Introduction
In Fearn v Trustees of the Tate Gallery, the Supreme Court had to consider whether the creation and operation of a viewing gallery which allowed visitors to see into flats in the nearby Neo Bankside development amounted to a nuisance.
Some visitors to the viewing gallery looked into the flats, waved to residents and even took photos which they later posted to social media. The residents complained about this intrusion into their privacy.
The Trustees denied that the viewing gallery created a nuisance. They also argued that the claimants had brought the problem on themselves by having floor-to-ceiling windows, making visual intrusion more likely.
The majority of the Supreme Court found in favour of the Neo Bankside residents and the case was remitted to the High Court to determine the remedy.
Important legal issues
First, the judgment establishes that visual intrusion can be a nuisance ([16]).
The judgment emphasizes the importance of asking whether the parties’ use of their land falls within the ‘common and ordinary use’ of that land ([25]).
The Supreme Court decided that the viewing gallery was not such a use ([74]). It was not simply that people could look out of the windows of the gallery and into nearby properties. This, of course, is part and parcel of living in a densely-populated urban environment. Perhaps the difference in this case is that the gallery brings together very large numbers of people with the specific intention that they will look out.
The floor-to-ceiling windows of the Neo Bankside flats, by contrast, did not take the use of the flats outside that which was ‘common and ordinary’ ([79]).
Since the Tate Gallery use was not ‘common and ordinary’, while the reverse was true of the use of the Neo Bankside flats, it was irrelevant that the flat-dwellers could take measures to protect themselves from visual intrusion but had not done so ([84]).
Whether a use of land is ‘common and ordinary’ is to be determined having regard to the character of the locality ([38]).
Commentary on the implications for developers
There has been no shortage of blog posts by legal professionals looking at the practice implications of the judgment in Fearn. It might encourage neighbours to explore whether they have a nuisance claim based on visual intrusion (see here). Developers working in populated areas may be fearful of an increased risk of a nuisance claim but only schemes that fall outside the ‘common and ordinary use’ safe zone are at risk (see here). Developers might mitigate their risk through the use of screening or other measures to reduce the risk of visual intrusion (see here).
Other commentary
Michael Crawford, in the Oxford Law Blog, commented that there was something to be said for the outcome in the Court of Appeal which rejected the nuisance claim: a rule that there was no liability would establish a clear and simple starting point for welfare-improving negotiations between the parties (see here). On this view, the UK Supreme Court decision that there may be liability means that litigation is needed before negotiations can take place.
Lord Leggatt expressly rejected the idea that the Supreme Court were guilty of deferring excessively to the desires of the wealthy owners of the Neo Bankside flats ([7] and [38]). Emma Lees, however, commenting on the Court of Appeal decision, points out that there was a political aspect of the case since it decided who would have access to a very special view of the Thames.
Michael Lower