Much of our English law of nuisance developed during our Industrial Revolution when times and attitudes to property rights were rather different. “What would be a nuisance in Belgrave Square would not be a nuisance in Bermondsey” [Sturgess v. Bridgman [1879]].
That was in the days before:
1) The Law of Property Act 1925
2) Planning, although planning itself is never a defence. Coventry (TARDC Promotions) v. Lawrence [2014] UKSC 13) or
3) Human Rights and the protection of rights the UK signed up to under that.
This area of law is also slowly developing. A frequent conflict as space in England and Wales becomes so precious in an increasing population between (a) ”my room with a view” against (b) “I want to be alone” or at least more privacy than the participants in Love Island.
The Tate
In Fearn & Others v. Board of Trustees of the Tate Gallery [2023] UKSC 4. The two collided which in the ultimate analysis was people had “two much of a view”. The case started with a request for an injunction under the law of nuisance to prevent customers in the Tate’s Blavatnick Building of ten floors using its viewing platform. The applicants were the flat owners opposite built mainly of steel and glass so it was said all could be seen. By the Tate from its viewing platform which also had panoramic views across that part of London. The Tate receives about 500,000 to 600,000 customers a year. This case has been long running from the decisions in the High Court at 2019 EWHC 328 then the Court of Appeal at 2020 EWCA Civ 104. There have been arguments about the Human Rights Act along the way. The latest and final decision was by a five-judge court and a majority decision of 3 to 2. The majority view was that it is no answer to legal nuisance for the offending landowner to say he is using his land with planning and in the public good. That could not ignore the slowly developing common law of Nuisance. The test and standard is the assessment by the ordinary person, whether there is a substantial interference. The viewing platform was not an ordinary use but an invitation to view. The ordinary person would consider the level of intrusion and if a substantial interference with the ordinary user and enjoyment of the flat owner’s homes. They were entitled to an injunction and in the alternative substantial damages. The Court of Appeal had given a lot of thought to the old case of Victoria Park (below). That case was considered one which did not address visual intrusion para 99. In the Australian case of Victoria Park Racing & Recreation Grounds Co Ltd v. Taylor [1937] 58 CLR 479. The racecourse owners sued. The Defendant had erected on purpose a tower deliberately to look over the track so that when racing took place it could broadcast for financial gain to the racetrack owner’s detriment the horse racing. By a 3:2 majority the claim by the racecourse owners was dismissed. As Latham CJ said “any person is entitled to erect a higher fence”. In the Tate the argument was put up curtains.
It was more than time for our senior court to look at the moving common law of nuisance. They made a start under the headings “Overlooking” at 100-109, “Planning” 109-10, “Invasion of Privacy” 111-113 and the general argument over injunction or damages 111-113.
Conclusion
The need for a carefully and well-argued case concerning real issues of nuisance in the modern world was overdue. Though a case with specific facts it will be our new baseline on which to consider similar nuisance cases in the future.
This is my reading of the cases above offered as a starting point. If I can help further, please contact us at
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This article is the copyright of Hassall Law
3.2.23