Haters gonna (sue the) Tate: court-based class warfare and private nuisance post-Fearn

Introduction

On 17th June 2016, the Tate Modern, Britain’s national museum of modern and contemporary art, opened the doors to its Blavatnik building for the first time.[i] After six and a half years of work at a total cost of £260 million,[ii] only ‘made possible by one of the largest cultural fundraising campaigns ever launched’, its top floor promised a free alternative to the Shard and the Sky Garden offering a ‘panoramic roof terrace overlooking the London skyline’.[iii] We can safely say this dream was realised. Tripadvisor reviews were a cacophony of positivity, describing the views as ‘stunning’, ‘breathtaking’, ‘unbeaten’ and ‘a must for any London visitor’.[iv]

Unfortunately, several ‘striking’ floor-to-ceiling-glass-walled apartments stood in prime viewing location, merely 34 metres away.[v] The owners of the flats, worth £4.5 million, built after planning permission was granted to the Tate but before the viewing platform was opened, found their flats transformed into surrealist modern art pieces. Visitors peered through their windows/walls, gesticulated rudely, and took close-up photographs of their interior design.[vi] The flat owners felt like they were ‘on display in a zoo’ and promptly sued the gallery in private nuisance. [vii] The trial’s facts, reminiscent of a satirical cartoon, thrust the issue into the mainstream; a guerrilla artist installed a dozen binoculars in the gallery to enable visitors to look into the apartments in a piece entitled ‘Please respect our neighbours’ privacy’.[viii] At first instance and in the Court of Appeal, the flat owners’ case was thrown out. The Supreme Court thought otherwise.

At first glance, the majority judgment in Fearn takes a sledgehammer to the law of nuisance and reconstructs it from new principles.[ix] However, its impact should not be overstated–its rather heterodox approach should be seen as indelibly linked to the specific and remarkable facts rather than a broader sea change in the law of nuisance. This article will approach the judgment in two parts. The first will outline the three key ways in which the Fearn judgment purports to change the law: (i) its elevation of ‘common and ordinary use’ into what seems to be a catch-all test for liability in the law of nuisance, (ii) its recognition that ‘overlooking’ can be an actionable interference, and (iii) its dismissal of any potential self-help measures at the liability stage. The second part will argue that each of these changes can be viewed as confined to the specific facts of Fearn and should be rejected insofar as they purport to deviate from the wider law of nuisance. Elevating ‘common and ordinary use’ to the sole test for liability simply does not work within the wider context of nuisance, a ‘liberty to build’ fails to explain the result in Bradford Corporation v Pickles,[x] and the decision’s view of self-help is unjustifiably narrow.

Part I: Rewriting the Law of Nuisance

Mann J at first instance rejected the case using a multifactorial ‘reasonability’ test, holding that the claimants’ choice to live in all-glass boxes had ‘increased the[ir] sensitivity’ to the nuisance.[xi] Echoing suggestions from the Tate’s director, he bluntly held that the owners should lower their blinds, use privacy film, or put up some curtains.[xii] The Court of Appeal instead rejected the claim on the basis that the case fell outside the ambit of the law of nuisance; following the Australian case of Victoria Park Racing,[xiii] they thought there was simply no right ‘not to be overlooked’.[xiv] In the Supreme Court, however, both approaches were resolutely rejected by Lord Leggatt (writing for the majority). He remarkably suggested that the entire reasoning in the lower courts was based on a ‘reluctance to decide that the private rights of a few wealthy property owners should prevent the general public from enjoying an unrestricted view of London’,[xv] an observation whose source is difficult to detect in the text of both lower court judgments.

To counteract this perceived bias in favour of the ‘common and ordinary’ people, Lord Leggatt made three major changes to the law of nuisance.[xvi] First, his judgment seemingly elevates the principle of ‘common and ordinary’ usage to an ultimate test for nuisance liability. This occurs in two ways. One is that the complainant must use their land in a common and ordinary way. Extremely sensitive uses of land will not give rise to liability, as per Robinson v Kilvert, where fumes which damaged a highly sensitive form of paper stored in a warehouse were not considered a nuisance, as ordinary paper would not have been affected.[xvii] The other, much more surprising way, is that ‘even where the defendant’s activity substantially interferes with the ordinary use and enjoyment of the claimant’s land, it will not give rise to liability if the activity is itself no more than an ordinary use of the defendant’s own land’.[xviii] This approach is purportedly justified by the ‘give and take, live and let live’ attitude of Bramwell B in Bamford v Turnley[xix] and, given the Tate’s ‘very particular and exceptional use of land’, allowed for a nuisance to be found on the facts.[xx]

Lord Leggatt thus reversed the trial judge’s finding of fact that the claimant’s floor-to-ceiling glass windows were unusual for the locality, instead asserting that these were ‘a common feature of modern, high-rise city buildings’.[xxi] This is not as straightforward as he suggests; an appellate court ‘should be very cautious in differing from the judge’s evaluation’,[xxii] and given that Mann J had carried out a site visit and was ‘steeped in the detail of the case’,[xxiii] it is suggested he likely understood the nature of the locality better.

Second, Lord Leggatt overturned the judgement of the Court of Appeal (as trenchantly defended by Nolan[xxiv]) in holding that ‘overlooking’ can ever ground a claim in nuisance. He restated cases previously understood as involving non-actionable rights (there being no claim for obstruction of a view as in Aldred’s case[xxv] and no claim for interference with television reception in Hunter v Canary Wharf[xxvi]) as being based on a ‘freedom to build’, holding that ‘there is no conceptual or a priori limit to what can constitute a nuisance’.[xxvii]

In doing so, the majority distinguished Fearn from Victoria Park Racing. There, the High Court of Australia found no nuisance when a man broadcast commentary obtained by overlooking a racetrack. In Fearn, the majority held that this case never established that ‘overlooking’ could not be a nuisance, but rather that broadcasting (and the subsequent loss of profits) could not. They instead thought Raciti to be more apt, where a surveillance camera and its motion-activated flashlight was found to be a nuisance. [xxviii] Once more, the truly exceptional facts of the case, coupled with the Tate’s extreme use of the land, explain a lot in the judgment; it is difficult to imagine a more serious case of overlooking. Lord Leggatt thought that the argument ran by the Tate was like the belief 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.’[xxix] In short, post-Fearn, all liability for nuisance is a question of threshold and not of actionability.

The final major change is the discard of self-help measures and public interest considerations at the liability stage. Mann J’s suggestion that the claimants should lower their blinds received a particularly frosty reception and was interpreted by Lord Leggatt as an ‘attempt to throw responsibility on the victim’.[xxx] While he agreed that homeowners must mitigate any interference caused by the ‘common and ordinary use’ of their neighbours’ land, where there was a nuisance, closing the curtains in the day was deemed a burden too heavy for Giles and his fellow flat owners to bear.

Other than this, the majority reiterate several definite and fundamental principles of nuisance. The judgment affirmed that nuisance is a ‘tort against land’, meaning that ‘particular sensitivities or idiosyncrasies of those individuals are not relevant’ to liability.[xxxi] Short shrift was given the argument that Article 8 of the European Convention of Human Rights was breached.[xxxii] The court reiterated that considerations of public interest are for the remedy stage and not a factor in establishing liability, that coming to a nuisance is not a defence, and that planning permission is only relevant insofar as it affects the nature of the locality.[xxxiii]

Part II: ‘if [it] dies, [it] dies’

The elevation of the ‘common and ordinary’ user as the be-all and end-all determiner of private nuisance liability is the most questionable change introduced by Fearn. The view that claimant-induced sensitivity can preclude nuisance appears to be a gloss of the objectivity principle established in Robinson v Kilvert.[xxxiv] The same cannot be said for the view that a defendant’s use of land must not be common and ordinary for a nuisance to be made out. While this seems to work for domestic areas such as Neo-Bankside, it clearly fails to appreciate the concept of mixed-zonal areas. On Lord Leggatt’s approach as described in paragraph 27, a factory would seemingly never be able to be liable for nuisance, given that producing fumes is a ‘common and ordinary use’ of a factory’s land. It is a concept perhaps drawn from the doctrine of Rylands v Fletcher[xxxv] but one which should remain firmly outside the boundaries of private nuisance given that it is at odds with so many fundamental cases.[xxxvi]

 

It is a view that thus produces absurd outcomes and is the part of the judgment from which Lord Sales dissents most vigorously. It is true that liability does ‘not turn on some overriding and free-ranging assessment by the court of the respective reasonableness of each party’.[xxxvii] However, all this means is that it is not for the court to unilaterally find in favour of whichever party is behaving ‘more reasonably’; it is not the court’s role to be an arbiter of fairness. The orthodox approach to nuisance did not do this. Liability turned on an objective understanding of reasonableness in light of a broad range of factors instead of the ‘mechanistic rule’ Lord Leggatt suggested.[xxxviii] Lord Sales rightly emphasises that the approach taken in Fearn is ‘too conservative’[xxxix] and places ‘excessive weight on one side [the defendant’s] of what is an inextricably two-sided relationship’ and ‘disable[s]’ the court from looking at how the claimant has used its own land.[xl] Lord Leggatt’s reformulation of the law also cannot apply to cases where others are creating a nuisance on the claimant’s land.[xli] Nuisance ‘does not require a use by the defendant of its land’,[xlii] and as Henry LJ held in Northampton Borough Council v Lovatt, “[t]here would be no sense in a law which prevented you from playing your music at maximum volume in the middle of the night from your home but permitted you to walk around your neighbourhood with your ‘ghetto-blaster’ at full pitch”.[xliii] 

Given that this ‘common and ordinary’ approach plainly cannot be understood in the way in which Lord Leggatt appears to have stated it, it is suggested that it arose from the extremely unusual way in which the Tate used their land coupled with his desire to correct what he saw as judicial activism. Unfortunately, he went too far. Instead of judicial pragmatism, he adopted the ends-justify-the-means approach epitomised by Ivan Drago in Rocky IV: ‘if [the orthodox law of nuisance] dies, [it] dies’.[xliv] It is unclear whether the repercussions were intentional, but given the outcomes set out above, the law ought to be clarified in favour of the previously understood test. A nuisance should simply be made out where there is a ‘substantial and unreasonable interference with the claimant’s use and enjoyment of land’.

Luckily, this appears to be what has happened. Without overtly departing from Fearn (and even citing it), the two subsequent Supreme Court nuisance cases have returned to orthodoxy and jettisoned the concept of ‘common and ordinary use’ from their vocabulary.[xlv] In Lord Burrows’ summary of the ‘core principles of the tort’ in Jalla v Shell, he states that the defendant must ‘go beyond what is ordinary use’, but immediately follows this by stating it is decided by a ‘balancing of the conflicting rights of landowners’[xlvi] – the very approach missing from Lord Leggatt’s judgment in Fearn.[xlvii] It is notable that Lord Leggatt sat on neither subsequent case.

The second development (with respect to ‘overlooking’) is a welcome one but sits at odds with the previous law. Lord Leggatt is correct in distinguishing Victoria Park Racing and overruling the Court of Appeal on this point (as the dissent agrees). ‘Persistent’, ‘intrusive’, and ‘constant and oppressive’ surveillance is plainly different to being deprived of profit. However, shifting the burden to threshold rather than actionability suggests that were the claimants in Victoria Park Racing deprived of more money, their loss may well have been actionable; the reasoning conflates a pre-condition for bringing a case with a reason for finding a certain way.

Nonetheless, while a ‘freedom to build’ explains away the view and television reception cases, it sits at odds with the ruling in Bradford v Pickles that maliciously interfering with percolating water cannot ground liability in nuisance.[xlviii] The extent of this ‘freedom’ is also left uncertain. There is no suggested ‘freedom to damage other’s water supply’; while it can be conceptualised as a particularly extreme example of a freedom to build, Mr. Pickles was famously not building – merely trying to stop water going into Bradford’s reservoirs.

The dismissal of self-help is also unwelcome. It is clearly a factor which should be considered as part of the concept of reciprocity which underlies the tort, and Lord Leggatt’s rejection of it as a ‘defence’ is somewhat confused.[xlix] It relies on the idea that ‘[t]he claimants cannot be obliged to live behind net curtains or with their blinds drawn all day every day’.[l] What happened to the freedom to build and no right to a view? Why is Patricia Hunter not so entitled but Giles Fearn is?[li] It is submitted that this is a further aspect of the decision which in future will likely be confined to the facts. 

Conclusion

This article has argued that Fearn purported to make three fundamental changes to the law of nuisance. It seemingly elevated ‘common and ordinary use’ into the ultimate test for determining nuisance liability, restates ‘no rights’ cases, and relegated the potential of easy self-help to the remedy stage. It has been argued that these are all at odds with previous law and most are undesirable developments which ought to be confined to the case’s truly exceptional facts. It is often said that those in glass houses should not throw stones. For fear of upsetting the law of private nuisance, they should perhaps also refrain from suing those who look in.

 

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[i] Originally called Switch House, it was renamed for a £50 million donation from the billionaire oligarch Len Blavatnik.

[ii] £50 million of which was public money: https://www.tate.org.uk/press/press-releases/ps50-million-build-on-success-tate-modern-and-invest-next-generation-creative/, checked 17th Oct 2024  

[iii] https://www.tate.org.uk/press/press-releases/new-tate-modern-opens-on-17-june-2016, checked 17th Oct 2024

[iv] https://www.tripadvisor.co.uk/Attraction_Review-g186338-d16751052-Reviews-Tate_Modern_Viewing_Level-London_England.html, checked 28th Aug 2024

[v] Fearn v Tate Galleries, [2023] UKSC 4, [79] (Lord Leggatt).

[vi] The two were, after all, one and the same.

[vii] The first-instance judgment contains a variety of claimant testimony: Fearn v Tate Galleries, [2019] EWHC 246 (Ch), [2019] Ch. 369. One flat owner counted ‘84 people taking photographs into the apartment over one 90 minute period’, [13], one felt ‘under surveillance’, [16], one overheard an upsetting conversation where they said the ‘rich bastards’ in the flats deserved it. Mr. Fearn admits that despite seeing the construction underway, he ‘did not make any inquiries about it and did not realise it was a viewing gallery until the time when it was opened’.

[viii] https://www.theguardian.com/artanddesign/2016/sep/21/net-curtains-tate-modern-nick-serota/

[ix] Fearn v Tate Galleries, [2023] UKSC 4.

[x] [1895] AC 587 (HL).

[xi] Fearn v Tate Galleries, [2019] EWHC 246 (Ch), [2019] Ch. 369.

[xii] ibid, [214] (Mann J).

[xiii] Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 (HCA).

[xiv] Fearn v Tate Galleries, [2020] EWCA Civ 104.

[xv] Fearn (n 7), [7] (Lord Leggatt).

[xvi] Lord Leggatt’s ‘overlooked’ pun at [109] warrants such a response. 

[xvii] (1889) 41 ChD 88.

[xviii] Fearn, (n 7), [27] (Lord Leggatt).

[xix] (1860) 3 B & S 62; 122 ER 25.

[xx] Fearn, (n 7), [50] (Lord Leggatt).

[xxi]  Fearn (n 7), [62] (Lord Leggatt). Although he claims that this was not found, Lord Sales’ dissent and a close reading of Mann J’s judgment shows that it likely was.

[xxii] Biogen Inc. v. Medeva Plc, [1997] RPC 1, 45 (Lord Hoffmann).

[xxiii] Fearn, (n 7), [255] (Lord Sales).

[xxiv] Nolan, Nuisance and Privacy, (2021) 137 Law Quarterly Review 1.

[xxv] (1610) 9 Co. Rep. 57 (KB).

[xxvi] Hunter v Canary Wharf Ltd [1997] UKHL 14, [1997] AC 655.

[xxvii] Fearn, (n 7), [12] (Lord Leggatt).

[xxviii] Raciti v Hughes (1995) 7 BPR 14837.

[xxix] Fearn (n 7), [92] (Lord Leggatt).

[xxx] One may have little sympathy for the multi-million-pound flat owners who were cursed with the realisation that glass is transparent. Lord Leggatt clearly thought otherwise (listen to the oral hearings for an indication of his views).

[xxxi] Fearn (n 7), [68]; echoing Hunter v Canary Wharf (n 27) (Lord Hoffmann).

[xxxii] Raised in argument before the UKSC to support their tort claim despite it being rejected by Mann J and not given permission to appeal.

[xxxiii] Coventry v Lawrence [2014] UKSC 13, [2014] 2 WLR 433.

[xxxiv] Although why it did not apply here is questionable.

[xxxv] (1868) LR 3 HL 330; see Nolan, The Distinctiveness of Rylands v Fletcher, (2005) 121 Law Quarterly Review 421-451.

[xxxvi] See for instance, Hunter v Canary Wharf (n 27); Halsey v Esso Petroleum [1961] 2 All ER 145.

[xxxvii] Fearn (n 7), [20] (Lord Leggatt).

[xxxviii] Fearn (n 7(, [241] (Lord Sales).

[xxxix] Not the first criticism of the court in this light. Conor Gearty, ‘In the Shallow End’ (2022) 44: London Review of Books no 2; Lewis Graham, ‘The Reed Court by Numbers: How Shallow is the “Shallow End”?’ (UK Constitutional Law Blog, 4 April 2022); Lewis Graham, ‘Has the UK Supreme Court Become More Restrained in Public Law Cases?’ (2024), MLR (vol. 87, issue 5), 1073; Marlon Austin, ‘A Drop in the Oceana, or a Tsunami of Change?’ (2024) OUULJ (13th edition) 96.

[xl] Fearn, (n 7), [227] (Lord Sales).

[xli] As in Jalla v Shell [2023] UKSC 16.

[xlii] Dwr Cymru Cyfyngedig (Welsh Water) v Barratt Homes Ltd [2013] EWCA Civ 233 (Lloyd Jones LJ).

[xliii] Northampton Borough Council v Lovatt [1997] EWCA Civ 2693 (Henry LJ).

[xliv] Sylvester Stallone, Rocky IV (1985).

[xlv] Jalla v Shell (n 40); Davies v Bridgend [2024] UKSC 15.

[xlvi] Jalla (n 40), [18] (Lord Burrows).

[xlvii] And, it should be noted, the approach of Mann J lambasted by Lord Leggatt.

[xlviii] (n 11).

[xlix] Fearn, (n 7), [214]-[216] (Lord Sales).

[l] Fearn, (n 7), [88] (Lord Leggatt).

[li] Fearn (n 7); cf. Hunter v Canary Wharf (n 27).