to do so or an acquired right to light or to a flow of air through a defined aperture: see pp 685D-F (Lord Goff), 699C-H (Lord Lloyd), 709A-H (Lord Hoffmann) and 726B-H (Lord Hope). It followed that interference with the use of the claimants’ land caused by the mere presence of a building on the defendant’s land could not give rise to a claim for private nuisance. The same principle explains why no claim lies for interference with a
view
or prospect.
v
Selfridge & Co Ltd [1938] Ch 1.
(6) The locality principle
v
Bridgman (1879) 11 Ch D 852, 865, Thesiger LJ giving the judgment of the Court of Appeal expressed this in a famous statement that “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. In saying this, he was not, as is sometimes mistakenly supposed, suggesting that inhabitants of an upmarket neighbourhood are entitled to greater legal protection than those of a poorer neighbourhood - an approach which would be entirely contrary to equal justice. The facts were that Dr Sturges, a physician living in Wimpole Street in London, built a consulting room at the end of his back garden. On the other side of the party wall from the new consulting room was the kitchen of the defendant, Mr Bridgman, who carried on business as a confectioner. Mr Bridgman had in his kitchen two large mortars set in brickwork built up against the party wall and worked by two large pestles held upright by horizontal bearers attached to the wall. Dr Sturges complained that, when the pestles and mortars were used, noise and
vibrations
caused serious disturbance.
“where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, Judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private or actionable wrong.”
v
Bridgman succeeded reflects the fact that in 1873, when Dr Sturges built his consulting room, it could not be said that the locality was one devoted to manufacture, as Wimpole Street was primarily residential, with professionals, including many members of the medical profession like Dr Sturges, conducting business from their homes: see AWB Simpson, “The Story of Sturges
v
Bridgman: The Resolution of Land Use Disputes between Neighbors” in G Korngold and A Morriss (eds), Property Stories (2004), p 9.
(7) Coming to a nuisance is no defence
v
Bridgman, is that “coming to a nuisance” is not a defence. In other words, it is not in itself a defence to a claim for nuisance that the defendant was already using his land in the way now complained of before the claimant acquired or began to occupy the neighbouring land. Nor is it a defence that the defendant’s activity did not amount to a nuisance until the claimant’s land was built on or its use was changed. This may initially seem counterintuitive. Mr Bridgman and his father before him had been using one of the pestles and mortars in their kitchen in the same place and to the same extent for some 60 years and the other for well over 20 years before Dr Sturges built his consulting room. It may at first sight appear unjust that Mr Bridgman was required to stop an activity which had been carried on for such a long time. This situation does not arise in the present case, as the claimants were already occupying their flats when the
Tate’s
viewing
gallery was opened. But it is worth noticing the reasons why Mr Bridgman’s longstanding use of his property did not give him a defence, and why indeed it would have been unjust if it had done so, because those reasons shed further light on the principles which underpin the law of nuisance. The rationale for the approach taken by the common law can be seen by comparing the alternatives.
vibrations
would prevent the ordinary use of any new room that his neighbour might later wish to build against the party wall. There are good reasons why the law does not permit such a claim. First, requiring actual interference to be shown allows someone in Mr Bridgman’s position to make use of his land, at least for the time being, in a way that benefits him and is not inconveniencing his neighbour. Second, the potential conflict of use might never actually arise. For example, Mr Bridgman’s neighbour might never have chosen to build a new room on the other side of the party wall, or Mr Bridgman might have installed new kitchen equipment which did not cause the same noise and
vibrations,
or his premises might have been converted to a different use. It is not desirable to have litigation about possible future conflicts that may never actually occur.
v
Bridgman by reference to an example of a blacksmith’s forge “built away from all habitations, but to which, in course of time, habitations approach.” Thesiger LJ said, at p 865:
“It would be on the one hand in a
very
high degree unreasonable and undesirable that there should be a right of action for acts which are not in the present condition of the adjoining land, and possibly never will be any annoyance or inconvenience to either its owner or occupier; and it would be on the other hand in an equally degree unjust, and, from a public point of
view,
inexpedient that the use and
value
of the adjoining land should, for all time and under all circumstances, be restricted and diminished by reason of the continuance of acts incapable of physical interruption, and which the law gives no power to prevent.”
Thesiger LJ pointed out that, if the blacksmith wished to protect himself from the risk of future claims for nuisance, he might do so “by taking a sufficient curtilage to ensure what he does from being at any time an annoyance to his neighbour.”
v
Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822. There is discussion (obiter) in the judgments of Lord Neuberger and Lord Carnwath in that case of the possibility that a use of the defendant’s land which pre-dates a change in use of the claimant’s land may nevertheless support a defence by contributing to the character of the locality. The points discussed may in future need to be revisited but do not arise for decision on this appeal.
(8) The public interest
C. Applying the law in this case
Tate’s
viewing
gallery for much of the day, every day of the week; that the number of spectators is in the hundreds of thousands each year; and that spectators frequently take photographs of the interiors of the flats and sometimes post them on social media. It is not difficult to imagine how oppressive living in such circumstances would feel for any ordinary person - much like being on display in a zoo. It is hardly surprising that the judge concluded that this level of
visual
intrusion would reasonably be regarded by a homeowner as a material intrusion into the privacy of their living accommodation. On his findings it is beyond doubt that the
viewing
and photography which take place from the
Tate’s
building cause a substantial interference with the ordinary use and enjoyment of the claimants’ properties.
Tate
does not encourage
visitors
to peer into the claimants’ flats. Indeed, in response to complaints from the claimants it posted a sign in the
viewing
gallery asking
visitors
to respect the privacy of the
Tate’s
neighbours and instructed security guards to stop photography of the flats. However, the judge did not regard these steps as likely to achieve much, describing them as “not quite wholly useless”: [2019] Ch 369, paras 69, 221. No attempt has been made, nor could realistically be made, to stop
visitors
from looking, sometimes intently, into the claimants’ flats whenever the south side of the gallery is open; and in an age when most people carry a smartphone with a high powered camera it is a natural and foreseeable consequence of allowing thousands of
visitors
a week to look out from a
viewing
gallery from which they get a clear
view
of the claimants’ living accommodation that a significant number will take photographs of the interiors of the flats, just as the judge found that they in fact do.
Tate
Modern and the Neo Bankside flats are situated as “a part of urban south London used for a mixture of residential, cultural, tourist and commercial purposes.” He noted that an occupier in that environment “can expect rather less privacy than perhaps a rural occupier might” and that “[a]nyone who lives in an inner city can expect to live quite cheek by jowl with neighbours”: para 190. But he made no finding that there is any other
viewing
platform in that part of London; nor that operating a public
viewing
gallery is necessary for the common and ordinary use and occupation of the
Tate’s
land. The
Tate
did not make, and could not credibly have made, any such allegation. Inviting members of the public to look out from a
viewing
gallery is manifestly a
very
particular and exceptional use of land. It cannot even be said to be a necessary or ordinary incident of operating an art museum. Hence, the
Tate
cannot rely on the principle of give and take and argue that it seeks no more toleration from its neighbours for its activities than they would expect the
Tate
to show for them.
viewing
gallery had already been operating when the Neo Bankside flats were built or when the claimants acquired their flats; and that even if the question of who was there first had been relevant, it would not have assisted the
Tate.
The claimants all bought their flats in 2013 or 2014. The Blavatnik Building including the
viewing
gallery was first opened to the public in June 2016. Although considerable time and evidence seems to have been devoted at the trial to investigating what the
Tate
and the developers of the Neo Bankside flats knew of each other’s intended uses of their land at
various
stages of the planning process, I cannot see how this information could be relevant to whether or not the
Tate
is liable in nuisance; and counsel for the
Tate
have not argued on this appeal that it is.
Tate
on this appeal put at the front and centre of their case the submission that the Court of Appeal’s reasoning was correct. But they also relied as a fallback, if necessary, on the reasons given by the judge, and I will consider those reasons first.
D. The judge’s reasons
(1) “Reasonable use” of the
Tate’s
land
Tate
Modern, in operating the
viewing
gallery as it does, is making an unreasonable use of its land ...” The judge thought that this required an overall assessment bearing in mind the nature of the
Tate’s
use of its land, the character of the locality and “bearing in mind that the
victim
is expected to have to put up with some give and take appropriate to modern society and the locale”: [2019] Ch 369, para 180. The judge thus made the same mistake, or cluster of mistakes, as the trial judge in Barr
v
Biffa Waste Services Ltd (see paras 32-33 above), a case that unfortunately does not appear to have been cited to him. He thought that an overall assessment was required of what - in an undefined sense - is “reasonable” in all the circumstances. He treated the rule of give and take as if it were an element of such an assessment of “reasonableness” rather than a principle of reciprocity and equal justice. And he asked himself whether the nature of the
Tate’s
use of its land is “reasonable”, instead of asking whether it is a common and ordinary use.
viewing
gallery is not an inherently unreasonable activity in the neighbourhood: see para 196. Nowhere did the judge consider whether the operation of a
viewing
gallery is necessary for the common and ordinary use and occupation of the
Tate’s
land. Had he done so, he would have been bound to conclude that, as in Bamford
v
Turnley itself, the
Tate
was not using its land “in a common and ordinary way, but in an exceptional manner.”
vitiate
the judge’s legal analysis. But he also applied the law incorrectly in considering the impact of the
Tate’s
activities on the ordinary use and enjoyment of the claimants’ flats. Although the Court of Appeal dealt with them together, I think it convenient to address separately the judge’s reasoning in relation to (a) the “sensitivity” of the flats and (b) the availability of “protective measures”.
(2) “Sensitive” buildings
vertical
and perhaps horizontal breaks to interrupt the inward
view”
(paras 201-202). As he acknowledged, no evidence or argument had been addressed to this question at the trial but the judge undertook the exercise anyway and hypothesised that, for the occupier of such an imaginary building, the
vulnerability
to the
view
from the gallery would not be sufficient to amount to a nuisance (para 203). The judge also drew an analogy with the principle that the liability of a defendant cannot be increased by the use of the claimant’s property for a particularly sensitive purpose (para 204).
The “winter gardens”
Relevance of the glassed design
view
is a relevant factor. It is relevant to the
visual
intrusion that the occupants can be expected to tolerate. Where in my
view
the judge went wrong was in how he analysed this question. Critically, he did not distinguish between two different arguments, one of which is
valid
and the other of which is not.
Sensitivity to the ordinary use of neighbouring land
valid
argument, as anyone who walks around central London can observe, floor to ceiling windows are a common feature of modern, high-rise city buildings. Neither the
Tate
nor the judge suggested otherwise. Such windows are no doubt attractive to owners and occupiers because of the amount of light, sense of space and (particularly on floors high above ground level) extensive
views
which they afford. But the judge was plainly right to say that those advantages come at a price in terms of privacy. In an inner-city environment the occupier of a flat high above ground level must recognise the possibility that a building of similar height might be constructed nearby from which the occupants can see through their windows. That reflects the nature of the locality as described by the judge. To the extent that such a nearby building is used in a common and ordinary way - for example, as housing or offices - the fact that the interiors of flats with glass walls can be seen is something the owners have to put up with in accordance with the rule of give and take. Increased exposure to the outside world is an inevitable consequence of the design. The fact that the properties have been designed and constructed in a way which makes them particularly
vulnerable
to inward
view
cannot increase the liabilities of neighbours.
visible
to her neighbour just as her neighbour would have to put up with being
visible
to her. It would be required by the rule of give and take, live and let live.
v
Peak Ingredients Ltd (2011) 4 JPL 429, on which counsel for the
Tate
relied, further illustrates this point. The parties in that case occupied adjacent premises on a light industrial estate. The claimant complained of food smells entering its offices (owing to the porous nature of the party wall) from the food additive manufacturing unit next door. The deputy judge found that, having regard to the nature of the locality, the degree of interference was insufficient to amount to a nuisance. This was sufficient reason in itself to dismiss the claim. But relevantly for present purposes the judge also found that the defendant was making an ordinary use of its industrial premises and was not conducting its operations in an unreasonable manner. Hence, by analogy with the Southwark case, the defendant was in any case not liable. The Court of Appeal affirmed these findings: [2011] Env LR 34. This is another example, therefore, of a case where the rule of give and take applied.
Sensitivity to abnormal use
Tate
in this case. But it is not supported by precedent and is unsound in principle.
v
McAlpine [1923] 1 Ch 167, where heavy
vibration
from pile driving during construction works caused serious structural damage to an old hotel belonging to the plaintiffs. The defendant asserted that any damage was due to the abnormally unstable construction of the plaintiffs’ building. Just as the judge did in this case, the defendant relied on an analogy with Robinson
v
Kilvert and the principle that a claimant who uses property to carry on “an exceptionally delicate trade” cannot complain of injury which would not have been suffered if the claimant had carried on any ordinary trade. The defence failed on the facts because Astbury J did not accept that the plaintiffs’ building, although old and built much less robustly than more modern buildings, was “the delicate and fastidious erection which has been suggested by the defendants” (p 175). The judge did not find it necessary to decide whether as a matter of law such an argument could ever succeed, but observed (at p 176):
“If the defendants’ contentions of law were really apposite I should find it difficult to answer the query: ‘When does an old building lose its ordinary right of protection against destruction?’”
value
of the claimant’s land, and not to the comfort of the individuals who are occupying it. The particular sensitivities or idiosyncrasies of those individuals are therefore not relevant, and the law measures the extent of the interference by reference to the sensibilities of an average or ordinary person. By contrast, it is the utility of the actual land, including the buildings actually constructed on it, for which the law of private nuisance provides protection - not for some hypothetical building of “average” or “ordinary” construction and design.
v
Canary Wharf Ltd, that interference with the use of land caused by the presence or construction or design of a building on the defendant’s land is not actionable as a nuisance (see para 35 above). By the same token, it is not a defence for a defendant to argue that the interference was caused by the presence or construction or design of the claimant’s building. So in Sturges
v
Bridgman (1879) 11 Ch D 852, for example, the fact that no nuisance arose until Dr Sturges’ consulting room was erected did not afford a defence to the claim. Nor did it afford a defence that, as Mr Bridgman argued, if Dr Sturges had built his consulting room with a separate wall and not directly against the party wall, he would not have experienced any noise or
vibration
(see p 854). The same point could be made about countless other cases of nuisance. It is not a defence that the defendant's activity would not have caused a nuisance if the claimant’s building had been differently constructed or designed.
Tate
sought to draw support from Southwark and Hirose, mentioned above. Adopting the
view
expressed by the authors of Winfield and Jolowicz on Tort, 20th ed (2020), para 15-031, counsel submitted that the best explanation for the decision in Southwark is that the claim failed because the claimants’ flats were abnormally sensitive to noise. Similarly, they submitted that the decision in Hirose should be explained on the ground that the physical attributes of the party wall made the claimant’s property abnormally sensitive to the odours generated in the adjoining unit. These cases were thus said to support a principle that it may be a defence that the claimant is occupying an abnormally sensitive property.
very
good reason, the House of Lords did not decide that the claim failed because the claimants only had themselves to blame for renting flats with inadequate sound insulation in circumstances where they would not have suffered a nuisance if they had occupied “normal” flats. There is no hint of such unsatisfactory reasoning in the judgments. Nor was Hirose decided on the ground that no claim lay because the party wall was porous and the claimant would not have been subjected to the smell if it had occupied a “normally” built unit. In each case the “sensitive” nature of the physical make-up of the building did not itself provide a defence. It was simply part of the factual setting in which the claim arose and had to be decided, neutral in itself. The reason why the defendant had a good defence in each case was because of the principle that “those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action.” That principle applies equally whatever the construction or design of the claimant’s (or the defendant’s) property and does not depend on whether either property is adjudged to be abnormally sensitive.
Conclusion on the relevance of sensitivity in design and construction
vulnerable
to interference from one another’s activities. But such sensitivity does not alter the principles by which their reciprocal rights and obligations are determined. If an occupier is merely using her premises in a common and ordinary way and acting with as much consideration for neighbouring occupiers as can reasonably be expected, then she will not be liable in nuisance. The design of the building may in that way result in an occupier having to put up with greater interference with the ordinary use and enjoyment of her property than she would otherwise have to put up with - but only to the extent required to enable her neighbour to use his own property for the ordinary purposes of life.
visual
intrusion to which they would not have been exposed in a differently designed building, this is again something they have to put up with in accordance with the general principles of common law nuisance.
viewing
of the claimants’ flats goes far beyond anything that could reasonably be regarded as a necessary or natural consequence of the common and ordinary use and occupation of the
Tate’s
land. Thus, the judge did not accept that, even in a part of London used partly for cultural purposes and which attracts tourists, making a
viewing
gallery available to members of the public is an activity which should actually be expected: [2019] Ch 369, para 193.
visitors
a year to look out at the
view
from your building cannot by any stretch of the imagination be regarded as a common or ordinary use of land. Equally, having thousands of people each day looking into the interior of your flat, often taking photographs (which are sometimes posted on social media) and occasionally using binoculars, cannot possibly be justified by the rule of give and take. A flat owner who objects to this use of neighbouring land is not demanding of her neighbour any more than she must allow him to demand of her. She is not seeking any special or unequal treatment. She is asking only for her neighbour to show the same consideration towards her as he would expect her to show towards him.
Extreme cases of abnormal construction
v
Greenwood [1984] 1 NZLR 525 may be an example of such a case. That was the case where (in the middle of the day during the summer months when the sun was at its brightest) glass roofing panels on the defendant’s building deflected the sun’s rays in such a way as to cast a dazzling glare through the windows of properties across the street. As Lord Lloyd noted in Hunter, at p 700A-C, it is not easy to reconcile the finding of nuisance in the Bank of New Zealand case with the decision of the House of Lords in Hunter that the interference with television reception caused by the size of the defendant’s building and its stainless steel cladding was not actionable. Lord Goff suggested that the Bank of New Zealand case might be explained on the basis that the design of the defendant’s building had the effect of deflecting the sunlight at such an angle and in such a manner as to cause “a high intensity dazzle”, such that the nuisance was caused not by the mere presence of the building but by something emanating from the defendant’s land: see pp 685G-686C. However, this distinction is unconvincing since, as Lord Lloyd pointed out, even if the light rays are regarded as having emanated from the defendant’s land, a nuisance need not be caused by something emanating from the defendant’s land and may arise from a mere state of affairs (see para 13 above). Assuming the Bank of New Zealand case was correctly decided, it may therefore need to be explained on the basis that the interference caused by the design of the defendant’s building was so unusual and unforeseeable as to be beyond anything that could actually be expected. Certainly, as Lord Lloyd said at p 700C, that case would seem to “go to the limit of the law of nuisance”.
v
Fenton, 111 NE 855 (Mass 1916), an American case where the plaintiff complained of
vibrations
to his house caused by the operation of machinery from a factory adjoining his premises. The claim failed. It was found as a fact that the age and unsubstantial construction of the plaintiff’s house were such that “it would shake or jar … even by a person walking across the floor” and that this condition was unavoidable unless all operation of the machinery was suspended. In the light of these findings, the Massachusetts Supreme Judicial Court felt unable to say that, as a matter of law, the decision to dismiss the claim was wrong. Again, the facts of this case seem to me indicative of the kind of extreme circumstances in which the abnormal construction of a building might possibly be relevant.
view
on this question, however, since if there can be cases in which extreme abnormality of the physical attributes of a building may give rise to a claim or to a defence, the present case is on any
view
not one of them. There is no basis for regarding the glass walls of the claimants’ flats as unusual, either in the context of modern high-rise blocks of flats generally or in the particular locality. Still less is there any basis for suggesting that the glassed design is so aberrant as arguably to put the flats in the category of highly abnormal buildings of which, if it exists, the buildings in the Bank of New Zealand case and Cremidas
v
Fenton may be examples. The overall architectural design of the Neo Bankside blocks of flats, which have exo-skeletons of steel as well as floor to ceiling windows alternating with some wooden fascias, is striking. But that is not to say that floor to ceiling windows without
vertical
or horizontal breaks of the kind that it incorporates are unusual, let alone off the scale of anything that could actually be expected. In this action the
Tate
has never made any such allegation. Nor (so far as the judgment indicates) was there any evidence at the trial to that effect. Both parties adduced evidence from planning experts but the experts did not suggest that what they described in their joint report as the “fully glazed facades” of the Neo Bankside buildings are abnormal or unusual. And the judge made no such finding.
Tate’s
viewing
gallery would have amounted to a nuisance if the claimants had lived in a hypothetical alternative building designed with “significant
vertical
and perhaps horizontal breaks to interrupt the inward
view”
(para 202). The judge’s “imaginary building” was not based on any evidence or information about the type or extent of glass panelling which is normal or represents the outer limit of anything that could be expected in the neighbourhood. There was therefore no basis or yardstick for comparing the Neo Bankside flats with “flats designed with more wall and less window”. To say, as the judge did, that a “differently built, but perfectly acceptable, property … would not have had the same degree of exposure” (para 211) is nothing to the point. There is no justification for regarding the windows of the claimants’ properties as departing from some relevant norm, built as they are.
(3) The possibility of protective measures
viewing
gallery. He identified three measures as meriting consideration: [2019] Ch 369, para 214. The claimants’ flats are fitted with solar blinds which they could lower during the day - albeit with the loss of their clear
view
of the outside world and of a certain amount of light. Secondly, they could install privacy film, which reflects the external light outwards - although it does not work when it is dark outside and seeking to install it might have planning implications. The third potential measure would be to install net curtains, which would have the same effect and drawbacks as lowering the blinds. Perhaps because of the uncertainty about the planning implications of privacy film, counsel for the
Tate
on this appeal emphasised the first and third of these possibilities and submitted that it would have been comparatively simple for the claimants to screen the
views
of the interiors of their flats by using their blinds or installing net curtains.
victim
of excessive dust would not be expected to put up additional sealing of doors and windows” and that “the
victim
of excessive noise would not be expected to buy earplugs”: para 215. However, the judge thought that “this is an unusual case” and that “privacy is a bit different” in that it has become acceptable to expect those who want to enhance their privacy to protect their own interests. He saw this as part of the give and take expected of neighbouring property owners and concluded, at para 215:
“Looking at the overall balance which has to be achieved, the availability and reasonableness of such measures is another reason why I consider there to be no nuisance in this case.”
victim
rather than on the person who carries out the activity. Arguments of this kind are unsound when relied on to justify any invasion of property rights. It does not avail a trespasser to assert that he would not have wandered onto the claimant’s land if the claimant had erected a fence, or a burglar to argue that the claimant’s house would not have been burgled if the claimant had installed stronger locks. In the same way it is unsound to argue that the defendant’s activity would not
violate
the claimant’s enjoyment of rights in land if the claimant took measures to prevent this.
Visual
intrusion is just the same. If the interior of a person’s home can be seen from the windows of houses across the street and the occupants wish to avoid being seen, it is for them to draw their blinds or take other measures of the kind suggested by the judge. But in all these cases the person whose activity causes the interference is using their property in a common and ordinary way. What is not acceptable is to place the burden on the claimant to mitigate the impact of a special use of the defendant’s property. To do so is inconsistent with the principle of reciprocity that underpins the law of nuisance.
“To expect these plaintiffs to provide sun barriers on their south-facing windows as part of the give and take of business in the central city would in reality be to require them to accept total responsibility for eliminating the defendants’ nuisance. As I have stated, the law will not require that.”
The same point applies here. The only material difference is that in the present case the interference which it is suggested that the
victims
should have to accept the responsibility for eliminating does not occur for only a few hours of the day at certain times of year as in the Bank of New Zealand case, but constantly for most of the day, day in and day out.
victim
have been rejected in other cases. In Miller
v
Jackson [1977] 1 QB 966 the Court of Appeal upheld a claim brought by the occupiers of a house built next to a cricket ground for nuisance caused by cricket balls being hit onto their land. It was argued by the club that the claimants could take measures to protect their property from the interference by, for example, fitting louvred shutters or unbreakable glass to their windows. In rejecting this argument, Geoffrey Lane LJ said, at p 985:
“There is no obligation on the plaintiffs to protect themselves in their own home from the activities of the defendants. Even if there were such an obligation it would be unreasonable to expect them to live behind shutters during the summer weekends and to stay out of their garden.”
v
Lord Advocate 1985 SC 173 noise made in erecting metal stands between June and August for the annual Edinburgh Military Tattoo caused a nuisance to the owner of a flat overlooking the esplanade at Edinburgh Castle. It was suggested that the flat owner could substantially reduce any annoyance or discomfort from noise by keeping her windows closed. In rejecting this argument, Lord Stott said, at p 181:
“… I do not think that in dealing with such a situation the pursuer is required to do more than conform to the ordinary habits of life as a reasonable person. In my opinion that does not include a requirement to keep her windows shut throughout the better part of the summer, far less to instal an approved system of double glazing which, of course, would in any event be useless except when the window was closed. … one of the nice things about summer is that you are able to open your windows.”
Tate
makes of its land. In circumstances where the claimants are doing no more than occupying and using their flats in an ordinary way and in accordance with the ordinary habits of a reasonable person, it is no answer for someone who interferes with that use by making an exceptional use of their own land to say that the claimants could protect themselves in their own homes by taking remedial measures.
E. The Court of Appeal’s reasons: “mere overlooking”
Tate
is liable in nuisance. The Court of Appeal nonetheless dismissed the appeal. They said, at para 99:
“There being no finding by the judge that the
viewing
gallery is ‘necessary’ for the common and ordinary use and occupation of the
Tate
within Bramwell B’s statement in Bamford 3 B & S 66 quoted above, once it is established that the use of the
viewing
balcony has caused material damage to the amenity
value
of the claimants’ flats and that the use of the flats is ordinary and reasonable, having regard to the locality, there would be a liability in nuisance if (contrary to our decision) the cause of action extended to overlooking. There would be no question in those circumstances of any particular sensitivity of the flats, nor of any need on the part of the claimants to take what the judge described (in para 214) as ‘remedial steps’…” (emphasis added)
The words I have italicised indicate the sole reason why the Court of Appeal did not find the
Tate
liable in nuisance: they decided that liability in nuisance does not extend to “overlooking”. I agree with that proposition. But where I believe the Court of Appeal went wrong was in supposing that this claim is about “overlooking”.
(1) The meaning of “overlooking”
view,
from a greater height, of the other - as in a statement such as “your flat overlooks my back garden.” I agree with the Court of Appeal that the fact that a building or other structure erected on someone’s land overlooks neighbouring land cannot give rise to liability in nuisance. That follows from the general principle discussed above that at common law anyone is free to build on their land as they choose, with the corollary that the mere presence or construction or design of a building (other than perhaps in extreme circumstances) cannot be an actionable nuisance. Thus, in this case the claimants cannot object under the common law of nuisance to the fact that the
Tate
has built the Blavatnik Building with a walkway around the top floor which overlooks their flats.
(2) The complaint in this case
Tate
of the top floor. They complain that the
Tate
actively invites members of the public to
visit
and look out from that location in every direction, including at the claimants’ flats situated only 30 odd metres away; that the
Tate
permits and invites this activity to continue without interruption for the best part of the day every day of the week; and that this has the predictable consequence that a
very
significant number of the roughly half a million people who
visit
the
Tate’s
viewing
gallery each year peer into the claimants’ flats and take photographs of them. To argue that this use of the defendant’s land cannot be a nuisance because “overlooking” (in the Court of Appeal’s sense) cannot be a nuisance is like arguing that, because ordinary household noise caused by neighbours does not constitute a nuisance, inviting a brass band to practise all day every day in my back garden cannot be an actionable nuisance; or that because the smell of your neighbour’s cooking at mealtimes is something you have to put up with, noxious odours from industrial production cannot be an actionable nuisance. The conclusion simply does not follow from the premise.
(3) The arguments concerning “overlooking”
visual
intrusion cannot be an actionable nuisance. The judgment recognises that different categories of nuisance are merely examples and that no rigid categorisation of relevant factual situations is possible: see [2020] Ch 621, paras 32-33. Nor did the Court of Appeal adopt the theory that nuisance can only result from physical emanations from the defendant’s land or physical invasions of the claimant’s land - a theory which, for the reasons given at para 13 above, is not sustainable. Rather, their suggestion is that “overlooking” is one of a small number of specific types of interference with the use and enjoyment of land which are excluded from the scope of the law of private nuisance as a matter of legal precedent and policy.
(4) Precedent
Tate
has argued on this appeal, that
visual
intrusion cannot give rise to a cause of action in private nuisance no matter how constant and oppressive, then I do not accept that any judicial authority has been cited which supports such a proposition.
very
light. It consists principally of obiter dicta in three nineteenth century cases concerned with obstruction of an acquired right to receive light through a defined aperture. In each case the claimant sought an injunction to require the defendant to remove the obstruction and the defendant opposed the claim by arguing that the claimant had installed new windows and, in those circumstances, could not rely on the previously acquired right to light. In each case the court held that, in so far as the new windows occupied existing apertures through which there was a right to light, the defendant’s obstruction of them was unlawful. It was in this context that remarks were made that the installation of new windows could not itself be the subject of complaint because “opening” (ie installing) a window overlooking a neighbour’s land does not give rise to a claim in nuisance.
v
Thompson (1811) 3 Camp 80 at 82, Le Blanc J is reported as saying that, “although an action for opening a window to disturb the plaintiff’s privacy was to be read of in the books, he had never known such an action maintained” and that “he had heard it laid down by Lord Eyre CJ that such an action did not lie, and that the only remedy was to build on the adjoining land, opposite to the offensive window.” There are further dicta to similar effect in Turner
v
Spooner (1861) 30 LJ (Ch) 801, 803, and in Tapling
v
Jones (1865) 20 CBNS 166, a decision of the House of Lords. For example, in Tapling
v
Jones, at p 179, Lord Westbury LC said that “invasion of privacy, by opening windows” is “not treated by the law as a wrong for which any remedy is given”; and Lord Chelmsford said, at pp 191-192, that “the owner of a house has a right at all times … to open as many windows in his own house as he pleases” and that “the only remedy in the power of the adjoining owner is to build on his own land, and so to shut out the offensive windows.”
Victoria
Park Racing and Recreation Grounds Co Ltd
v
Taylor (1937) 58 CLR 479. In that case the owner of land next to a racecourse allowed an observation platform to be built on his land from which a radio broadcaster could see the races and give a running commentary. The owner of the racecourse complained that this activity resulted in loss of business because many people who would otherwise have paid to watch the races listened to the commentary instead. The majority of the High Court held that the claimant had no right of action for (among other things) nuisance. Again, however, this was not a case of nuisance caused by
visual
intrusion. It could not reasonably be said that a single person looking onto the claimant’s land while races were taking place caused even trifling annoyance. The real issue was whether the broadcasting of a commentary on the races was a nuisance. The claim failed because the majority of the court held that, as Dixon J put it at p 508, “the substance of the plaintiff’s complaint goes to interference, not with its enjoyment of the land, but with the profitable conduct of its business”. Again, this decision provides no support at all for the proposition that watching from a neighbouring property, however persistent and intrusive, can never amount to a nuisance.
v
Hughes (1995) 7 BPR 14837. In that case the defendants had installed on their property floodlights and camera surveillance equipment aimed at the plaintiffs’ backyard. The floodlight system was activated automatically by a sensor in response to movement or noise on the plaintiffs’ land. The illumination from the floodlights then enabled the camera to film and record on
videotape
what was happening on the plaintiffs’ land. The judge granted an interim injunction, holding that both the bright light and the surveillance were capable in law of constituting an actionable nuisance.
v
Munroe 2009 BCSC 1403 a court in British Columbia held that positioning a surveillance camera so that it continuously observed the entrance areas to the claimants’ neighbouring property was an intolerable interference with the use and enjoyment of the claimants’ property and constituted a private nuisance. The court cited several other Canadian cases in which
video
surveillance of a neighbouring property was held to amount to a private nuisance. One of those cases, Wasserman
v
Hall 2009 BCSC 1318, was also cited by counsel for the claimants in their argument on this appeal.
Tate’s
viewing
gallery” (para 72). I agree that it is quite different from just overlooking, but not that it is materially different from what takes place on the
Tate’s
viewing
gallery. In each case the activity complained of is constant observation and photography. It is true that in Raciti (and the two Canadian cases mentioned above) the defendants were found to be deliberately spying on their neighbours and it is not suggested that the purpose of the
Tate’s
viewing
gallery is to spy on the claimants’ activities. But it is a predictable consequence of operating such a
viewing
gallery that, of the thousands of people who
visit
it each day, a
very
significant number will take an interest (as the judge found that they do) in how the claimants seek to conduct their lives in their flats.
visual
intrusion. The circumstances in which land is used in an unusual way which gives rise to
visual
intrusion on a neighbouring property of sufficient duration and intensity to be actionable as a nuisance are likely to be rare. The potential for such claims has, however, been markedly increased by developments in technology. Being photographed or filmed from neighbouring property is a far greater interference with the ordinary use and enjoyment of land than simply being observed with the naked eye. In an article published in 1931 Sir Percy Winfield referred to an unreported case involving a family in Balham who by placing an arrangement of large mirrors in their garden were able to observe everything that happened in the study and operating room of a neighbouring dentist. Professor Winfield saw no reason why this activity should not have been actionable as a nuisance: see Winfield, “Privacy” (1931) 47 LQR 23, 27. Nor do I. But nowadays the ready availability of CCTV equipment means that no such ingenuity is required to place neighbouring land under constant observation. Similarly, the intensity of the interference in the present case is made possible by the fact that a large proportion of the population now carry a camera incorporated in their smartphone. And the sharing of images on social media adds a further dimension to the interference.
visual
intrusion cannot constitute a nuisance is not supported by precedent and indeed that such direct authority as there is positively supports the opposite conclusion.
(5) Policy arguments
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needed for resisting such an extension of the law. But I will consider whether any of the policy reasons given by the Court of Appeal for not extending nuisance to overlooking could justify creating a special exception from the ordinary principles of nuisance for interference caused by watching and photography.
Difficulty in drawing the line
viewing
it would be difficult to apply the objective test at common law for deciding whether there has been a material interference with the amenity
value
of the affected land. The Court of Appeal said, at para 81:
“While the
viewing
of the claimants’ land by thousands of people from the
Tate’s
viewing
gallery may be thought to be a clear case of nuisance at one end of the spectrum, overlooking on a much smaller scale may be just as objectively annoying to owners and occupiers of overlooked properties.”
The Court of Appeal found it “difficult to envisage any clear legal guidance as to where the line would be drawn between what is legal and what is not.”
viewing
in which it is difficult to decide whether or not the objective test of nuisance is met, there should be no liability in a case where the test is clearly met - of which the Court of Appeal seem (rightly in my
view)
to accept that this case is an example. This argument is deeply unpersuasive. The law would be utterly ineffectual if the possibility of hard cases were treated as a reason to deny relief in clear cases.
viewing
of the claimants’ flats from the
Tate’s
viewing
gallery by thousands of people every day (of whom a significant number take photographs). Nor do I accept that intrusive
viewing
is intrinsically more subjective or harder to judge than other forms of nuisance. For example, people
vary
significantly in their sensitivity to noise, not only as to
volume
but as to different types of sound. There are smells which some people find seriously unpleasant and others do not. That is not to mention the cases of nuisance involving offensive sights. In none of these types of case is there a scientific test which a judge can apply, or more specific legal guidance which an appellate court can give, to identify where the line should be drawn. In each case the court just has to make a judgment about whether the nature and degree of interference exceeds what an ordinary person would regard as acceptable. I think that in practice courts seek to make allowance for
variations
in normal human reactions by building a margin into their assessment and requiring quite a high level of interference before finding an interference with the ordinary use of property to be sufficiently serious to amount to a nuisance. But of course there will be some finely balanced cases in which different judges applying the same test to the same facts may reach different conclusions. The possibility of such disagreement is inherent in the task of judging. There is nothing peculiar about assessing whether
visual
intrusion amounts to a nuisance which puts such cases beyond the pale.
Reliance on planning law
violations
of private rights in the use of land. Its purpose is to control the development of land in the public interest. The objectives which a planning authority may take into account in formulating policy and in deciding whether to grant permission for building on land or for a material change of use are open-ended and include a broad range of environmental, social and economic considerations. While a planning authority is likely to consider the potential effect of a new building or use of land on the amenity
value
of neighbouring properties, there is no obligation to give this factor any particular weight in the assessment. Quite apart from this, as Lord Neuberger observed in Lawrence
v
Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822, para 95:
“when granting planning permission for a change of use, a planning authority would be entitled to assume that a neighbour whose private rights might be infringed by that use could enforce those rights in a nuisance action; it could not be expected to take on itself the role of deciding a neighbour’s common law rights.”
“Short of express or implied statutory authority to commit a nuisance … there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights.”
The practical as well as legal irrelevance of planning permission in this case is apparent from the judge’s finding that no consideration was given to overlooking in the planning process for the
Tate
extension: [2019] Ch 369, paras 58-63.
Invasion of privacy
view
that this is an area which is better left to the legislature to decide whether any further laws are needed rather than for the courts to extend the law of private nuisance (para 85).
very
broad term which encompasses an assortment of more specific concepts and human interests. As the list given by the Court of Appeal indicates,
various
legally distinct wrongs are all capable of being described as “invasions of privacy”. The watching and photography that takes place from the
Tate’s
viewing
gallery can be said to fall under that broad description. Contrary to what is said by the Court of Appeal, however, the claimants’ complaint is indeed one of damage to interests in property. The concepts of invasion of privacy and damage to interests in property are not mutually exclusive. An important aspect of the amenity
value
of real property is the freedom to conduct your life in your own home without being constantly watched and photographed by strangers. Damage to that interest might in some cases also give rise to other causes of action, for example harassment, though they do not here. The (sole) issue in this case is whether the
viewing
and photography to which the claimants are subjected on a daily basis
violates
the claimants’ rights to the use and enjoyment of their flats. No new privacy laws are needed to deal with this complaint. The general principles of the common law of nuisance are perfectly adequate to do so.
F. the public interest
Tate’s
viewing
gallery. To be clear, I do not suggest that it is wrong to take account of the public interest. What is wrong is to treat it as relevant to the question of liability for nuisance rather than only, where liability is established, to the question of what remedy to grant.
(1) How the courts below took account of the public interest
viewing
gallery is a “reasonable” use of the
Tate’s
land. It is not that the judge ignored the harm caused to the claimants (although he wrongly discounted it for the reasons discussed above). But he saw his task as being to conduct a balancing exercise, in which the “reasonableness” or otherwise “per se” of the
Tate’s
use of its land had to be weighed against the interests of the claimants in the use of their flats: see [2019] Ch 369, paras 180, 203, 220. I have already explained why that approach is contrary to settled principles but it is worth asking what it means to say that a particular use of land is reasonable or unreasonable in itself.
view”
from the
viewing
gallery (para 196), which I take to be a judgment about the benefit of making a full 360-degree
view
accessible to the public. Earlier in the judgment he described such a panoramic
view
of London as “rather splendid” and said that “members of the public will find it
very
attractive” (para 5).
Tate
submit that this was indeed how the judge approached the matter and positively advocate this approach. In their submissions to the Court of Appeal they argued that the judge was correct to balance the “utility and general benefit to the community” of the
Tate’s
use of the
viewing
gallery against the claimants’ interests: see [2020] Ch 621, 627B and H. And in their written case on this appeal (para 126) they submit that the judge was right to consider the reasonableness of the
Tate’s
use because “the court is inevitably concerned with the utility or general benefit to the community of a defendant’s activity”.
view
that any decision about whether to restrict the use of the
viewing
gallery should take account of the public interest. They considered that “there are complex issues about reconciling the different interests - public and private - in a unique part of London, with unique attractions, which draw millions of
visitors
every year” (para 83). But they saw this task as outside the competence of the common law of nuisance. Hence their proposal that such issues should be left to planning laws or, if these are not adequate for the task, to Parliament to formulate any further laws that are perceived to be necessary: see paras 84-85.
various
motor sports. Industrial activities which cause atmospheric pollution to neighbouring land may have substantial economic importance including for those employed in the undertaking. These are classic cases falling within the scope of the law of nuisance. The difficulties of reconciling the different public and private interests involved in such cases have not been treated as a reason for the courts to abstain from granting any remedy for
violations
of private rights in respect of land use, and instead to leave such matters to the planning system or the legislature. And rightly so. The result of such abstinence would in practice simply be to leave the rights of individuals without any effective protection. That was what the Court of Appeal did here.
(2) Why the public interest is not relevant to liability
violation
of real property rights (see paras 10-11 above). The
very
nature of property rights requires that, as a general principle, they be respected by all others unless relinquished
voluntarily.
The fact that it would be of general benefit to the community to use your land for a particular purpose - say, as a short-cut or as a place for taking exercise - is not a reason to allow such use without your consent. The same applies to nuisance. It is not a justification for carrying on an activity which substantially interferes with the ordinary use of your land that the community as a whole will benefit from the interference. In Sturges
v
Bridgman, for example, no one thought it relevant to examine the public utility of Mr Bridgman’s use of his land for making confectionery or to seek to compare this with the public utility of Dr Sturges’ use of his consulting room. (Although the economist Ronald Coase was understood by some to have proposed such an approach in a famous essay, it is entirely inconsistent with the common law: see RH Coase, “The Problem of Social Cost” (1960) 3 JL & Econ 1; and David Campbell & Matthias Klaes, “What Did Ronald Coase Know about the Law of Tort?” (2016) 39 Melb U L Rev 793.) The point of the law of private nuisance is to protect equality of rights between neighbouring occupiers to the use and enjoyment of their own land when those rights conflict. In deciding whether one party’s use has infringed the other’s rights, the public utility of the conflicting uses is not relevant.
violation
of their rights. In other words, the public interest may sometimes justify awarding damages rather than granting an injunction to restrain the defendant’s harmful activity, but it cannot justify denying the
victim
any remedy at all.
v
Turnley (1862) 3 B & S 66, which I have already discussed. I return to it because the approach advocated by counsel for the
Tate
of taking account of the utility and general benefit to the community of the defendant’s land use by asking whether it is “reasonable” was expressly and unequivocally rejected in that case.
“Now, in the first place, that law to my mind is a bad one which, for the public benefit, inflicts loss on an individual without compensation. But further, with great respect, I think this consideration misapplied in this and in many other cases. The public consists of all the individuals of it, and a thing is only for the public benefit when it is productive of good to those individuals on the balance of loss and gain to all. So that if all the loss and all the gain were borne and received by one individual, he on the whole would be a gainer. But whenever this is the case, - whenever a thing is for the public benefit, properly understood, - the loss to the individuals of the public who lose will bear compensation out of the gains of those who gain. It is for the public benefit there should be railways, but it would not be unless the gain of having the railway was sufficient to compensate the loss occasioned by the use of the land required for its site; and accordingly no one thinks it would be right to take an individual’s land without compensation to make a railway.”
Bramwell B returned to this theme in Brand
v
Hammersmith and City Railway Co (1867) LR 2 QB 223, 230-231.
viewing
gallery or anything else - which benefits many people but damages the amenity
value
of neighbouring land, the relevant question to ask is on which individuals should the loss fall. Should it be borne by the individuals on whom the loss is inflicted or by those who gain from the activity? Once the problem is seen in this way, the answer is obvious. Bramwell B was ahead of his time in perceiving what is now a commonplace of economics that it is in the interests of economic efficiency that the external costs of an activity should be internalised. But his more fundamental point is a point about justice. It is most unjust to allow those who benefit from a use of land which inflicts loss on a neighbour to do so without either stopping the activity or compensating the loss.
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would be unjust. It is whether it is sufficient to compensate the loss by awarding damages or whether the activity should be stopped by an injunction.
Damages in lieu of an injunction
very
restrictive approach to this question. Historically, only the Court of Chancery had the power to grant an injunction, whereas only the common law courts could award damages. Although Lord Cairns’ Act (the Chancery Amendment Act 1858) gave the Court of Chancery the power to award damages in lieu of an injunction, which all courts acquired following the Judicature Act 1873, some judges were reluctant to exercise it. A highly influential case was the decision of the Court of Appeal in Shelfer
v
City of London Electric Lighting Co [1895] 1 Ch 287, where the plaintiff complained of noise and
vibrations
caused by the running of turbines used by the defendant company to generate electricity, an activity of obvious benefit to the community. The trial judge found that the interference amounted to a nuisance but awarded damages in lieu of an injunction. The Court of Appeal reversed that decision. Lindley LJ said, at pp 315-6, that:
“ever since Lord Cairns’ Act was passed the Court of Chancery has repudiated the notion that the Legislature intended to turn that Court into a tribunal for legalizing wrongful acts; or in other words, the Court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict. Neither has the circumstance that the wrongdoer is in some sense a public benefactor (eg, a gas or water company or a sewer authority) ever been considered a sufficient reason for refusing to protect by injunction an individual whose rights are being persistently infringed.”
AL Smith LJ set out some criteria, at pp 322-323, intended as “a good working rule” for when damages might properly be granted in substitution for an injunction. The main criteria were that “the injury to the plaintiff’s legal rights … can be adequately compensated by a small money payment” and that “it would be oppressive to the defendant to grant an injunction”.
v
Jackson [1977] 1 QB 966, the case of a nuisance caused by cricket balls being hit onto the plaintiffs’ land. The Court of Appeal (by a majority) declined to grant an injunction and awarded damages having regard to what they saw as the public interest in not preventing cricket from being played.
view
that damages are ordinarily an adequate remedy for nuisance and that an injunction should not usually be granted in a case where it is likely that conflicting interests are engaged other than the parties’ interests” (para 161). This drew a protest from Lord Mance, who emphasised that “the right to enjoy one’s home without disturbance is one which I would believe that many, indeed most, people
value
for reasons largely if not entirely independent of money” (para 168). The majority agreed with Lord Neuberger, for whom the court’s power to award damages in lieu of an injunction “involves a classic exercise of discretion, which should not, as a matter of principle, be fettered” (para 120). Lord Neuberger recognised that nevertheless “it is appropriate to give as much guidance as possible so as to ensure that, while the discretion is not fettered, its manner of exercise is as predictable as possible” (para 121). But I think it fair to say that - perhaps because of the divergent opinions of the Justices - there is little in the way of such guidance to be gleaned from his judgment. Lord Neuberger ended his discussion of this issue by acknowledging that “we are at risk of introducing a degree of uncertainty into the law” but said that “in so far as there can be clearer or more precise principles, they will have to be worked out in the way familiar to the common law, namely on a case by case basis” (para 132).
G. remedy
Tate
is liable in nuisance, the question arises of what remedy the court should grant. Desirable as it is, however, for there to be a final resolution of these proceedings, I am driven to the
view
that the question is not one which this court can decide. It was not raised as an issue in the appeal and we have not heard any argument on the subject of remedies. Moreover, the question was left unresolved at the trial because of the judge’s conclusion on liability and, for the same reason, did not arise in the Court of Appeal.
view
have been an appropriate remedy. He observed that, had he been minded to grant an injunction to restrain use of the
viewing
gallery, it would not have extended beyond the southern section of the gallery. But he also said it was unlikely that, had he found there was a nuisance, he would have ordered any specific remedies. He indicated that in that event there might have been alternative remedial measures (such as installing louvres) which the
Tate
could put in place as an alternative to closing the part of the gallery or paying damages, but that “it would have been for the
Tate
to have proposed something.”
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capable of overriding the claimants’ prima facie remedy of an injunction; (ii) whether any remedial measures which the
Tate
may propose are sufficient to avoid an injunction or damages; (iii) the scope of any injunction; and (iv) questions of quantification of any award of damages.
Tate’s
use of the
viewing
gallery gives rise to liability to the claimants under the common law of nuisance and remit the case to the High Court to determine the appropriate remedy.
LORD SALES (dissenting, with whom Lord Kitchin agrees):
visual
intrusion by people looking into the living areas of the property? Secondly, if that is possible, have the claimants (the appellants in the appeal) established that there was an actionable private nuisance by reason of the
visual
intrusion which they have experienced in the circumstances of this case entitling them to injunctive relief?
view
that the judge had erred in his approach to and conclusion on the second. The claimants appeal to this court. In order to succeed on the appeal they have to win on both points. In relation to the second question a further, more mundane issue arises regarding the interpretation of what Mann J said about the facts of the case.
Factual background
Tate
Modern art gallery on the South Bank in central London. The claimants claim injunctive relief requiring the Board of Trustees of the
Tate
Gallery (I will refer to them as “the
Tate”)
to prevent members of the public, or any other licensees, from observing the claimants’ flats from certain parts of a
viewing
gallery which has been constructed on the top floor of a new extension to
Tate
Modern (“the
viewing
gallery”). The extension is called the Blavatnik Building.
views
out, but also exposes them (absent screening) to
view
from outside.
volume
of evidence on both sides. The judge also conducted a site
visit.
In his judgment Mann J examined the facts in meticulous detail: [2019] EWHC 246 (Ch); [2019] Ch 369. A full account of the design, planning and construction history of the flats and the
viewing
gallery can be found there. For the purposes of understanding the issues in the appeal it is sufficient to provide a summary of the facts.
Fearn,
has sold the long lease of his flat and the fifth appellant, Ms Urquhart, has let hers and no longer lives there). The design, planning process and construction of Neo Bankside took place between 2006 and September 2012. The claimants' flats are directly opposite the Blavatnik Building, which includes the
viewing
gallery. The
viewing
gallery runs around all four sides of the top floor, Level 10, and allows
visitors
to
Tate
Modern to enjoy a 360-degree panoramic
view
of central London.
vary
but each flat involved in this action comprises two parts: a general living space and a triangular end-piece known as a "winter garden". The winter gardens have floor-to-ceiling single-glazed windows, which are separated from the flat by double-glazed glass doors. They have the same heated flooring as the rest of the accommodation but are separated from the rest of the accommodation by a lip and the double-glazed doors. Although the winter gardens were initially conceived by the developers as a type of indoor balcony, in the case of all the claimants' flats the winter garden has been adapted to become part of the general living accommodation. The other sides of the flats which enclose the living space of the accommodation, including the kitchen, dining and sitting areas, are made up of floor-to-ceiling clear glass panels but equipped with wooden fascias which prevent a whole
view
of the interior of the dining and sitting areas, albeit they do not provide much screening. The remainder of the flats, comprising bedrooms and the like, do not have floor-to-ceiling glass, but instead have more conventional window type apertures, and the action is not concerned with these parts.
Tate
Modern is free and open to the public. The process of development of the Blavatnik Building took place between 2006 and 2016, including its design, the obtaining of planning permission and its construction. The
viewing
gallery is a particular feature. It provides a striking
view
of London to the north, west, and east, with a less interesting
view
to the south. Neo Bankside is located on the south side. The
viewing
gallery has been open to the public since the Blavatnik Building was completed in 2016. Access to it is free to
visitors
to
Tate
Modern. The
viewing
gallery attracts hundreds of thousands of people a year (with one estimate at 500,000 - 600,000), with a maximum of 300
visitors
at one time.
Visitors
spend 15 minutes on average in the
viewing
gallery.
viewing
gallery was open when the art gallery was open: 10am to 6pm Sunday to Thursday and 10am to 10pm on Friday and Saturday. However, in response to complaints from flat owners, from April 2018 the
Tate
shortened the opening times for the
viewing
gallery. It was closed to the public at 5.30pm on Sunday to Thursday, and on Friday and Saturday the south and west sides (from which the flats at Neo Bankside can be
viewed)
were closed from 7pm. The
Tate
also posted notices on the south side asking
visitors
to respect the privacy of
Tate
Modern’s neighbours and instructed security guards to stop people taking photographs of the flats and their occupants, but the judge found that these latter measures were not likely to achieve much. There is a monthly event called
Tate
Lates, which takes place on the last Friday of each month, and for which the whole
viewing
gallery remains open until 10pm. The
viewing
gallery also hosts internal events and external commercial events which are important for
Tate
Modern to bring in income. In its first 17 months 52 external events were hosted there.
viewing
gallery and the 18th floor flat in Block C is just over 34m. Absent a barrier,
visitors
to the
viewing
gallery can see straight into the living accommodation of the claimants' flats. The most extensive
view
is of the interior of flats 1801 and 1901, with less for flat 2101, and less again for flat 1301. The flats have been fitted with solar blinds which, when kept down, obscure the
view
of the interior of the flat from the outside during the day. In the evening, however, when the lights are on, shadows of occupants may be
visible
to onlookers. The solar blinds also obscure the
views
of the outside and deprive the occupants of the use of the windows on one side of their flat.
Visitors
in the
viewing
gallery frequently look into the claimants' flats and take photographs, and less frequently
view
the claimants and their flats with binoculars. Photographs of the flats are posted on social media by
visitors.
On the platform Instagram there were 124 posts in the period between June 2016 and April 2018. It has been estimated that those posts reached an audience of 38,600. Mann J found that there was a significant number of people using the
viewing
gallery who demonstrated a
visual
interest in the interiors of the flats, including by looking, peering in, taking photographs and waving to the occupants. He accepted that their numbers and the level of interest were such that a homeowner would reasonably regard this as intrusive so far as the use of the south side of the
viewing
gallery was concerned (by contrast, the western side of the
viewing
gallery is at an oblique angle to the flats, offering only a limited
view
into them).
viewers
in the
viewing
gallery completely oppressive. The judge found that the use of the
viewing
gallery constituted a material intrusion into the privacy of the living accommodation of the flats going well beyond what would be expected if the flats were overlooked by windows in residential or commercial buildings; unlike the
viewing
gallery, these would not have the primary purpose of providing a place to
view.
He found that, while sensitivity to the
visual
intrusion experienced might
vary
from person to person, the claimants’ feelings about it were not unreasonable.
view,
but Instagram posts commented on the fact that one could see right into the flats and he concluded that this supported the claimants’ case that part of the interest on the part of at least some of the people posting this material was in the
view
of the interiors of the flats and that there was a significant discrete interest in what one can see by looking into the flats. This finding is not surprising. As Mann J observed later in this judgment, a major part of what attracts the eye of the external
viewer
is the clear and uninterrupted
view
of how the claimants seek to conduct their lives in the flats. It is human nature that some people will display this sort of interest.
view
from outside; and (iii) installing net curtains (ie of a kind one frequently finds in hotels with large floor-to-ceiling windows) or using other forms of screening.
viewing
gallery in some form, although its precise extent
varied
through successive iterations of the design. Planning policy for the South Bank encourages the construction of
viewing
galleries in buildings of significant height. However, there is no planning document which indicates that overlooking by the
viewing
gallery in the direction of Block C was considered by the local planning authority at any stage. It is not likely that the planning authority considered the extent of overlooking. Further, while the Neo Bankside developer was aware of the plans for a
viewing
gallery, it did not foresee the level of intrusion which resulted. In broad terms, the design and construction of the Blavatnik Building with the
viewing
gallery in its final form took place in parallel with the design and construction of Neo Bankside, without the effects of the one on the other so far as
visual
intrusion was concerned being fully appreciated or addressed.
The proceedings below
Tate
to prevent members of the public or any other licensees from observing the claimants' flats from the whole of the southern walkway of the
viewing
gallery, fronting directly onto the flats, and also the southern half of the western walkway. The claimants maintained that the
Tate’s
use of those parts of the
viewing
gallery unreasonably interfered with the claimants' enjoyment of their flats so as to be a nuisance. They also alleged that the
Tate
was a public authority for the purposes of section 6 of the Human Rights Act 1998 (“the HRA”) and that its use of the
viewing
gallery infringed their rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the ECHR") (right to respect for private and family life and the home).
Tate
does not exercise functions of a public nature and is not a public authority within the meaning of the HRA. The claimants were not given permission to appeal to the Court of Appeal on that point. This court is only concerned with the claim based on the tort of private nuisance. However, the claimants seek to rely on article 8 of the ECHR for support for their claim in tort.
view,
been removed by article 8 and the HRA. However, he held the
Tate
was not liable in nuisance in the circumstances of this case (and, for the purposes of article 8, the claimants had no reasonable expectation of privacy) because, in operating the
viewing
gallery as it does, it is not making unreasonable use of its land, bearing in mind the nature of the use, the locality in which it takes place, and that a landowner, like the claimants, is expected to have to put up with some “give and take” in the use of land appropriate to modern society and the particular locale. The developers of Neo Bankside, in building the flats with glass walls for the living accommodation, and the claimants as successors in title, who chose to buy the flats, had created or submitted themselves to sensitivity to privacy. The claimants had exacerbated this effect by moving part of their living accommodation into the winter gardens.
view,
the fact that the architectural style means that there is increased exposure to the outside world should not be taken to alter the balance between the competing interests of neighbouring landowners which would otherwise exist if, for example, Neo Bankside had comprised flats in the same location with a more conventional design involving solid walls with windows. In such a case, the
Tate’s
use of the
viewing
gallery would not have constituted a nuisance. The availability of remedial measures to the owners of flats in Neo Bankside was also relevant to how the balance should be struck. Mann J made his assessment on the basis of the use to which the
Tate
was actually putting the
viewing
gallery, with the reduced opening times, the posting of notices and the instructions to security personnel which were in place. The
Tate
gave an undertaking to continue those protective measures.
view,
the tort of nuisance could not provide a remedy for “mere overlooking”. The weight of authority was contrary to the idea that mere overlooking can give rise to a cause of action in nuisance and there were policy reasons against extending it to cover such a case. Unlike in relation to such annoyances as noise, dirt, fumes, noxious smells and
vibrations
(all of which may give rise to a cause of action in nuisance), it would be difficult to apply an objective test to determine whether there had been a material interference with the amenity
value
of the affected land; there were other ways of protecting owners of land from overlooking, in particular through planning controls; and the real point at issue is invasion of privacy rather than damage to an interest in property (which is the focus of the law of nuisance), and there are already other laws which deal with invasions of privacy and, insofar as these might require supplementation, that is a matter for the legislature rather than something to be addressed by the extension of the common law tort of nuisance. There was no infringement of article 8 rights which might support the extension of the tort and the judge had been wrong to rely on article 8 in support of his conclusions. Since, on the court’s
view,
there was no scope for application of the tort, there was no basis on which the
Tate
could be expected or required to give undertakings as to its use of the
viewing
gallery, so the undertaking given to Mann J to limit the opening hours of the
viewing
gallery was discharged.
visual
surveillance), the court did not consider that the judge was correct in his conclusion on the balance to be struck. In the
view
of the Court of Appeal, the judge had erred by approaching the question whether the tort was made out by asking whether the
Tate’s
use of the
viewing
gallery was reasonable and by reliance on the factors of self-induced sensitivity and the availability to the claimants of the remedial steps he identified.
The appeal to this court
Issue (1): The ambit of the tort of private nuisance: can
visual
intrusion be a nuisance?
Tate
conceded that deliberate overlooking, if accompanied by malice, could give rise to a nuisance. Mann J held that, even without the HRA, the tort of nuisance would in principle have been capable of protecting privacy rights in the home and that any doubt on that score had been removed by article 8 and the HRA. When the claimants appealed, the
Tate
did not seek to challenge that ruling by way of a respondent’s notice. However, shortly before the hearing in the Court of Appeal the court requested submissions on the issue of principle of whether the tort extends to cases of “overlooking” (ie
visual
intrusion). Accordingly, the parties presented arguments on this point, with the
Tate
contending that it did not and the claimants maintaining that it did.
violation
of rights pertaining to real property. It involves either an interference with the legal rights of an owner or a person with exclusive possession of land, including an interest in land such as an easement or a profit à prendre, or interference with the amenity of the land, ie the right to use and enjoy it, which is an inherent facet of a right of exclusive possession: Hunter
v
Canary Wharf Ltd [1997] AC 655 (“Hunter”), 687G-688E (Lord Goff of Chieveley, citing FH Newark, “The Boundaries of Nuisance” (1949) 65 LQR 480, 482: it is a tort “directed against the plaintiff’s enjoyment of rights over land”), 696B (Lord Lloyd of Berwick), 702G-H, 706B and 707C (Lord Hoffmann) and 723D-F and 724D (Lord Hope of Craighead: the tort is concerned with cases where the claimant has a right to the land and there is “an unlawful interference with his use or enjoyment of the land or of his right over or in connection with it”).
The principle of reasonableness between neighbours
v
Eastern Counties Leather plc [1994] 2 AC 264 (“Cambridge Water”), 299 per Lord Goff, with whom the other members of the Appellate Committee agreed: “although liability for nuisance has generally been regarded as strict, at least in the case of a defendant who has been responsible for the creation of a nuisance, even so that liability has been kept under control by the principle of reasonable user - the principle of give and take as between neighbouring occupiers of land, under which ‘those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action’ [citing the judgment of Bramwell B in Bamford
v
Turnley (1862) 3 B & S 66, 83: see below]. The effect is that, if the user is reasonable, the defendant will not be liable for consequent harm to his neighbour’s enjoyment of his land …”. An issue on this appeal is the relationship between the general principle of reasonable user stated by Lord Goff and questions relating to “the common and ordinary use and occupation of land”, in Bramwell B’s language.
v
Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822 (“Lawrence”) Lord Neuberger (giving the leading judgment, with which the other members of the court expressed broad agreement) endorsed the principle of reasonable user set out by Lord Goff in Cambridge Water: paras 5 and 55. At para 179, Lord Carnwath referred to Lord Goff’s principle of reasonable user and quoted with approval, as he had done in his previous judgment in the Court of Appeal in Barr
v
Biffa Waste Services Ltd [2012] EWCA Civ 312; [2013] QB 455 (“Biffa Waste”), at para 72, the following passage from Tony Weir, An Introduction to the Tort Law, 2nd ed (2006), p 160:
“Reasonableness is a relevant consideration here, but the question is neither what is reasonable in the eyes of the defendant or even the claimant (for one cannot by being unduly sensitive, constrain one’s neighbour’s freedoms), but what objectively a normal person would find it reasonable to have to put up with.”
Lord Neuberger (para 5) agreed that reasonableness in this context is to be assessed objectively. It is a corollary of the objective nature of the test, and the focus of the tort on property rights, that it is not a defence to say that the claimant has “come to the nuisance” (ie acquired property knowing that a neighbour was already carrying on some activity to which objection is later taken): Lawrence, paras 47-52 and 58 (Lord Neuberger).
v
Turnley and St Helen’s Smelting Co
v
Tipping (1865) 11 HL Cas 642 (“St Helen’s Smelting Co”). In those cases the courts identified the principles of law which balanced the desirability of productive development of land against protection for neighbouring landowners with regard to the use of their own land.
v
Turnley the claimant alleged that the defendant was liable for nuisance for burning bricks on the defendant’s land with a
view
to using them to construct a house on the land, which resulted in a bad smell affecting the amenity associated with occupation of the plaintiff’s land. The jury found for the defendant. On appeal, the lawfulness of the direction to the jury was in issue, by which they had been told to find for the defendant if they thought that the place where the bricks were burned was a proper and convenient spot and the burning of them was, under the circumstances, a reasonable use by the defendant of his own land. By a majority (Pollock CB dissenting), the Exchequer Chamber held that this was a misdirection. The principal judgment for the majority was that of Erle CJ, Wilde B and Williams and Keating JJ. They held that it was not a defence merely to say that the defendant’s use of his own land had been reasonable. As counsel for the claimant put it (p 67), the only question was “whether there is a real substantial injury to the [claimant], he being supposed to be of ordinary character and nerves, and with reference to the state of the neighbourhood”, which was residential rather than industrial.
v
Tanner [2001] 1 AC 1 (“Southwark”), 15-16 and 20. Bramwell B observed (p 82), “[t]he defendant has done that which, if done wantonly or maliciously, would be actionable as being a nuisance to the [claimant’s] habitation by causing a sensible diminution of the comfortable enjoyment of it.” The fact that the defendant’s use of his own land was reasonable, taken by itself, was not a defence. His justification for his action (“that the nuisance is not to the health of the inhabitants of the [claimant]’s house, that it is of a temporary character, and is necessary for the beneficial use of his, the defendant’s, land, and that the public good requires he should be entitled to do what he claims to do [ie to make productive use of his own land by building a house on it]”: p 82) was no answer. Bramwell B identified the relevant principle as follows (pp 83-84):
“those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action. This principle … would not comprehend the present [case], where what has been done was not the using of land in a common and ordinary way, but in an exceptional manner - not unnatural nor unusual, but not the common and ordinary use of land. There is an obvious necessity for such a principle as I have mentioned. It is as much for the advantage of one owner as of another; for the
very
nuisance the one complains of, as the result of the ordinary use of his neighbour’s land, he himself will create in the ordinary use of his own, and the reciprocal nuisances are of a comparatively trifling character. The convenience of such a rule may be indicated by calling it a rule of give and take, live and let live.”
This is a principle of reasonable reciprocity and compromise which I consider is highly relevant in the present case.
“that anything which, under any circumstances, lessens the comfort or endangers the health or safety of a neighbour, must necessarily be an actionable nuisance. That may be a nuisance in Grosvenor Square which would be none in Smithfield Market, that may be a nuisance at midday which would not be so at midnight, that may be a nuisance which is permanent and continual which would be no nuisance if temporary or occasional only. A clock striking the hour, or a bell ringing for some domestic purpose, may be a nuisance, if unreasonably loud and discordant, of which the jury alone must judge; but although not unreasonably loud, if the owner, from some whim or caprice, made the clock strike the hour every ten minutes, or the bell ring continually, I think a jury would be justified in considering it to be a
very
great nuisance. In general, a kitchen chimney, suitable to the establishment to which it belonged, could not be deemed a nuisance, but if built in an inconvenient place or manner, on purpose to annoy the neighbours, it might, I think,
very
properly be treated as one”;
and he referred to “[t]he compromises that belong to social life …”.
(Cf Sturges
v
Bridgman (1879) 11 Ch D 852, 865, per Thesiger LJ, emphasising the importance of the norms of behaviour in the particular locality: “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”; quoted in Lawrence, para 4, per Lord Neuberger).
view,
the direction to the jury and its finding should have been interpreted. The difference between Pollock CB and the majority depended on whether one interpreted the direction as referring to reasonable use of the defendant’s land, looked at solely from his point of
view
(which all agreed was incorrect), or to reasonable use of the defendant’s land, taking account of the interests of both the claimant and the defendant. In this way, in my
view,
Pollock CB, like Bramwell B, also emphasised that the underlying principle was one of overall reasonableness, involving reciprocity and compromise, taking account of the competing interests of both landowners. This
view
has persisted since then. In a note in (1937) 53 LQR 3, Professor Goodhart said that the governing principle is one of reasonableness in which “what is reasonable depends both upon [the defendant’s] circumstances and on those of his neighbour”. I will return to this when I deal with the second issue, below.
view
of the submissions made by Mr Weekes, it is important to emphasise this difference between the principle of reasonable user as set out by Lord Goff in Cambridge Water and explained by Lord Neuberger in Lawrence and the distinct idea of reasonable use which the defendant sought to invoke in Bamford
v
Turnley, which was disapproved by the court in that case. As Lord Millett was careful to explain in Southwark, p 20, in discussing complaints of nuisance in relation to noisy activities in adjoining flats:
“The use of the word ‘reasonable’ in this context is apt to be misunderstood. It is no answer to an action for nuisance to say that the defendant is only making reasonable use of his land … What is reasonable from the point of
view
of one party may be completely unreasonable from the point of
view
of the other. It is not enough for a landowner to act reasonably in his own interest. He must also be considerate of the interest of his neighbour. The governing principle is good neighbourliness, and this involves reciprocity. A landowner must show the same consideration for his neighbour as he would expect his neighbour to show for him.”
Carnwath LJ (as he then was) likewise emphasised the importance of this distinction between these different concepts of reasonableness in Biffa Waste, at paras 60-72. At para 69 he cited the passage from Lord Millett’s speech in Southwark and at para 72 he said that the matter was set out “simply and accurately by Tony Weir” in the statement quoted above (para 159). Liability turns on the issue of reasonableness as between the two parties located in a particular locality, not on the reasonableness of the defendant’s use in the abstract.
“My Lords, in matters of this description it appears to me that it is a
very
desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unquestionably arises a
very
different consideration. I think, my Lords, that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply to circumstances the immediate result of which is sensible injury to the
value
of the property.”
v
Seale [1975] 1 WLR 797, which concerned a nuisance arising from smells from a pig farm, Lord Hoffmann observed “the
value
of the right to occupy a house which smells of pigs must be less than the
value
of the occupation of an equivalent house which does not”; in the case of a transitory nuisance, “the owner or occupier is entitled to compensation for the diminution in the amenity
value
of the property during the period for which the nuisance persisted”; as he said, “the injury to the amenity of the land consists in the fact that the persons upon it are liable to suffer inconvenience, annoyance or illness”(p 706).
The wide ambit of private nuisance
v
Turnley onwards to explain the ambit of the tort are relevant. Bramwell B referred to “a nuisance to the [claimant]’s habitation by causing a sensible diminution of the comfortable enjoyment of it”. According to that formulation, there is no reason to say that
visual
intrusion which, at a certain level of intensity, may indeed cause a sensible diminution of the comfortable enjoyment of one’s home should fall outside the scope of the tort. Similarly, Pollock CB took the tort to be concerned with, among others, things which “[lessen] the comfort … of a neighbour”, and again there is no good reason to think that this would not cover
visual
intrusion. Lord Westbury in St Helen’s Smelting Co referred to matters producing “sensible personal discomfort”, and the same point applies.
v
Wilkins [1899] 1 Ch 255, CA. That case concerned the picketing (or, as it was called, watching and besetting) by union members of premises used by the claimants for the production of leather goods, in the course of a strike, with a
view
to dissuading workers from going in and persuading the claimants to change their mode of business. No
violence,
intimidation or threats were used. The claimants applied for and obtained injunctive relief at first instance and this was upheld on appeal. The case turned on the construction of a statutory provision which made it an offence to watch or beset the house or other place where a person resided or worked with a
view
to compelling him, “wrongfully and without legal authority”, to do or abstain from doing something. Lindley MR held (pp 267-268) that what had been done fell within the scope of the provision because to watch or beset a man’s house without some reasonable justification is a nuisance at common law, since “[s]uch conduct seriously interferes with the ordinary comfort of human existence and ordinary enjoyment of the house beset”. In support of this
view
he cited Bamford
v
Turnley; Walter
v
Selfe (1851) 4 De G & Sm 315, concerning smoke and smells, in which Knight-Bruce
V-C
found a nuisance because the defendant’s activities would “diminish seriously and materially the ordinary comfort of existence to the occupier [of the claimant’s dwelling house]” (p 323); Crump
v
Lambert (1867) LR 3 Eq 409, concerning smoke, smells and noise, in which Lord Romilly MR (pp 413-414) took the principle established by St Helen’s Smelting Co to be “whether the annoyance is such as materially to interfere with the ordinary comfort of human existence”; and Broder
v
Saillard (1876) 2 Ch D 692, a noise case, in which Jessel MR stated the principle (p 701) to be that “a man is entitled to the comfortable enjoyment of his dwelling house”.
Vaughan
Williams LJ did not consider that a nuisance was made out on the facts, but accepted (pp 273-274) that in principle watching and besetting could be carried on in such a way as to amount to a nuisance.
v
Pitt [1976] QB 142 the majority in the Court of Appeal (Stamp and Orr LLJ) relied on Lyons & Sons
v
Wilkins as authority for the proposition that picketing a property could constitute a nuisance.
visual
intrusion at the level which has occurred in this case. Also, the rationale given for the tort, which underlies these formulations, is capable of covering the present case.
visual
intrusion experienced by the claimants in this case as a serious interference with their ability to enjoy their property as a domestic habitation. Anyone would be likely to regard living their lives within their own home under the gaze of a multitude of strangers as having a highly inhibiting and unpleasant effect. An important aspect of the enjoyment of the rights of property in one’s own home is that one can live there with a reasonable degree of privacy and without intrusion by others, hence the well-known saying that a person’s home is their castle. Over the years there have been a number of judicial statements which acknowledge this dimension of the enjoyment of a residential property. The judge cited Semayne’s Case (1604) 5 Co Rep 91a, 91b; Morris
v
Beardmore [1981] AC 446, 465; and the (dissenting) judgment of Thomas J in Brooker
v
Police [2007] 3 NZLR 91, paras 256-258. It would be odd to single out this aspect of enjoyment of the rights of property in one’s own home as not deserving protection under the tort, when other aspects of such enjoyment which are protected (such as not to be subjected to unreasonable noise, smells, dust or
vibrations)
might often be less disturbing as interferences with that enjoyment.
v
Wilkins was not a case of
visual
intrusion as such, the decision shows that the tort is not tied to things which involve some physical intrusion upon the claimant’s land. Further examples which establish the same point are Thompson-Schwab
v
Costaki [1956] 1 WLR 335 and Bank of New Zealand
v
Greenwood [1984] 1 NZLR 525. In Thompson-Schwab the sight of prostitutes and their clients entering neighbouring premises was held to constitute a nuisance. In Bank of New Zealand
v
Greenwood a nuisance was found where the glass roof of a
verandah
on a building was so positioned as to direct an intense and dazzling glare into the claimant’s property which was too bright for the human eye to bear.
vibrations”.
Mr Fetherstonhaugh KC for the
Tate
submits that such a formulation is not apt to cover the
visual
intrusion into the claimants’ flats which occurs in this case. However, it is clear that Lord Goff was not laying down a requirement that there be emanations as an inflexible rule of law. He pointed out that sometimes an activity on a neighbour’s land may be so offensive to neighbours as to constitute a nuisance without the element of invasion by emanation, citing Thompson-Schwab and Bank of New Zealand
v
Greenwood.
view,
intense
visual
intrusion into someone’s domestic property is capable of amounting to a nuisance. The use of the
viewing
gallery as a site for
viewing
the area to the south of
Tate
Modern, in a way which allows and encourages an unusually intrusive degree of
visual
overlooking of the claimants’ flats by large numbers of people, falls within that category of case.
Authority on
visual
intrusion as a nuisance
vain
for legal protection against ‘the annoyance and indignity’ to which he was thus subjected”. Professor Winfield expressed the
view
that a claim in nuisance should have been available, because such conduct “seriously interferes with the ordinary comfort of human existence and the ordinary enjoyment of the house [so beset]”. It is, I think, significant that this was the
view
of one of the leading authorities on the law of tort. Professor Winfield referred to Lyons & Sons
v
Wilkins as authority which supported his
view,
as indeed I think it does.
visual
intrusion are capable of constituting a nuisance.
Victoria
Park Racing and Recreation Grounds Co Ltd
v
Taylor (1937) 58 CLR 479 (“
Victoria
Park Racing”) the owners of a racecourse brought an action in nuisance against defendants who had erected a tall platform on adjoining land from which to look over fences erected around the course so as to watch races and make broadcasts commenting on them. The racecourse owners complained that the broadcasts meant that fewer paying customers came to watch the races. By a majority, the High Court of Australia dismissed the claim on the basis that the defendants had not interfered with the claimants’ land or the enjoyment thereof.
view,
visual
intrusion was capable of constituting a nuisance and did so in the case at hand. In the majority, Latham CJ and Dixon J relied on Tapling
v
Jones (1865) 20 CB (NS) 166; 11 HL Cas 290 and other cases concerned with construction of windows overlooking neighbouring property (referred to as “opening windows”), which I discuss below, to conclude that the natural rights attaching to land do not include freedom from inspection from neighbouring occupiers. Latham CJ stated (p 494) “[a]ny person is entitled to look over the [claimant’s] fences and to see what goes on in the [claimant’s] land. If the [claimant] desires to prevent this, the [claimant] can erect a higher fence” and take other measures of self-help to protect its privacy. Dixon J likewise referred (p 508) to a statement by Lord Chelmsford in Tapling
v
Jones that a claimant in this sort of case is left “to his self-defence against an annoyance of this description”, by erecting barriers to protect himself from
view.
v
Jones, noting that the claimant implicitly accepted that the defendants were entitled to build on their land as they pleased and then
view
out from the platform, but adopted an intermediate position. He emphasised that the claimant only sought relief to restrain broadcasting of commentary on the races rather than removal of the platform. However, as he observed (pp 523-524), it had not been shown “that the broadcasting interferes with the use and enjoyment of the land or the conduct of the race meetings or the comfort or enjoyment of any of the [claimant’s] patrons … ”; it was conceivable that it might in a suitable case be an adjunct to the actionable nuisance of watching and besetting premises discussed in Lyons & Sons
v
Wilkins, as the list of actions which might constitute nuisance was not closed, but it could not be an actionable nuisance “at least unless it causes substantial interference with the use and enjoyment of the premises”. This approach allows for the possibility, in principle, that
visual
intrusion could constitute a nuisance if it causes substantial interference with the use and enjoyment of the claimant’s land. This was not a case concerned with
visual
intrusion into a residential property. For the reasons set out above, such intrusion may be capable of causing substantial interference with the use and enjoyment of such property.
v
Hughes (1995) 7 BPR 14,837 the defendants installed on their property some floodlights and surveillance cameras set up in such a way as to illuminate the claimant’s backyard and record on
videotape
what happened there. The first instance court in New South Wales held that, by analogy with watching and besetting cases like Lyons & Sons
v
Wilkins, the deliberate attempt to snoop on the privacy of a neighbour and record their actions on
videotape
was an actionable nuisance.
visual
intrusion is capable of amounting to a nuisance. In Wasserman
v
Hall (2009) BCSC 1318 a nuisance was found to be made out where, living in a rural area, the claimants were subject to permanent surveillance from security cameras installed by the defendant which were trained on their property. The judge held that this was intolerable in the circumstances and amounted to unreasonable and substantial interference with the use and enjoyment of their property. In Suzuki
v
Munroe (2009) BCSC 1403 the court held there was a nuisance arising from the installation by the defendant of a surveillance camera permanently trained on the front yard, driveway and entrance to the claimants’ home. Continuous observation by a surveillance camera in the circumstances was “an intolerable interference with the use and enjoyment of the neighbouring property” (para 99).
v
Lavigne (2011) BCCA 104 the Court of Appeal for British Columbia implicitly accepted that
visual
intrusion into a residential property might amount to a nuisance, but dismissed an appeal against the finding of the trial judge that the intrusion complained of (namely that the defendant had regularly stared into the claimants’ flat, which had floor-to-ceiling windows looking out onto a public footpath where the defendant would walk) was not sufficiently substantial or serious to be actionable. In relation to his submissions on the second issue in this appeal, Mr Fetherstonhaugh called attention to the comment by Smith J, giving the leading judgment, that if the claimants were home when this occurred, “one must wonder why they did not simply turn away … or close their window coverings, or simply ignore him” (para 29).
v
Skyviews & General Ltd [1978] QB 479 also illustrates the strong instinctive reaction of a common lawyer on the question whether
visual
intrusion of an extreme kind could constitute the tort of nuisance. The case concerned the taking of a photograph of the claimant’s home from the air. The claimant objected to this and sued in trespass, not nuisance. The judge observed that the reason for this was that the taking of a single photograph could not be an actionable nuisance. However, he also observed (p 489G) that if a claimant “was subjected to the harassment of constant surveillance of his house from the air, accompanied by the photographing of his every activity”, he was “far from saying that the court would not regard such a monstrous invasion of his privacy as an actionable nuisance for which they would give relief.”
Cases on the opening of windows
v
Jones, supported their conclusion that the law of nuisance cannot, in principle, extend to protection against
visual
intrusion or being overlooked from another property. In my
view,
however, they do not have that effect.
v
Jones the relevant prescription period was 20 years. The House of Lords held that the only way in which the neighbour could prevent such a right arising is by building on his own property to block the light.
“That is not treated by the law as a wrong for which any remedy is given. If A is the owner of beautiful gardens and pleasure-grounds, and B is the owner of an adjoining piece of land, B may build on it a manufactory with a hundred windows overlooking the pleasure-grounds, and A has neither more nor less than the right which he previously had, of erecting on his land a building of such height and extent as will shut out the windows of the newly-erected manufactory [ie to prevent B from acquiring an easement of light by prescription]…”
(See also p 185, per Lord Cranworth, and pp 191-192 and 196 per Lord Chelmsford).
view,
this observation and those of Lord Cranworth and Lord Chelmsford were not at all directed to the operation of the law of nuisance. Lord Westbury’s statement was aimed at clearing the ground for a discussion of the law of prescription in relation to easements of light. Kindersley
V-C
made a similar remark in Turner
v
Spooner (1861) 30 LJ (Ch) 801, another opening windows case. Referring to the question of privacy, he said (p 803) that “no doubt the owner of a house would prefer that a neighbour should not have the right of looking into his windows or yard, but neither this Court nor a Court of law will interfere on the mere ground of invasion of privacy; and a party has a right even to open new windows, although he is thereby enabled to overlook his neighbour’s premises, and so interfering, perhaps with his comfort.” But again he was not seeking to make any statement about the operation of the law of nuisance. The same is true of another similar statement in an opening windows case on which Mr Fetherstonhaugh sought to rely: Chandler
v
Thompson (1811) 3 Camp 80, 81-82.
v
Jones to the possibility of self-help by the person who does not wish to be overlooked has some relevance to the discussion of the second issue, below. That possibility made it acceptable that the law should not prevent a landowner (B) from building what he liked on his own land. A rough balance between the interests of a landowner to make use of his own land and of a neighbour to enjoy his land was therefore achieved in this way. The same comment applies in relation to the discussion of Tapling
v
Jones by the majority in
Victoria
Park Racing, in the context of the law of nuisance.
view,
once it is recognised that the law of nuisance operates in a more nuanced way in relation to
visual
intrusion than was discussed in Tapling
v
Jones, and it is accepted that this may afford a neighbour the opportunity of going to law to seek relief to prevent the landowner from using his land as he wishes, the question whether there are adequate means of self-help available to the neighbour becomes of still greater importance. If there are reasonable and adequate means of self-help, the use of the law of nuisance to prevent development of the landowner’s land becomes more difficult to justify. As Latham CJ put it in
Victoria
Park Racing, p 494, “the law cannot by an injunction in effect erect fences which the plaintiff is not prepared to provide”. It seems to me that the principle of reasonable reciprocity and compromise which the law has adopted as the mechanism to balance the competing interests of neighbouring landowners has to take account of reasonable measures of self-protection which may be available.
Historical, legal and policy considerations
view
that
visual
intrusion cannot, as a matter of principle, found a claim in nuisance. With respect, I do not find these persuasive.
view),
is “mirrored by the absence of a right to prevent looking into a residence” (para 75). The reasons given for the former position, and in particular for a general rule that no right to a prospect could be acquired by prescription, in terms of a concern that such a right would constrain building in towns and cities (see Attorney General
v
Doughty (1752) 2
Ves
Sen 453, 453-454; Dalton
v
Henry Angus & Co (1881) 6 App Cas 740, 824; Hunter, p 699F per Lord Lloyd), also applied to limit the ambit of the law of nuisance in relation to
visual
intrusion from neighbours. They said (para 78), “[i]t is logical that the same policy consideration underlies … the absence of any successful claim for overlooking, despite the
very
long history of a cause of action for nuisance” and also the opening windows cases; cheek-by-jowl living in cities meant that overlooking was commonplace and indeed inevitable through the period when the great cities were being constructed.
visual
intrusion must be tolerated, no matter how oppressive and how destructive it might be of the ordinary amenity to be expected in relation to a residential property. If the relevant bar for application of the tort is set high, as it must be for something as normal and inevitable as the possibility of people being able to look into a property through a window or across a fence, then there is no reason to think it will unduly constrain urban development or would have done so in the past.
visual
intrusion, just as it does for other forms of intrusion such as by sound, smell or
vibration.
By contrast, where an easement exists it is an absolute property right, which is not subject to such a principle. This means that acquisition of a right to a prospect as an easement would be far more damaging in relation to, and indeed destructive of, rights to build on land and a far greater threat to the development of towns and cities than the law of nuisance ever could be. In my
view,
the equation by the Court of Appeal of the policy arguments against recognition of these
very
different sorts of rights cannot be sustained.
very
tall building which interfered with reception of television broadcasts in the claimants’ homes did not give rise to a cause of action because of the general principle that at common law anyone may build as they like upon their land. It is certainly right that not every annoyance will fall within the scope of the law of nuisance and the general principle referred to is indeed important. But it is subject to limits set by the general law of nuisance. Nothing said in Hunter indicates that the tort of nuisance is incapable of application in relation to extreme forms of
visual
intrusion which are destructive of the usual enjoyment of rights in relation to a residential property.
vibrations
emanating from neighbouring land, it would be difficult, in the case of overlooking, to apply the objective test in nuisance for determining whether there has been a material interference with the amenity
value
of the affected land”; and “[i]t is difficult to envisage any clear legal guidance as to where the line would be drawn between what is legal and what is not, depending on the number of people and frequency of overlooking”. However, the absence of clear legal guidance of the kind referred to by the Court of Appeal is a general feature of the law of nuisance, as much in relation to noise, smells and the like as in relation to
visual
intrusion. In none of these areas does the law lay down a clear bright-line rule, but instead applies a standard of reasonableness according to the principle of “give and take”, having regard to the character of the neighbourhood and other relevant features of the particular case. That is why the courts have emphasised since
Victorian
times that the question whether an actionable nuisance has occurred is one for the jury or the judge as the trier of fact. There is no significant difference in the question posed in a
visual
intrusion case, according to the principle of “give and take”, and in the manner in which it has to be addressed by a court, than in relation to the other forms of intrusion destructive of the amenity of property referred to by the Court of Appeal.
view,
recognition that the law of nuisance extends in an appropriate case to a right to be protected against intense
visual
intrusion does not represent an enlargement of the tort, but only an acceptance that this falls within the formulation and rationale of the well-established legal rule which governs in this area (see para 175 above). Further, the “give and take” principle incorporates an appropriate degree of flexibility to adjust the operation of property rights between neighbouring landowners to take account of the competing interests at stake in a manner which is carefully tailored to the particular case.
view
or flow of air, which are interests which the law of nuisance does not protect. It was against the background of that analysis that Lord Hoffmann made the comments about enlargement of the tort on which the Court of Appeal fastened.
view
that
visual
intrusion is incapable of providing the basis of a claim in nuisance, the
Tate
would be entitled to cease to apply the restrictions and safeguards it has put in place up to now to protect the claimants’ amenity in their flats to some degree. But those are matters of good neighbourliness for which in the circumstances of this case, in my
view,
there should be scope for provision to be made. Again, the conclusion is that it is the principle of reasonable “give and take” which provides the better mechanism to reconcile the competing property interests in issue, rather than ruling that there can in principle be no claim in private nuisance in a case such as this.
Article 8 of the ECHR
view,
the basic concepts of the English law of nuisance are already adapted to cover the circumstances of the present case and reference to article 8 is unnecessary and unhelpful. The claimants do not need to rely upon article 8 to make good their case on the first issue in this appeal.
visual
intrusion and his decision regarding the fair balance to be struck between the parties’ property rights according to the “give and take” principle without relying on article 8 or an analysis of the operation of the rights under article 8.
Tate
(as opposed to the individuals who make use of the
viewing
platform and actually look into the claimants’ flats) is properly to be regarded as the relevant party which engages in intrusion into the home or the privacy of the claimants for the purposes of analysis under article 8. But it is not necessary to lengthen this judgment by exploring any of these issues.
Issue (2): Was there a nuisance in this case? Application of the principle of reasonable reciprocity and compromise (“give and take”)
Introduction
Victorian
cases, the principle applied was expressed in the Latin maxim “sic utere tuo ut alienum non laedas” (use your own property in such a way as not to injure another’s property), which sought to capture the same idea as the expression “give and take”. The maxim was criticised by Lord Wright in Sedleigh-Denfield
v
O’Callaghan [1940] AC 880 (“Sedleigh-Denfield”), 903, as lacking in precision. As he pointed out, “[a]n occupier may make in many ways a use of his land which causes damage to the neighbouring landowners and yet be free from liability”. However, both formulas provide a useful reminder that the aim of the tort of nuisance is that the freedom of neighbouring landowners regarding the use of their property should be maximised in a symmetrical way, so far as possible. An occupier is not confined to using their property in a way which matches the ways in which neighbours use theirs. Rather, as Lord Wright put it “[a] balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with.”
v
Turnley, “liability for nuisance is ‘kept under control by the principle of reasonable user - the principle of give and take as between neighbouring occupiers of land …’”. Reasonable user means reasonable having regard to the rights and interests of both neighbours, so that a fair balance is maintained between them, judged in the context of the character of the particular neighbourhood where they are located.
visual
intrusion or overlooking. Many types of nuisance, such as those to do with smell,
vibration
and noise, naturally tend to occur over relatively short distances. But lines of sight may be open across considerable distances, and where a landowner can look out from their property then others can look in. Particularly in an urban environment, a degree of overlooking and
visual
intrusion is inevitable.
visual
intrusion, to stymie development and interfere unduly with the property rights of other landowners if not kept within careful bounds is not misplaced. If the tort is not restricted in its effect at the stage of issue (1) (contrary to the
view
of the Court of Appeal), it falls to the application of the principle of “give and take” to ensure that the tort does not have an excessive impact on the ordinary property rights of other landowners.
visual
intrusion. The “ordinary usages of mankind” living in a city include employing a degree of self-help to protect oneself against
visual
intrusion by neighbours, by using curtains, blinds and the like. Further, in the opening windows cases the courts were careful to explain that the potential for a property-owner to acquire rights to light as an easement by prescription was balanced by the ability of a neighbour to protect themselves by building on their own property. The judges in the majority in
Victoria
Park Racing also emphasised the measures available to the claimants to engage in self-help to protect their interests. Latham CJ made the telling observation (para 194 above) to the effect that they should not rely upon the court to supply by injunction what they could have achieved by reasonable measures of self-help for themselves. In Martin
v
Lavigne Smith J made a similar point in the context of another claim framed in nuisance (para 187 above).
view,
this includes being willing to live with what may be a new and unusual use of a neighbour’s land, if it is in accordance with the objective principle of reasonable use, in order to accommodate the same interest in free development of land which both landowners have. Since that is so, if the claimant is able to take measures reasonably available to them and consistent with the ordinary habits of life which a reasonable person could be expected to adopt, which would allow for accommodation of reasonable use of land by a neighbour, that is in my
view
a relevant factor which can and should be taken into account. But in deciding whether possible self-help measures should be brought into account in deciding whether an actionable nuisance exists, a great deal will depend on the nature of the nuisance alleged. Potential exposure to
visual
intrusion is an inevitable feature of urban living and it is usual for people to use screening measures of one sort or another to protect themselves to some degree.
Tate
to reduce the impact of the
viewing
platform on the claimants’ properties by closing it at certain times, putting up notices and so forth. In each case some action may be required by the party which is in a position to take it so as to reduce the friction created by their desire to enjoy the amenity of their own property and to exercise their right to use their land as they wish. A court can impose an appropriate standard of behaviour on a defendant by requiring an undertaking to be given or issuing an injunction. Conversely, it can in effect require an appropriate standard of behaviour from a claimant by refusing to grant relief in circumstances where it thinks that relevant self-help measures are available, in the light of which it would be unreasonable to prevent the defendant from using its land in the manner complained of. This is simply an effect of the basic point made in para 209 above.
v
Saillard (above) the defendant constructed stables against the wall of a neighbouring residential property. The noise from the stables kept the neighbours awake at night. Jessel MR accepted that the defendant’s use of his property was reasonable from his own point of
view
but held that a nuisance was made out because, given the residential nature of the neighbourhood, he had chosen to locate the stables in a position which was not proper for the keeping of horses (p 701). The defendant’s action, albeit reasonable as judged from his perspective, had not taken sufficiently into account the interest of the neighbours in being able to enjoy their own property in a way which was in keeping with the uses of land in that area. So, in the present case, the construction and use of the flats as the claimants wish, without having to resort to screening measures, can readily be seen to be reasonable as judged from their perspective. The Court of Appeal emphasised this point. But the flats were constructed to an open design which was unusual for the area and in my
view
the judge was entitled to take this into account in applying the different reasonableness test implicit in the “give and take” principle when assessing whether the use of their land meant that the law should give a remedy to prevent the
Tate
from using its land as it wished. The
Tate’s
operation of the
viewing
gallery was reasonable as judged from its own perspective and was also reasonable as judged by the standards to be expected in the area where both properties were located.
Tate
had not constructed its
viewing
gallery before the Neo Bankside development took place. The development of Neo Bankside and the development of the
Tate
extension took place at the same time. However, assessed in terms of the established character of the neighbourhood at the time both developments took place, in which tower blocks had ordinary windows for looking in and out, Mann J found that the construction and use of the
viewing
gallery would not have been a nuisance in relation to any residential block of ordinary construction for the area. Thus it can be said, in line with Lord Neuberger’s observations in Lawrence, that the building by the owners of Neo Bankside on their land to change its use to residential tower blocks with a degree of openness in terms of floor-to-ceiling windows unusual for the area should not be taken to have the effect of turning the
Tate’s
unexceptionable use of its land into a nuisance.
v
Kilvert (1889) 41 Ch D 88. In that case, heat emanating from the defendant’s property had a detrimental effect on paper being produced on neighbouring land by the claimant, but only because of the unusual degree of sensitivity of the claimant’s paper. It would not have affected the production of normal paper. The judge quoted this statement by Cotton LJ, at p 94:
“But no case has been cited where the doing something not in itself noxious has been held a nuisance, unless it interferes with the ordinary enjoyment of life, or the ordinary use of property for the purposes of residence or business. It would, in my opinion, be wrong to say that the doing something not in itself noxious is a nuisance because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life.”
“There is a clear analogy here. The developers in building the flats, and the claimants as successors in title who chose to buy the flats, have created or submitted themselves to a sensitivity to privacy which is greater than would [be] the case of a less glassed design. It would be wrong to allow this self-induced incentive to gaze, and to infringe privacy, and self-induced exposure to the outside world, to create a liability in nuisance. Other architectural designs would have reduced the invasion of privacy to levels which should be tolerated; that is the appropriate measure in my
view.
If the claimants have a design which raises the privacy invasion then they have created their own sensitivity and will have to tolerate what the design has created. I remind myself that the first designs for these flats did have some privacy protection built in.”
The judge made the same point about the use to which the claimants had put the winter gardens: paras 208-211. They had been designed as a form of glazed balcony but had been converted by the claimants for use as an ordinary living area. As the judge observed, one does not expect so much privacy on a balcony. In converting the winter gardens to internal living areas the owners of the flats had “created their own additional sensitivity to the inward gaze”.
Tate
to be balanced against each other is by a finding that the
Tate
has committed the tort of nuisance, leaving the balance to be struck in a more tailored way by adjustment at the remedies stage. Although the law in this area does allow for a degree of fine-tuning of the balance at the remedies stage, I do not consider that this justifies the approach urged by Mr Weekes. As explained above, the right of action in nuisance is an aspect of the right of property in land in the context of a particular neighbourhood. That is why “coming to a nuisance” is not a defence; nor is it generally a defence that the defendant has taken the utmost care in carrying on their activity (see Hunter, p 696F per Lord Lloyd, citing Read
v
J Lyons & Co Ltd [1947] AC 156, 183). It is appropriate that such rights should be determined according to a reasonably clear objective standard, as provided by the “give and take” principle. The tort depends on what, in the circumstances of the particular area, is to be regarded as the protectible interest of the claimant regarding their reasonable use of their land. This is primarily a matter of objective right affecting the property itself, to be governed by application of the “give and take” principle, not a matter of remedy and the application of a discretion regarding adjustment between the particular claimant and the particular defendant.
Alternative approaches
Tate’s
use of its property falls outside the “common and ordinary” use of land in the locale, however one might characterise the nature of the use by the claimants of their land. Lord Leggatt considers that the claimants’ use of their land was “common and ordinary” in the locale and on that basis focuses on asking whether the defendant’s use of its land is “common and ordinary” by the standards of the locale (together with asking whether it involves a substantial interference with the claimants’ enjoyment of their land). By contrast, as I read Mann J’s judgment, he clearly did not find that the claimants’ use of their land was “common and ordinary” by the standards of the locale, having regard to the nature of the nuisance alleged and the way in which the land at Neo Bankside had been developed with a heightened degree of
visual
openness and how the claimants had chosen to use the winter gardens: see below. In my opinion, in that context and more generally the relevant question is whether the use meets an objective test of reasonableness encapsulated by the reciprocity principle of “give and take” as developed in the modern authorities. That test is critically informed by the nature of the locale but also takes account of the general rule, as emphasised in the authorities, that a landowner may use its own land as it sees fit. Not every new use of land which is not in accordance with common and ordinary usage in a locale is an actionable nuisance, since otherwise there would be no scope for development and change and the
vibrancy
of modern life would be stultified.
Tate’s
use of its land is causing a significant interference with the claimants’ enjoyment of theirs, having regard to the manner in which they wish to use it, and the use by the
Tate
is not common and ordinary, it is said that the claimants’ complaint in nuisance is made out. In my respectful opinion, however, the principle of reasonable user explained by Tony Weir and endorsed in Lawrence cannot be reduced to a simple question whether the defendant’s use is common and ordinary. Instead, in an unusual case like the present, it requires a broader consideration of the circumstances of the case, including whether the claimants’ own use of their land is common and ordinary for the locale, whether by their use they have made themselves particularly
vulnerable
to the type of intrusion of which they now complain and whether there are measures of self-help available to them of a comparatively modest and normal kind which would reduce that intrusion to an acceptable degree in the context of the locale. There are sound reasons why it is appropriate to adopt an approach based on an objective standard of reasonableness in the context of the particular locale.
Tate
apart from persons using their land in the unusual way the claimants have done.
view
too conservative as regards development of land and conflicts with the general policy of the law that a landowner should be free to use its land as it wishes. The history of the development of the country’s urban areas has been one of innovation, and the common law should be slow to adopt rules that may prevent this continuing into the future. The risk involved with giving undue emphasis to common and ordinary use by the defendant is that localities may become trapped in time, with landowners unwilling to do something different for fear of legal reprisals from any neighbour who might object by reason of its unwelcome effect on their land. The general policy of the common law is to favour freedom for property owners to use their land as they wish, including by their choice of building design. It is for this reason that there is a general rule that no right to a prospect can be acquired by prescription and why it is right that great care should be taken that the operation of the tort of nuisance should not interfere unduly with such freedom: see paras 196-198 above. In my
view,
an approach which focuses predominantly on the question whether a defendant’s use is common and ordinary for the locality would give excessive power to neighbours to block (or impose costs on) development which they do not like, potentially frustrating new uses of land which are objectively reasonable and which can be accommodated without undue intrusion upon neighbours’ use of their own land according to the standards of that locality.
view,
it is necessary to have recourse to a more general principle of objective reasonableness, as has been stated in the cases.
v
Peak Ingredients Ltd (2011) 4 JPL 429 and the use of neighbouring flats in the Southwark case. Bramwell B put it succinctly in Bamford
v
Turnley, p 83, in his positive statement that “those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action”. If those conditions are fulfilled, the answer is simple, that the defendant has made out a defence: see Southwark, p 21, per Lord Millett. That is to say, in such a case the defendant will have established that its activity was reasonable, according to the relevant objective standard.
vibrant
and changing modern society I think the principle of reasonable reciprocity, or give and take, has to be wider than that. The fact that there are simple cases of the kind just referred to does not exhaust the requirement to find a suitable legal mechanism capable of governing the full range of situations which may arise. In some cases the courts’ reasoning does not depend upon whether the defendant has been using its land in a common or ordinary way. Other factors come into play as well.
v
McAlpine [1923] 1 Ch 167, Webster
v
Lord Advocate 1985 SC 173, Miller
v
Jackson [1977] QB 966 and the authorities discussed in paras 172-174 above. The fact that the courts examine issues of this kind indicates that a broader test of objective reasonableness is being applied than simple examination of whether the defendant’s use of its land is common and ordinary. The cases in which unusual sensitivity of the claimant’s activities is treated as important, such as Robinson
v
Kilvert, demonstrate the same point.
Tate’s
use of its land by operation of the
viewing
gallery was not a common and ordinary use of land in the locale, so it could not simply say that it had a defence on that basis. However, in my
view
that is not sufficient to render the
Tate
liable to a claim in nuisance by any neighbouring landowner who could say that the resulting interference with its interests was significant or substantial.
Tate
was obliged to moderate the use of its land to accommodate their use of their land according to the objective standard of reasonableness applicable in that locale.
Tate’s
use of its land was unreasonable according to the relevant objective approach, as judged by the standards applicable in that locale. That is what he did, in what I consider to be an entirely acceptable way: see below. The judge’s analysis plainly did not depend just on an assessment that the
Tate’s
use of its land was reasonable from its point of
view.
Nor was it an assessment of reasonableness made in the abstract without reference to the particular features of the locale.
v
Turnley) the defendant will commit no nuisance only if the offending use is “conveniently done”, ie reasonably and with proper regard to the interests of the other party. Lord Hoffmann made this point in Southwark, at p 16, in discussing Sampson
v
Hodson-Pressinger [1981] 3 All ER 710 (in which use of a terrace over the plaintiff’s roof was held to be a nuisance because of noise): “in my opinion this decision can be justified only on the basis that having regard to the construction of the premises, walking on the roof over the plaintiff’s flat was not a use of the flat above which showed reasonable consideration for the occupant of the flat beneath. It was not, in Baron Bramwell’s phrase, ‘conveniently done’”; suitable soundproofing was required; conversely, if there had been normal and ordinary user “in a way which shows as much consideration for the neighbours as can reasonably be expected”, there would not have been an actionable nuisance. See also para 200 above. Reasonableness is not a concept without explanatory power in this context. I do not think that there is anything inappropriate about applying an equivalent test of objective reasonableness, by extension, in the circumstances of the present case.
Tate’s
use of its land or the claimants’ use of theirs was common and ordinary for the area, I also have reservations whether a modified
version
of the argument presented by Mr Weekes, to say that so long as a claimant’s use of its land is common and ordinary for the area (which, on the judge’s findings, is not this case) then any interfering use by the defendant of its land which is not common or ordinary for the area will qualify as a nuisance (cf paras 48-52 of Lord Leggatt’s judgment above), meets the points above. As I have said, the fact that the claimant’s use is common and ordinary is an important factor, but it may be that a comparatively modest adjustment in the claimant’s use of its land which it would be reasonable to expect it to adopt would be capable of accommodating the defendant’s use by reducing the friction between the competing uses to an acceptable level. If that is so, the claimant’s user should not of necessity trump the ordinary right of the defendant to use its property in a new way, so as to eliminate all question of whether there is scope for a reasonable accommodation of the two uses. In my
view,
the tort does not operate according to such a mechanistic rule. In principle, an objective test of reasonableness (albeit one which has regard to the ordinariness or otherwise of the use on either side of the equation) is appropriate to frame the balancing of interests which is required in such a case, as in others. This is something which will be highly dependent on the particular facts and a matter for assessment by the trial judge. Since an objective test of reasonableness is necessary to deal with cases where neither of the competing uses is ordinary for the area, I see no sound reason why such a test should become irrelevant just because the claimant’s use of its land is ordinary.
Tate’s
use of its land is capable of giving rise to liability in nuisance and is part of the reason that friction has arisen that conditions as to its use can be imposed, and that is so even though the claimants’ use of their land is not common or ordinary in this locale.
v
Turnley are not a statute and should not be interpreted as such. It is fair to say that he focused in that case on the question of whether the defendant’s use of his land was common and ordinary, but the “rule of give and take, live and let live” is a general test of objective reasonableness. It is that formulation which has been approved in the recent cases at the highest level, where it has been described as a rule of reasonableness; deliberately so in my opinion (see paras 158-159 above).
view
among commentators is that the question of the reasonableness of the defendant’s conduct, judged according to an objective standard, is central: see eg WVH Rogers, Winfield and Jolowicz on Tort, 18th ed (2010), p 714); Professor R Buckley, The Law of Negligence and Nuisance, 6th ed (2017), pp 259-260; J Murphy, The Law of Nuisance (2010), p 5; N McBride and R Bagshaw, Tort Law, 6th ed (2018), pp 399 and 404; and Tony Weir (para 159 above) and Professor Goodhart (para 164 above). Accordingly, I think that the alternative approach does not affirm established principle, but instead would constitute a major change in the law, by elevating one factor (whether the defendant’s use of its land is common and ordinary) to unjustified prominence.
v
Fletcher (1868) LR 3 HL 330, Lord Goff also examined the law of nuisance. He was clear that the defendant’s use of its land for storage of chemicals was not “natural or ordinary” (p 309) and it was plain that the use had caused a substantial interference with the claimant’s enjoyment of its land. There was no suggestion that the claimant’s use of its land was other than ordinary. Yet, as Lord Goff explained, the defendant was not liable in nuisance. This was because the defendant could not reasonably have foreseen that its use would cause harm to the claimant, and on this basis the defendant’s use of its land did not infringe the principle of reasonable user (p 306). In my
view,
this conclusion shows that Lord Goff was referring to a wider test of reasonable user which took account of the fact that the defendant’s use of its land was not common or ordinary, but allowed for that factor to be outweighed by other factors relevant to application of that test.
v
Westminster City Council [2001] UKHL 55, [2002] 1 AC 321, with whose speech the other members of the Appellate Committee agreed. The case concerned liability in nuisance for remedial expenses in relation to intruding tree roots. At para 29 Lord Cooke said: “… I think that the answer to the issue falls to be found by applying the concepts of reasonableness between neighbours (real or figurative) and reasonable foreseeability which underlie much modern tort law and, more particularly, the law of nuisance. The great cases in nuisance decided in our time have these concepts at their heart”; he referred in particular to Sedleigh-Denfield.
Tate’s
use of its land and the claimants’ use of their land arose in part from the design of the buildings constructed on their respective properties and in part from the use to which the claimants put the winter gardens. The
Tate’s
building design incorporated a
viewing
platform; the predominantly glass design of the claimants’ flats meant that their residential areas were particularly exposed to
view.
An approach based on the principle of reasonable reciprocity and compromise and objective reasonableness allows these factors to be taken into account in a principled manner.
view
that an approach based on the principle of reasonable reciprocity and compromise and application of a standard of objective reasonableness informed by the character of the relevant locality is preferable to one based simply on whether the defendant’s use of its land is “common and ordinary”.
The approach of an appellate court
v
Medeva plc [1997] RPC 1, a case in which the House of Lords declined to interfere with an evaluative judgment by the first instance judge regarding the obviousness of an invention, Lord Hoffmann explained (p 45) the reason why 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:
“The need for appellate caution in reversing the judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la
vérité
est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation. It would in my
view
be wrong to treat Benmax [Benmax
v
Austin Motor Co Ltd [1955] AC 370] as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved. Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be
very
cautious in differing from the judge’s evaluation.”
See also In re Grayan Building Services Ltd (in liquidation) [1995] Ch 241, 254 per Hoffmann LJ: “generally speaking, the
vaguer
the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standard [… has] been met, the more reluctant an appellate court will be to interfere with the trial judge’s decision”.
visual
intrusion experienced by the claimants and conducted a site
visit.
It would have been impossible for him to express every nuance of the evidence which led him to his conclusion. As it is, he produced a formidable judgment explaining his reasons for his conclusions in considerable detail. Neither the Court of Appeal nor we can hope to match the way in which he was steeped in the detail of the case.
Mann J’s decision
visual
intrusion in relation to a residential property, Mann J turned to consider whether the claimants had established an actionable nuisance on the facts of this case. At para 130(iv) he directed himself by reference to Lord Neuberger’s judgment in Lawrence, paras 3-5. At para 180 Mann J again explained that he based his judgment on the law as outlined by Lord Neuberger in Lawrence and asked whether “the
Tate
…, in operating the
viewing
gallery as it does, is making an unreasonable use of its land, bearing in mind the nature of that use, the locality in which it takes place, and bearing in mind that the
victim
is expected to have to put up with some give and take appropriate to modern society and the locale”.
Tate
provided no helpful guidance. He characterised the locality as an inner-city urban environment with a significant amount of tourist activity, in which anyone would expect to live cheek by jowl with neighbours; and he noted that the claimants acknowledged this to the extent that they did not object to the fact that they were overlooked from the windows of the Blavatnik Building: para 190. He found that the
Tate
was making reasonable use of its land; the operation of a
viewing
gallery was not an inherently objectionable activity in the neighbourhood: para 196.
visit,
Mann J was well placed to make findings as to the nature of the locale: para 87. At para 130 he cited Sturges
v
Bridgman and Sedleigh-Denfield and was well aware that the assessment of nuisance needed to be made taking into account the characteristics of the area (see also para 180). In characterising the locality as he did, Mann J established what the reasonable standard of privacy was for the particular locale. This provides the necessary context for the discussion at paras 200-206 of whether hypothetical flats “designed with more wall and less window” would have had cause for complaint.
vulnerability
to the external gaze in that locale also could not complain: para 203.
view
because of the nature of the
view
… [ie] the complete (or largely complete)
view
that one has of the living accommodation from the
viewing
gallery”; and by pointing out that this “arises (obviously) because of the complete glass walls of the living accommodation”. He therefore explained that he would consider whether the claimants would have had a complaint if they had lived in flats designed “with more wall and less window”, since if so they would still have a complaint in nuisance irrespective of the particular design they had adopted (ie there would have been undue interference with their property rights according to the objective reasonableness test appropriate for the particular locality). If, on the other hand, they would not have a complaint in nuisance in such circumstances, then he would have to consider whether they would none the less have a cause of action, arising out of the glass construction.
view,
that analysis cannot be faulted.
valid
complaint if they had lived in flats constructed according to a conventional design, “with more wall and less window”: paras 200-203. Against the background of that assessment, he turned to the second issue he had outlined in para 201 and in that context drew the analogy with the nuisance cases about sensitive users to which I have referred above. He concluded that it would be wrong for the self-induced incentive to gaze into the flats associated with their exceptionally open design to create a liability in nuisance: paras 204-211.
victim
of excessive dust would not be expected to put up additional sealing of doors and windows and the
victim
of excessive noise would not be expected to buy earplugs, but “privacy is a bit different”; susceptibilities and tastes differ and it is “acceptable to expect those wishing to enhance it to protect their own interests” to some degree (para 215). He referred to a point made by some of the claimants about the presence of children in the flats, but pointed out that they did not have relevant rights in nuisance of their own as they are not landowners and held that their interests did not add anything substantial to the significant interests of their parents or grandparents associated with their property rights: para 217.
Criticisms by the Court of Appeal
v
Kilvert (above): the claimants had no undue sensitivity as individuals and their activity in using their flats (ie without employing screening) was “ordinary and reasonable” and did not fall foul of the objective reasonable user test for nuisance; there was no finding that the
viewing
gallery is “necessary” for the common and ordinary use and occupation of the
Tate
within Bramwell B’s statement in Bamford
v
Turnley set out above; and (citing Miller
v
Jackson [1977] QB 966) there could be no question of any need on the part of the claimants to take any self-help steps to prevent the
visual
intrusion which was happening: paras 98-99; and (ii) there was no suggestion that the claimants are using their flats otherwise than in a perfectly normal fashion as homes, and the judge’s approach to balance their interests against those of the
Tate
was contrary to the general principles of private nuisance: paras 100-102.
Assessment
v
Turnley, as criticised by the appeal court in that case, of asking simply whether the
Tate’s
use of its own property was reasonable, assessed without reference to the interests of the claimants as neighbouring landowners.
view,
this submission cannot be sustained. It is clear that the judge addressed the relevant question, which was the application of the “give and take” principle, and that he considered the reasonableness of the
Tate’s
use of its property in the wider sense explained by (in particular) Lord Goff in Cambridge Water and Lord Neuberger in Lawrence, taking into account the interests of the claimants as well as the
Tate
and having regard to the nature of the neighbourhood in seeking to identify a reasonable balance between them.
Tate
as a neighbouring landowner, could be said to be reasonable. Having concluded that it was reasonable according to this standard, they thought that the judge fell into error by treating the claimants’ interests and rights as regards the use of their property as falling to be qualified by reference to the use to which the
Tate
wished, reasonably, to put its own property. But in my
view
that is to misapply the “give and take” principle and, in effect, repeats the error of the trial judge in Bamford
v
Turnley from the opposite direction. It gives excessive weight to the reasonableness of use by one of the landowners whose interests conflict, in this case the claimants, assessed without reference to the reasonable interests of the other landowner regarding the use of their own property. Proper application of the “give and take” principle means that the reasonable interests on both sides regarding the free use of their respective properties have to be taken into account.
Tate
in making use of its own property as it wishes in a particular way, by operating the
viewing
gallery, which the judge found to be reasonable when assessed by reference to the nature of the locality. The Court of Appeal said that this use was not “necessary” (quoting Bramwell B) for the common and ordinary use of the
Tate’s
property. In framing the balance between competing rights and interests in this way I consider that the Court of Appeal inappropriately treated the language used by Bramwell B like the text of a statute and lost sight of the underlying principle which he was seeking to lay down. In consequence, they distorted the “give and take” principle by setting the interest of the claimants to use their property in a way which was reasonable (judged from their own perspective) against a requirement that the
Tate’s
use of its property had to satisfy a higher standard of being “necessary”. There is no good reason in principle why the test should be weighted against one of the competing property owners in this way. The
Tate’s
use of its property to create a
viewing
platform may not have been conventional, but in my opinion the Court of Appeal’s approach fails to acknowledge that the “give and take” principle is directed to reconciling the competing freedoms of property owners to use their property as they see fit, as was emphasised in Hunter.
view,
the judge’s approach to the application of the “give and take” test was correct. Property owners in this part of London have to expect to be overlooked to a significant degree and the risk of people being able to look through their windows from neighbouring properties is an inevitable part of community life in the area. It is normal to expect people to use curtains, blinds and other screening measures to limit the annoyance which that might cause. As the judge rightly observed, the nature of the nuisance alleged (
visual
intrusion) is significant. He found that the
Tate’s
viewing
gallery would not have constituted a nuisance if Neo Bankside had been built and the winter gardens had been used in a way which did not involve heightened sensitivity to that form of intrusion and which did not invite “the consequence of an increased exposure to the outside world”, beyond that to be expected by the “appropriate measure” for the area: paras 205-206 and 208-211.
visual
intrusion still further. The owners of the flats at Neo Bankside could not acquire any right
vis-à-vis
neighbouring landowners to maintain their aspect looking out, since that would interfere to an unacceptable degree with the rights of neighbouring landowners to develop their own land for use as they wished. Nor in my
view
could they acquire any right against being overlooked and subjected to
visual
intrusion which would be seriously burdensome in terms of preventing neighbouring landowners developing their own land for use as they wished, to a degree beyond that which would be regarded as reasonable for the area.
Tate
in the context of the particular neighbourhood and in light of the nature of the particular nuisance alleged (ie by
visual
intrusion), I consider that the judge was entitled in the circumstances to have regard to the availability of self-help measures which it was not unreasonable to expect them to take.
v
Jackson (above) does not rule this out as a matter of principle. It was a
very
different case, involving dangerous invasion of the claimants’ property by flying cricket balls struck from the neighbouring cricket ground. They broke windows and tiles on the roof and created the risk of personal injury to the claimants, particularly when using their garden. As Lord Neuberger emphasised in Lawrence, at para 54, the case was concerned with nuisance through physical encroachment on property and potential physical damage to the claimants and their property, rather than by an assault on the senses. There was no difficulty in that case in finding that a physical encroachment of that kind clearly did interfere with the ordinary amenity attaching to the property, and the issue was whether this conclusion was affected by the fact that the claimants refused offers by the defendants to provide certain protective measures. The claimants claimed injunctive relief to compel the defendants to stop playing cricket on the ground until they had erected a barrier of sufficient height to prevent the encroachment by cricket balls. The defendants said that the claimants should have accepted alternative protective measures, for which the defendants offered to pay, by fitting unbreakable glass or shutters and by fixing a net over the garden to stop the balls landing there. The majority in the Court of Appeal (Geoffrey Lane and Cumming-Bruce LJJ) held that a nuisance was made out. Geoffrey Lane LJ said (p 985) that there was no obligation on the claimants to protect themselves in their own home from the activities of the defendants; in any event it would have been unreasonable to expect them to live behind shutters and stay out of their garden; and the net idea was impracticable, in that it would have required the construction of supports in the garden and it was not reasonable to expect the claimants to consent to that. Cumming-Bruce LJ agreed with these points. These observations were directed to the particular circumstances of that case and do not suggest that the availability of self-help measures is irrelevant in every case. The position in Miller
v
Jackson is consistent with the test set out in para 215 above.
visual
intrusion should take account of the distinct nature of the annoyance involved. The case-law which addresses this kind of nuisance most directly refers to the relevance of self-help measures which it is reasonable to expect the claimant to make use of:
Victoria
Park Racing and Martin
v
Lavigne.
Tate
as property owners.
visual
intrusion from the outside, is reasonable. So it is, looking at it solely from their point of
view.
But in my judgment, though that is of course a relevant factor, it cannot be a sufficient basis for the grant of an injunction to prevent the
Tate
using its property as it wishes reasonably to do, any more than the reasonable use by the defendant of his own property in Bamford
v
Turnley was a sufficient ground for refusing the grant of an injunction, which would have had the effect of requiring the claimant to put up with the detrimental impact on his property arising from such use.
Tate
wish to use their respective properties in ways that are reasonable from their respective self-regarding perspectives, but in circumstances which were not established as common or ordinary for the area at the time their respective properties were developed. In my
view,
Mann J was right to assess their competing claims against an objective standard involving comparison with the established usual design for a residential block in the area, with normal window arrangements. Assessed against that standard, the
Tate’s
operation of the
viewing
gallery did not involve a nuisance. The owners of the flats in Neo Bankside could not turn the operation of the
viewing
gallery into a nuisance by reason of the development of their own property according to a design which was out of line with the norm for the area.
various
criticisms made of the judge cannot be supported. His approach to the application of the “give and take” principle was correct. The factors to which he referred and to which he gave particular weight were relevant and he was entitled to make the assessment he did. In my opinion, there are no good grounds on which an appellate court could interfere with that assessment.
Conclusion
Remedy and Disposal
view
of the fact that the question of remedy is to be remitted to a court at first instance. Other than when a split trial has been ordered to address liability and remedy in separate hearings, the ordinary rule is that it is incumbent on a party to litigation to bring forward their whole case at trial: see, eg, Sainsbury’s Supermarkets Ltd
v
Visa
Europe Services LLC [2020] UKSC 24; [2020] Bus LR 1196, paras 235-243. This rule reflects the public interest in the efficient and proportionate resolution of disputes and the requirement of fairness in litigation. Parties are entitled to know where they stand at trial so that they can make their decisions relating to the conduct of the litigation with an appreciation of what issues are to be determined then. Also, they ought not to be
vexed
by the reformulation of claims in successive suits: see, in particular, the explanation of the rule in Henderson
v
Henderson (1843) 3 Hare 100 by Sir Thomas Bingham MR in Barrow
v Bankside Members Agency Ltd [1996] 1 WLR 257, at 260.