In Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4 (1 Feb 2023), a majority of the UK Supreme Court (Lord Leggatt, Lord Reed and Lord Lloyd-Jones agreeing) – reversing the decision of the Court of Appeal of England and Wales – found nuisance established, relying heavily on Australian and Canadian authorities concerning use of surveillance cameras:
1.
On the top floor of the Blavatnik Building, which is part of the Tate Modern art museum on Bankside in London, there is a public viewing gallery. It is a popular visitor attraction. From the viewing gallery visitors can enjoy 360-degree panoramic views of London. When the claim was brought, about 5½ million people were visiting the Tate Modern each year and, of them, several hundred thousand (between 500,000 and 600,000 on one estimate) visited 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.
2.
Unfortunately for the claimants in this case, visitors to the viewing gallery can see straight into the living areas of their flats. The flats in question are located on, respectively, the 13th, 18th, 19th and 21st floors of a block which is part of the nearby Neo Bankside residential and commercial development. The distance between the two buildings is about 34 metres and the flats on the 18th and 19th floors – which are the most affected – are at about the same height above ground level as the viewing gallery. The walls of the Neo Bankside flats are constructed mainly of glass. The trial judge found that, on the southern walkway of the viewing gallery, “[a] major part of what catches the eye is the apparently clear and uninterrupted view of how the claimants seek to conduct their lives in the flats. One can see them from practically every angle on the southern walkway”: [2019] Ch 369, para 203.
3.
The viewing gallery opens when the museum opens at 10am every day of the week. When it first opened in 2016, the viewing gallery closed when the museum closes, at 6pm on Sunday to Thursday and at 10pm on Fridays and Saturdays. In response to complaints about the viewing gallery, the closing time on Sunday to Thursday was later moved forward slightly to 5.30pm and on Fridays and Saturdays the south and west sides of the viewing gallery were closed at 7pm, with only the north and east sides staying open until 10pm. (An exception was made for one Friday each month when the whole viewing gallery stayed open until 10pm.) These were the opening hours at the time of the trial.
4.
In this action the claimants are seeking an injunction requiring the Board of Trustees of the Tate Gallery to prevent members of the public from viewing their flats from the relevant part of the viewing gallery walkway; or alternatively, an award of damages. Their claim is based on the common law of private nuisance.
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E.
The Court of Appeal’s reasons: “mere overlooking”
89.
The Court of Appeal pointed out the errors in the judge’s reasoning, much more succinctly than I have done. In their joint judgment they also explained how, if the established common law principles are applied to the facts of this case, those principles lead to the conclusion that the 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”
90.
It is important to be clear about what “overlooking” means. In ordinary speech the word refers to a spatial relationship between two places such that one affords a 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.
91.
As well as using the word “overlooking” in its ordinary sense, the Court of Appeal in their judgment also use the term to mean looking at what is happening on land from a building which overlooks it. In this (I think unconventional) sense, the word “overlooking” refers to an action done by a person rather than a spatial relationship between two places. For example, the Court of Appeal’s judgment refers (at para 51) to “a deliberate act of overlooking” and (at para 53) to “overlooking by a neighbour”. If I say that I am overlooked by my neighbour, I would normally be understood to mean that my property is capable of being seen from my neighbour’s property – not that my neighbour is engaged in an act of looking at me. Adopting the Court of Appeal’s unconventional meaning of the term, however, I think that they are again right that in the ordinary course merely looking at what is happening on neighbouring land is not an actionable nuisance. It is hard to see how such an “act of overlooking” could by itself reasonably be regarded as anything more than a minor annoyance of a kind that neighbouring occupiers have to put up with under the rule of give and take, live and let live.
(2) The complaint in this case
92.
Neither of these forms of “overlooking”, however, is the subject of this claim. The claimants’ complaint is not that the top floor of the Blavatnik Building (or its southern walkway) overlooks their flats; nor is it that in the ordinary course people in that building look at the claimants’ flats and can see inside. In fact, the claimants made it expressly clear at the trial that they do not object to the fact that they are overlooked from the Blavatnik Building: see [2019] Ch 369, para 190. What they complain about is the particular use made by 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.
93.
This, in short, is the error in the Court of Appeal’s reasoning. But I will also examine whether any of the reasons given by the Court of Appeal for the proposition that “overlooking” is not actionable as a nuisance provides any support for the contention that the activity complained of in this case is not actionable.
(3) The arguments concerning “overlooking”
94.
I do not understand the Court of Appeal’s judgment to suggest that there is any conceptual reason why 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
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The other judicial authority on which the Court of Appeal relied is the decision of the High Court of Australia in 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.
100.
Much more in point is the later Australian case of Raciti 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.
101.
To similar effect, in Suzuki 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.
102.
The Court of Appeal sought to distinguish such cases, saying that watching and spying of the kind that occurred in Raciti “is quite different from just overlooking and what takes place on the 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.
103.
It is unsurprising that there are only a few reported cases of nuisance resulting from 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.
104.
I conclude that, as well as being contrary to principle, the notion that 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.
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Reliance on planning law
109.
The second matter of policy raised by the Court of Appeal was a suggestion that planning laws and regulations would be a better medium for controlling “inappropriate overlooking” than the common law of nuisance (para 83). This seems to me to overlook (if I may use the term) the fact that, while both may sometimes be relevant, planning laws and the common law of nuisance have different functions. Unlike the common law of nuisance, the planning system does not have as its object preventing or compensating 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.”
110.
For such reasons, the Supreme Court made it clear in Lawrence that planning laws are not a substitute or alternative for the protection provided by the common law of nuisance. As Carnwath LJ said in Biffa Waste, para 46(ii), in a passage quoted with approval by Lord Neuberger in Lawrence, at para 92:
“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.
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(emphasis added)
The NSW Equity Division decision, in 1995, in Raciti v Hughes (1995) 7 BPR 14,437,7 referred to and adopted above at [100] and [102], harbours a treasure trove of authority on nuisance by use of cameras, listening devices, telephones and lights. Young J (as his Honour then was) in Raciti at 14,840 wrote that “…a deliberate attempt to snoop on the privacy of a neighbour and to record that on videotape … is an actionable nuisance”. See also Au v Berlach [2022] NSWSC 81 per Kunc J, where Raciti was followed and applied.
UK Supreme Court Judgment 1 February 2023: Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent) (supremecourt.uk)
To view a video of the full hearing of argument before the UKSC, click on the following, and then click under the heading “Watch hearing”: Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent) – The Supreme Court
