Richard Harrison on the outcome of the recent appeal proceedings in Fearn v Trustees of the Tate Gallery ([2020] EWCA Civ 14, 12 February 2020).
When I wrote about the first manifestation of this case last year (Glass Houses: botheration in Bankside, nuance in nuisance), I drew attention to the following points:
It was a judicial analysis of certain consequences of city life, of neighbours rubbing up against each other, albeit the circumstances were unusual and the neighbours in question were not denizens of the usual suburban streets.
It illustrated some facts about the pathology of the litigation system and how advice as to the outcome of any particular case depends less on guiding and predictable principles, or right and wrong, but more on the weight a judge is going to attribute to some very nuanced factors.
What was it about? Essentially some residents of one of the blocks of “Neo Bankside” a striking development of luxury flats by the Tate Modern took exception to the fact that visitors to the tenth floor viewing gallery of the Tate Modern’s recent extension, the Blavatnik Building, could view too much.
So they claimed an injunction to protect their privacy rights under the Human Rights Act and on the basis that the general law of nuisance was also effective to protect those privacy rights.
Following detailed evidence and a careful judgment they failed. Not giving up, they invested in an appeal to the Court of Appeal. The appeal failed. But it failed on a significantly different basis to the way the judge had originally decided the case.
The judge had found that as a result of the Human Rights Act 1998, the law of nuisance was capable of protecting privacy rights from overlooking by neighbours in an appropriate case. However, on a detailed review of all the circumstances, he concluded on balance that this was not such an appropriate case.
The design of the flats themselves gave rise to invasion of privacy greater than would have been the case of a “less glassed design”. He based his conclusion on the point that the claimants had voluntarily chosen to buy flats that were architecturally adventurous in an area where they had to put up with the whole package. They had voluntarily subjected themselves to circumstances of increased sensitivity.
He also held that there were reasonably effective remedial measures that could be taken, even extending to the use of net curtains. He also found that the introduction of restrictions by the Tate as to opening hours and discouragement of photography were effective in the circumstances.
In summary, the judge looked at a range of factors and his eventual decision that there was no actionable nuisance derived from a balancing exercise. A slight difference in the steps taken by the Tate, the nature of the flats, the location and the opportunities available to the owners might have produced a different result. The case illustrated the point that the outcome of litigation is a matter of factual assessment and nuanced judgment.
The Court of Appeal, whilst complimenting the judge for his care and thoroughness adopted a rather different approach whilst still dismissing the claim for nuisance.
They confirmed that nuisance involves a violation of property rights: whether by encroachment, direct physical injury or interference with quiet enjoyment. The question was whether the right to quiet enjoyment involved protection from being overlooked.
The Court of Appeal considered various cases, some of considerable antiquity, and decided that mere overlooking was not capable of giving rise to a cause of action in private nuisance. For instance, they cited Attorney-General v Doughty, (1752) 2 Ves.Sen. 453, where Lord Chancellor Hardwicke said:
"I know no general rule of common law, which warrants that, or says, that building so as to stop another's prospect is a nuisance. Was that the case, there could be no great towns; and I must grant injunctions to all the new buildings in this town …"
The court found that the relevant authorities showed that even in modern times the law does not always provide a remedy for every annoyance to a neighbour, however considerable that annoyance may be.
The court pointed out that overlooking is frequently a ground of objection to planning applications: any recognition that the cause of action in nuisance includes overlooking raises the prospect of claims in nuisance when such a planning objection has been rejected.
In summary the Court of Appeal considered that it would be preferable to leave it to Parliament to balance competing interests and formulate any further laws that are perceived to be necessary to deal with overlooking rather than to extend the law of private nuisance.
To further subtly undermine the judge, the court commented that if the law of nuisance had applied to overlooking, the court did not think that the balancing exercise carried out by the judge, looking at heightened sensitivity, reasonableness of conduct and potential remedial measures, would have been relevant.
Once again we see that predicting the outcome of a case where no-one is really to blame and there are meritorious arguments on both sides can be something of a lottery: litigation is indeed a matter of fine margins.
Three things not to overlook, as it were:
Understand why sensible lawyers deal in nuance not certainty
Extremely able judges are capable of coming to identical conclusions, for different reasons
Always consider the benefits of mediation
