Fearn v Tate [2023] UKSC 4: Supreme Court Disagrees About Nuisance Yet Again

08 February, 2023

Overlooking can be a Nuisance

The Supreme Court has at last delivered its long awaited judgement in Fearn v Tate [2023] UKSC 4. It has overturned the Court of Appeal, and held that overlooking into luxury flats from the neighbouring Blavatnik Building public gallery on the South Bank was a private (amenity) nuisance. 

Fearn v Tate [2023] UKSC 4: Supreme Court Disagrees About Nuisance Yet Again

Overlooking can be a Nuisance

The Supreme Court has at last delivered its long awaited judgement in Fearn v Tate [2023] UKSC 4. It has overturned the Court of Appeal, and held that overlooking into luxury flats from the neighbouring Blavatnik Building public gallery on the South Bank was a private (amenity) nuisance. 

Whether the remedy is to be an injunction, and if so on what terms, or damages, and if so on what basis, is to be determined by the High Court after a further hearing.

A Narrow Majority for asking “what is ordinary and normal?”:

The Supreme Court unanimously held that overlooking could in principle amount to a private  nuisance. But there the agreement ended. The majority of 3 held that the “objective reasonableness” test, articulated in earlier case law, was simply shorthand for asking whether an act was something other than “common and ordinary”. The 3 controversially considered this to be a principled approach which had greater explanatory force than the test of reasonableness, which they described as having “no explanatory power” in this context. 

The dissenting minority of 2, by contrast, in the powerfully reasoned judgement of Lord Sales, reaffirmed the test affirmed in Coventry v Lawrence/Lawrence v Fen Tigers [2014] AC 822 of whether the offending activity was something which ordinary people would consider it reasonable to have to put up with.

The Majority: Some General Principles

Lord Leggat for the majority articulated some general principles of private (amenity) nuisance:

(1) Only someone with a right to exclusive possession of buildings or land can sue in private nuisance. 
(2) Anything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land can be a nuisance.
(3) The underlying basis of private nuisance is the value of reciprocity and equality between landowners (“give and take” and “good neighbourliness”). 
(4) Harm must be substantial to be actionable. 
(5) Actions can only be brought by those whose own use of their land is general and ordinary. 
(6) Actions will succeed if the defendant’s use is not “common and ordinary”, but fail if the defendant’s use is “common and ordinary” and carried out in a reasonable manner. 
(7) Whether a use of land is “common or ordinary” must be judged by the characteristics of the locality.
(8) Building and demolition works are immune from private nuisance actions, provided that the manner of their undertaking is reasonable and steps have been taken to prevent “undue inconvenience” to neighbours.
(9) It is no defence that the claimant “came to the nuisance” whether by moving to a property or developing it after the defendant’s offending activity started.
(10) The public benefit of a defendant’s activity is no defence to a claim for nuisance, but may be relevant to remedy.

The Minority: ask “what would a normal person put up with?”

Lord Sales for the minority dissented from the majority’s reformulation of the test for private (amenity) nuisance. He noted that the then President of the Supreme Court, with whom all the other justices of the Court had agreed, had expressly endorsed the principle of reasonable user in Coventry v Lawrence/Lawrence v Fen Tigers. Lord Carnwath of Notting Hill had furthermore quoted with approval the academic Tony Weir’s formulation of the test for nuisance of asking:

“what objectively a normal person would find it reasonable to have to put up with”

Lord Sales disagreed with the suggestion that this was no more than a shorthand way of referring to a test of “common or ordinary” usage, and set out powerful reasons for disagreeing with the majority. 

These included the fairly straightforward observation that “reasonableness” as a legal test is commonplace in law, and has not been rejected as unprincipled or without explanatory power. Indeed, the majority had accepted that even where a use was common and ordinary, it had to be carried out reasonably. Even on the majority’s approach, then, the concept of reasonableness was often the determining principle. 

Lord Sales accepted that where a use was common and ordinary, and was carried out with appropriate regard for neighbours, then it would also satisfy the reasonableness test. But it was not only “common and ordinary” uses which could satisfy that test. An activity might be new and unusual, yet one whose harm it would be reasonable to accept.

Had the complainants behaved reasonably?

Lord Sales also agreed with Mann J that the extent to which a claimant could himself take reasonable steps to mitigate any interference caused by onlooking was relevant in a claim for private nuisance. 

The owners of the land at Neo Bankside had chosen to develop it by constructing striking buildings with a degree of openness, which exposed residents to visual intrusion. Mann J had found that the luxury flat dwellers living in the Neo Bankside development had failed to take modest measures which could have protected them from the alleged nuisance.  In the minority’s view, the approach to nuisance required a balancing of the interests of claimant and defendant. The claimants in this case had failed to take easy steps to reduce the problem of onlooking caused by the viewing gallery. The minority would have held that there was no nuisance. 

This approach was rejected by the majority, on the basis that the complainants were just putting their flats to their normal use as dwellinghouses. 

Article 8 ECHR not part of decisive reasoning

Article 8 of the European Convention on Human Rights (right to respect for home) played no part in the reasoning of either the majority or minority.

Some Reflections:

(i)    The decisive reasoning should be understood as confined to private amenity nuisance. 
(ii)    The unfortunate rejection by Lord Sumption in Coventry v Lawrence/ Lawrence v Fen Tigers of a presumption in favour of an injunction, even where nuisances affect people’s homes, has not been repudiated. Claimants will continue to have to bear the financial risk of losing their homes if they lose their claims in order to pay their opponent’s costs, without even the assurance that if they win, their homes will be relieved from whatever nuisance they find intolerable.
(iii)    The approaches of both the majority and minority impose on courts the duty to make judgements as to matters of considerable social, cultural and economic controversy, about which feelings inevitably often run high. It will therefore continue to be difficult to predict the outcome of litigation. 
(iv)    Similarly, the approach of the majority does nothing to make more predictable the outcome of conflicts resulting from the contemporary enthusiasm for mixed use areas, rather than zones for particular activities. 
(v)    The majority dismissed the argument that the claimants should have taken measures to protect themselves from onlooking. They also, however, blandly asserted that homeowners should wear ear plugs if their sleep is disturbed by noise from any “normal” use of neighbouring residential properties. They also suggested that homeowners close windows at “mealtimes” in order to avoid cooking smells which they “cannot stand”. It is easy to envisage many disputes about what is a “normal” residential use or noise, and when are “mealtimes”. Some will feel that the objective reasonableness test would provide a more useful guide for what is legally acceptable.
(vi)    In practice, however, a court’s unarticulated assessment of the public benefit of an activity is likely to continue to influence decisions, even if not on the face of judgments. For example, are the courts in reality as likely to  hold that  the NHS is  liable for the annoyance caused by ambulance sirens as they are to conclude that a local Amazon “fulfilment centre” is liable for the reversing sirens of its delivery vehicles? Will the well-established, economically and socially beneficial – but  previously isolated – rural factory not be more likely to defeat a nuisance claim brought by the owners of newly built luxury housing development than, say, a motor racing stadium?
(vii)    Potential litigants should reflect carefully before embarking on litigation in this area. They need the advice of those who understand the potential limitations of the application of these broad general principles, and the relevant nuances. They need to reflect on what unexpressed factors may in reality influence courts’ decisions.
(viii)    “The law, like the Ritz, is open to rich and poor alike” is a much loved observation of a judicial wag. But unlike at the Ritz, the losing litigant pays for not only what he himself eats, but also for the unknown delicacies which his gluttonous opponent has ordered from a menu whose prices are not known in advance to the loser. Only the rich – or those whose insurance policies provide generous litigation expenses cover – would be wise to embark on private amenity nuisance litigation
(ix)    Aside re Basement Works: The majority impliedly support the proposition that the undertaking of lengthy intrusive basement swimming pool/ screening room etc works cannot be a private nuisance, provided that they are carried out in ordinary working hours with conventional equipment. This raises the intriguing possibility that, for once, wealthy Belgravia residents may sometimes find themselves having to put up with more annoyance than social housing tenants in Bermondsey. The wealthier the area, the greater is the financial incentive to undertake prolonged subterranean expansions.

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