Introduction
The tort of private nuisance is defined as an unlawful interference with a person’s use or enjoyment of their land (Read v Lyons & Co Ltd [1945]). Its purpose is to balance the conflicting interests of landowners. The law has long grappled with new forms of interference, from industrial noise to electronic signals. The Supreme Court's decision in Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4 is the latest and arguably most significant development in this area. This essay will critically discuss the statement that while Fearn confirms the flexibility of private nuisance, its extension to 'intrusive overlooking' and rejection of a 'public benefit' defence has created significant uncertainty. It will be argued that the statement is largely accurate. While the Court demonstrated the tort's capacity to adapt, the decision has left the boundaries of nuisance unclear and created practical difficulties for landowners and developers, particularly regarding the role of 'public benefit' in liability.
The Traditional Position on Overlooking and the Novelty of Fearn
Traditionally, the law of nuisance provided no remedy for being overlooked. In Hunter v Canary Wharf Ltd [1997] AC 655, the House of Lords established that private nuisance generally requires an 'emanation' from the defendant’s land, such as noise, smells, or vibrations. The mere presence of a building, even one that blocked a television signal, was not considered an actionable nuisance. This reaffirmed the principle from older cases like Bland v Moseley (1587), which stated there is no legal right to a view. The position was also supported by the Australian High Court in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, which held that observing a neighbour’s land from an elevated platform was not a nuisance.
The case of Fearn challenged this established position directly. The claimants were residents of flats in a modern, glass-walled development adjacent to the Tate Modern gallery. In 2016, the Tate opened a new extension, the Blavatnik Building, which featured a public viewing platform on its tenth floor, attracting hundreds of thousands of visitors annually. This platform offered panoramic views of London, but also a direct and clear view into the claimants’ apartments. Visitors would frequently look into the flats, with some taking photographs and making gestures. The claimants argued this constant visual intrusion was a private nuisance.
The Supreme Court, by a 3-2 majority, agreed with the claimants. Lord Leggatt, giving the majority judgment, held that visual intrusion could be an actionable nuisance. He reasoned that the core of private nuisance is the interference with the ordinary use and enjoyment of land. He distinguished between mere overlooking, which is a common and accepted part of urban life, and the particular use of the Tate’s land in this case. The Court found that operating a viewing platform which effectively invited the public to look into the claimants’ homes was an exceptional and abnormal use of the defendant’s land. It was not the 'common and ordinary' use of land but a 'particular and exceptional' one that created the nuisance (Fearn, at [72]). In this way, the Court demonstrated the flexibility of nuisance, applying its core principles to the modern reality of intense urban living and architectural design.
Creating Uncertainty: The Boundaries of Nuisance
The first part of the statement claims Fearn creates "significant uncertainty about the boundaries of the tort". This argument has considerable force. The majority’s distinction between 'ordinary' overlooking and 'exceptional' visual intrusion is a question of fact and degree, which inherently creates uncertainty. Lord Leggatt suggested that "the law of nuisance is not rigid" and can respond to new situations (Fearn, at [10]). However, this leaves many questions unanswered. Where is the line drawn between acceptable people-watching and an actionable nuisance? Is it the number of onlookers, the duration of the watching, or the intention behind the defendant's activity? The decision provides little guidance for future cases, potentially encouraging litigation over what might previously have been seen as neighbourly disputes.
This uncertainty was a central theme in Lord Sales’ dissenting judgment. He argued that the majority was not applying existing principles but was effectively creating a new cause of action to protect privacy, a role he felt was better suited to Parliament. He warned that this "extension of the tort of private nuisance would be a troubling, and in my view wrong, step to take" (Fearn, at [226]). Academic commentators have echoed these concerns. For instance, Donal Nolan (2023) has noted the difficulty in applying the distinction between ordinary and exceptional uses of land, arguing that the judgment "leaves a great deal to be worked out in future cases". This lack of a clear threshold for liability creates uncertainty for developers, architects, and public institutions who must now assess the potential for 'visual intrusion' in their designs and activities.
The Role of Public Benefit
The second part of the statement concerns the Court’s rejection of the argument that the Tate's viewing platform constituted a 'public benefit'. The Tate argued that the great public value of the gallery and its free viewing platform should be weighed in the balance when determining whether its use of land was reasonable. The majority, however, held that public benefit is not relevant to determining liability. Lord Leggatt stated that "it is no defence for a defendant to say that their activities are of benefit to the public" (Fearn, at [102]). He reasoned that the purpose of nuisance is to protect private rights, and it is unfair to expect an individual landowner to bear the cost of an activity just because it benefits the public.
This approach seemingly hardens a principle that had become blurred. In cases like Miller v Jackson [1977] QB 966, the public interest in a village cricket club was a factor in Lord Denning’s judgment, although he was in the minority on liability. More recently, in Dennis v Ministry of Defence [2003] EWHC 793, the court found that noise from RAF training jets was a nuisance, but because of the immense public interest in national defence, an injunction was refused and damages were awarded instead. The approach in Dennis suggests public benefit is highly relevant to the remedy. The Fearn majority agreed with this, stating that public interest can be a reason to award damages in lieu of an injunction. However, by excluding it from the initial question of liability, the Court created a stricter division. This arguably creates uncertainty over the "weight to be given to the defendant's activity". Defendants can no longer argue their public utility makes their interference reasonable; they can only hope it will persuade a judge to allow the nuisance to continue upon payment of compensation. This places public or charitable bodies in a difficult position, potentially liable for nuisance for an activity considered beneficial by society.
The issue of 'coming to the nuisance', raised by the Tate, was also considered. The Tate argued that the claimants knew about the viewing gallery when they bought their flats. This defence was rejected, with the Court reaffirming the orthodox rule from Sturges v Bridgman (1879) 11 Ch D 852 that it is no defence that the claimant came to the nuisance. The Court found the claimants were using their flats for their ordinary purpose as homes. This aspect of the judgment perhaps creates less uncertainty, as it confirms a long-standing rule. However, when combined with the rejection of the public benefit argument, it reinforces a claimant-centric view of nuisance that gives little weight to the nature of the defendant's conduct and its wider social value at the liability stage.
Conclusion
The decision in Fearn v Tate is a landmark ruling that confirms private nuisance is a doctrine capable of evolving to meet contemporary challenges. By recognising that intense, targeted visual intrusion can constitute a nuisance, the Supreme Court has demonstrated the tort’s flexibility. However, in doing so, it has also arguably fulfilled the prediction of the statement in the question. The judgment has created significant uncertainty about where the boundary of liability for overlooking now lies, leaving the distinction between ordinary and exceptional use to be determined on a case-by-case basis. Furthermore, by firmly relegating the consideration of public benefit to the remedial stage, the Court has altered the balance in nuisance law. While this may provide stronger protection for individual property rights, it creates a more precarious legal environment for defendants engaged in activities of public value. The statement is therefore a fair and accurate critique: Fearn shows the adaptability of the common law, but at the price of clarity and certainty in the law of private nuisance.
References
Cases
- Bland v Moseley (1587) cited in Aldred’s Case (1610) 9 Co Rep 57b
- Dennis v Ministry of Defence [2003] EWHC 793 (QB)
- Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4
- Hunter v Canary Wharf Ltd [1997] AC 655
- Miller v Jackson [1977] QB 966
- Read v Lyons & Co Ltd [1945] KB 216
- Sturges v Bridgman (1879) 11 Ch D 852
- Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479
Journal Articles
- Nolan, D. (2023) 'Nuisance by viewing: Fearn v Tate'. Law Quarterly Review, 139, pp. 363-369.
