The owners of flats adjacent to the Tate Gallery’s viewing platform have won their “privacy” case against the gallery. In fact, the case was brought under the law of nuisance rather than in privacy.
By a majority of 3-2 and in a Judgment given by Lord Leggatt, the Supreme Court has comprehensively re-stated the law of nuisance and explained where the two lower Courts (which decided in favour of the Tate) went wrong.
Regrettably, the Supreme Court declined to examine the question of whether the Court should grant an injunction against the Tate or award the flat owners damages instead.
Decision
The reasoning of the majority can be summarised as follows:
- Nuisance is the interference with rights in or the enjoyment of land;
- Nuisance can be caused by anything – there is no conceptual limit as to what can constitute a nuisance;
- The phrase “unreasonable interference” with the rights or enjoyment of others has no special or explanatory meaning and is just another way of saying that the interference is unlawful.
Rather:
- The interference must be “substantial”. The Courts will not entertain claims for minor annoyances. The test of what counts as “substantial” is objective, to be assessed by reference to the standards of the ordinary or average person in the same position or to put it another way by reference to “the plain and sober and simple notions among the English people”. This is because the law of nuisance protects the utility of the land, and not the sensitivities of the people occupying it.
- The law affords greater protection to “ordinary uses” of land over “uncommon” or “extraordinary” uses. There are two aspects to this principle. First, “the common and ordinary use and occupation of land and houses may be done, if conveniently done” and such ordinary use will not constitute a nuisance. For example, building works, if done with due care and precautions, are not a nuisance. Second, one cannot increase the burden on their neighbours by putting their property to an extraordinary use.
Note that:
- There is no separate concept of “reasonable user”. It is not a defence to a claim in nuisance to say that the Defendant is using their land reasonably in all the circumstances, as has been suggested in some earlier cases.
- What amounts to the “ordinary use” of land is to be determined by reference to its locality. For example, noise or smells emanating from buildings in an industrial area may not be a nuisance in that area but may be in a residential area.
- It is not a defence to say that the nuisance is in public interest or that the nuisance was ongoing before the Claimant arrived.
The majority held that it was straightforward to apply those principles to this case. The viewing platform means that hundreds of thousands of people per year can, and do, peer in to and take photographs of the flats. The original Judge compared living in the the flats to being on display in a zoo. There can be no doubt that this interferes with the ordinary use and enjoyment of the flats. Further “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.” It did not matter for this purpose whether the museum or the flats had come first (though it was the flats) or that the viewing gallery was in the public interest as a major attraction.
The original decision
The Supreme Court found that the original trial Judge had misapplied the law in three main ways:
- The Judge had asked whether the viewing gallery was a “reasonable use” of the Tate’s land in all the circumstances, rather than whether it was an “ordinary use”.
- The Judge had concluded that the flats (with floor to ceiling glass windows) were sensitive to this kind of visual intrusion and as a result, the gallery did not amount to a nuisance. However, this failed to draw a distinction between the ordinary and exceptional use of land. If the neighbouring property had been other flats or offices and people were looking out of those windows in the normal way then that would not have been a nuisance. Lord Leggatt stated: “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.” However, this case was different because “the nature and extent of the 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”.
- The Judge had suggested that the owners could take steps to protect themselves, by lowering blinds or net curtains. The Supreme Court dismissed this notion, re-stating the principle that an owner should not have to alter the use of their property to abate a nuisance caused by another.
The Court of Appeal
The Court of Appeal had based its decision on the basis that “mere overlooking” could not constitute a nuisance. The Supreme Court held that there were various kinds of overlooking. “Overlooking” could mean the spatial relationship between one higher position and another lower one. That cannot constitute a nuisance. Similarly, the mere act of a neighbour looking at what is happening next door in the ordinary use of their own property may be an annoyance but cannot be a nuisance.
However, the Tate was inviting thousands of people to come and look from the gallery all day, every day of the week. Lord Leggatt said that this reasoning was “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”.
Public Interest
Finally, the Supreme Court suggested that the decisions of the lower Courts had been driven by policy reasons, and in particular the question of how public interest should be balanced against private property rights. The Supreme Court held that public interest can never be relevant to the question of liability, noting:
“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.”
However, the Court noted that property rights are not absolute and can be subordinated to the public interest, for example in a major infrastructure project:
“But it is fundamental to the integrity of any system of property rights that, in any such case, the individuals whose rights are infringed or overridden receive compensation for the 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.”
Remedy
The Courts have a discretion as whether to grant an injunction, or award damages instead. Historically, the Courts would refuse an injunction if the injury was considered small, damages would be an adequate remedy and it would be oppressive to grant an injunction. The Supreme Court examined this issue in Coventry v Lawrence (another case involving nuisance). The Court there held that the decision was an exercise of discretion that should not be fettered but “because of the divergent opinions of the Justices” there is little guidance as to how that discretion should be exercised.
This would have been an opportunity for the Supreme Court to provide such guidance, but it declined to do so and remitted the issue back to the High Court for determination. The suggestion appears to be that the Tate should put forward some proposals to mitigate the viewing, for example by installing louvres and, given such an indication, this issue may well settle before it comes back to Court.
Impact
The case is likely to generate significant interest in the short term – particularly as the media headlines suggest that it is a “privacy” case. This is not right. Rather, the Supreme Court is clear that ordinary instances of overlooking between neighbours are not actionable and nor is ordinary development. The crucial element is whether the land in question is being put to an ordinary or extraordinary use.
In the longer term, it is the question of “ordinary use” which is likely to generate further litigation. It is difficult to assess ordinary use by reference to locality in highly developed mixed areas, or where uses are developed incrementally over time and the Court provides little guidance on this issue.
Further, the issue of how the Courts should approach remedies in cases such as this will continue to plague the Courts and litigants alike. This is a missed opportunity for the Court to provide some guidance in this area. It will be interesting to see what the High Court decides on this issue, if the parties are unable to reach an agreement in the meantime.
Thomas Freeman is a Senior Associate Solicitor at Irwin Mitchell.
