Private Nuisance: The UK Supreme Court Take a View

Can “Intrusive Viewing” into Neighbouring Premises Amount to a Private Nuisance?

The Supreme Court’s unanimous answer to this question can be summarized briefly: “Yes”. Lord Leggatt JSC went so far as to assert: “there is no conceptual or a priori limit to what can constitute a nuisance.” A proposition that he explained more fully two sentences later: “Anything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land is capable of being a nuisance.”^[8] He cited support for this in his explanation as to why emanations of tangibles and intangibles are potentially actionable (“In all such cases … the basis of the claim is not the physical invasion itself but the resulting interference with the utility or amenity value of the claimant’s land”) and a miscellany of cases which did not involve any form of invasion (withdrawal of support; obstructing access; obstructing an acquired right to light or airflow; preventing connection to a public sewer; and “offensive sights”).^[9]

Whilst Lord Leggatt went on to re-state the “core principles of private nuisance”, he went no further in glossing the key concept of “material interference” “with the utility or amenity value of the claimant’s land”. Arguably, this concept will require further refinement. Presumably, for example, sinking the ferry (owned by a third party) that the claimant needs to use to obtain convenient access to her insular summer house is not a private nuisance no matter how significantly it impedes the claimant from making use of her land. But, if so, the most obvious explanation may be that to constitute a private nuisance an interference with “enjoyment of rights in land” has to operate on the claimant when she is on the premises concerned and attempting to make use of them (or operate on someone else on the premises attempting to make use of them with the claimant’s consent),^[10] and if C was resident in her summer house before the sinking then absence of the ferry service would not reduce the range of things she could do whilst on the premises. This explanation, however, would suggest that some of the entries in Lord Leggatt’s miscellany (e.g. obstructing access) are not straightforward examples of “interference” at all: they do not operate on claimants when they are on their premises.^[11] Clearly, however, this level of refinement was not necessary in order to reach a decision in Fearn: “being stared at” by thousands of visitors operated on the claimants’ premises, and did not involve any “physical invasion”.

Lord Leggatt did not allege that the Court of Appeal, which had rejected the claim, had fallen prey to any “physicalist heresy”, such as that liability in private nuisance requires a defendant who can be held responsible for a crossing of the boundary onto the claimant’s land by objects (e.g. tree roots), substances (e.g. water), particles (e.g. smoke; odours, bright light) or energy (e.g. sound; vibrations; bright light), or, in circumstances where the claimant can establish the appropriate right to non-obstructed passage, an obstruction of people, objects, particles or energy.^[12] Rather he took the court below to have decided that “overlooking” was “one of a small number of specific types of interference with the use and enjoyment of land which are excluded from the scope of the law of private nuisance as a matter of legal precedent and policy.”^[13]

Lord Leggatt’s rejection of this part of the Court of Appeal’s decision involved him drawing a distinction between “overlooking” and operating a public viewing gallery. With respect to “overlooking”, a term which he took normally to refer to constructing a building so as to create “a spatial relationship between two places such that one affords a view, from a greater height, of the other”, he agreed that this could not amount to a private nuisance: but he believed this was because the law of England and Wales contains a general liberty (as a matter of private law) to build any structure you please on your own land.^[14] Lord Leggatt also believed, however, that an ordinary act of “merely looking at what is happening on neighbouring land” could not be actionable: here, though, the explanation was that neighbours have to put up with such minor annoyances “under the rule of give and take, live and let live”.^[15] But operating a public viewing platform from which hundreds of thousands of people peer into the claimants’ flats was, for Lord Leggatt, clearly distinguishable from mere “overlooking” and occasional looking: the gulf was similar to that between “household noise” and “inviting a brass band to practice all day every day in my back garden”.^[16]

From the perspective of “legal precedent”, Lord Leggatt thought there was no judicial authority to support the proposition that visual intrusion cannot amount to a nuisance “no matter how constant and oppressive”:^[17] the primary authorities from English courts went no further than opining that “the construction or alteration of premises so as to provide the means to overlook neighbouring land … is not actionable in nuisance”, a proposition with which Lord Leggatt agreed;^[18] the famous Australian case of Victoria Park Racing and Recreation Grounds Co Ltd v Taylor,^[19] where liability was not imposed, was treated as one where the defendants were interfering with the claimant’s business by broadcasting commentary to the races taking place on the claimant’s racecourse, rather than one where the defendants were having an effect on the amenity of the land through the commentator’s looking at what was happening there; and cases from New South Wales and British Columbia had imposed liability on defendants who had directed surveillance cameras at neighbouring property.

With respect to “policy”, the arguments assessed (and then rejected) by the Supreme Court were: (i) it would be unusually difficult to draw the line between actionable and non-actionable visual intrusion; (ii) disturbance by visual intrusion would be better regulated by administrative decisions applying planning law, rather than by the private law tort of private nuisance; and, (iii) the essential wrong was one of invasion of privacy, so the necessary balances might be better set by the legislature. Lord Leggatt (and the minority judges who did not accept Lord Leggatt’s general re-statement) rejected all three of these arguments as reasons for creating a special exception for ocular intrusion:^[20] (i) The difficulty of allocating hard cases in relation to a borderline was a “deeply unpersuasive” reason for refusing to impose liability in clear cases, and there was no obvious basis for thinking that identifying unacceptable degrees of staring or surveillance would be more difficult than identifying unacceptable levels of noise or smells;^[21] (ii) The purpose of planning law is to “control the development of land in the public interest”, and it is consequently not an appropriate mechanism for establishing or protecting private rights;^[22] (iii) “Invasion of privacy” is a broad description for a catalogue of “legally distinct wrongs”, and the fact that surveillance and publication on social media of photographs of people’s homes may fall under the broad description is not a reason to deny that: “An important aspect of the amenity value of real property is the freedom to conduct your life in your own home without being constantly watched and photographed.”^[23]

Re-stating the Fundamental Condition for Liability in Private Nuisance

Having rejected the physicalist heresy,^[24] precedent, and public policy, as reasons for excluding “mass staring” from the scope of private nuisance, why did the Supreme Court need to re-state the fundamental condition for liability in the tort? The answer is that the judge at first instance, Mann J, had accepted that “mass staring” could be a private nuisance, but had nonetheless rejected the claims; the majority in the Supreme Court had to re-state the fundamental condition to explain where they believed Mann J had fallen into error.

Lord Leggatt’s diagnosis was that Mann J had misunderstood the fundamental condition of liability. He had mistakenly “thought that an overall assessment was required of what - in an undefined sense - is ‘reasonable’ in all the circumstances”.^[25] In more detail:

the judge applied the wrong legal test by framing the question he had to decide as ‘whether the Tate Modern, in operating the viewing gallery as it does, is making an unreasonable use of its land’. The judge thought that this required an overall assessment bearing in mind the nature of the Tate’s use of its land, the character of the locality and ‘bearing in mind that the victim is expected to have to put up with some give and take appropriate to modern society and the locale’.^[26]

For Lord Leggatt the fundamental condition of liability was not the “reasonableness” of the defendant’s use of land, which he thought was likely to collapse into an assessment of “whether the defendant’s land use is of public benefit”,^[27] but depended on “principles, settled since the 19th century, which run through the cases … [and] provide clear standards rooted in values of reciprocity and equal justice.”^[28] Within these principles, the crucial conceptual pivot was a divide between “common and ordinary” uses of land and “special and unusual” uses:

This principle of reciprocity explains the priority given by the law of nuisance to the common and ordinary use of land over special and unusual uses. A person who puts his land to a special use cannot justify substantial interference which this causes with the ordinary use of neighbouring land by saying that he is asking no more consideration or forbearance from his neighbour than they (or an average person in their position) can expect from him. Nor can such a person complain on that basis about substantial interference with his special use of his land caused by the ordinary use of neighbouring land. By contrast, a person who is using her land in a common and ordinary way is not seeking any unequal treatment or asking of her neighbours more than they ask of her.^[29]

He presented four subsidiary elements to elaborate on this central device: (i) There is no liability unless interference exceeds “a minimum level of seriousness to justify the law’s intervention”; this level is set by drawing on “the standards of an ordinary or average person in the claimant’s position”; what would such a person find sufficiently “real”, “substantial”, “material”, or “significant”?^[30] (ii) “[W]hat is a ‘common and ordinary use of land’ is to be judged having regard to the character of the locality.”^[31] Perhaps: “is the use of land one which is in accordance ‘the established pattern of uses’ in the locality”?^[32] (iii) There is a “general rule at common law that anyone may build whatever they like on their land, unless this violates an agreement not to do so or an acquired right to light or to a flow of air through a defined aperture”.^[33] Indeed, Lord Leggatt pushed the proposition that “the physical attributes of a building cannot themselves give rise to a claim … in nuisance” to a surprising point: “Although the question does not arise for decision in this case, I would not wish to rule out the possibility that there could be extreme cases where the design or construction of a building is so unusual and far from anything that could actually be expected that it might do so.”^[34] One suspects that cases about leaky gutters, and other features of buildings that channel rainwater towards a neighbour’s land, were not drawn to the Court’s attention.^[35] (iv) The principles are applied without regard to any self-protective measures that a claimant could have taken, such as shutting a window to exclude noise.^[36]

Lord Sales, whose judgment did not gain the support of a majority, maintained that the fundamental condition of liability is “reasonableness”, an “objective principle” reflecting “reciprocity”, “compromise”, and a balance between the competing interests of neighbouring users of land.^[37] He identified three concerns with respect to Lord Leggatt’s over-reliance on a divide between “common and ordinary” uses of land and “special and unusual” uses: (i) authority suggests a defendant will avoid liability for the consequences of “common and ordinary” uses of land only when these are “conveniently done”, implying that a defendant may sometimes have to modify even how she uses her land in a “common and ordinary way”;^[38] (ii) the “common and ordinary”/“special and unusual” divide provides no guidance as to how a court should deal with disputes between a defendant whose “special” use of land is affecting a claimant’s “special” use of land,^[39] and may tilt the balance of the tort too far against those who choose to use their land in innovative ways;^[40] (iii) attaching undue significance to characterization of a defendant’s use of land as “special and unusual” may lead to an inappropriate answer to the second fundamental question in the case, since it may lead to marginalization of the question whether the design of the claimant’s building has contributed to the problems, and whether the claimant could have reasonably been expected to take steps to mitigate the problems. These concerns, however, were insufficient to convince a majority: Lord Leggatt’s position has become the law in England and Wales.^[41]

Common and Ordinary/Special and Unusual

Under this sub-heading I want to investigate three questions relating to the “common and ordinary/special and unusual” pivot relied on by the majority: (i) must a claimant actually be using her land in a “common and ordinary way” in order to claim? (and, the matching question for a defendant seeking to claim a defence based on her use being “common and ordinary”); (ii) can the question of what uses fall on either side of this divide be answered without attention to the advancement of any public interests? (iii) can “common and ordinary” uses be privileged without jeopardizing a commitment to “equality”?

How, If at All, Should Article 8 of the European Convention on Human Rights Influence Development of the Tort of Private Nuisance?

Lord Leggatt’s answer to the questions about the scope of the tort of private nuisance made it unnecessary for him to express an opinion: “There is no need or justification for invoking human rights law when the common law has already developed tried and tested principles which determine when liability arises for the type of legal wrong of which the claimants complain.”^[59] Given this, I will mention only one related point, stimulated by Lord Leggatt’s uncompromising conceptualization of the relationship between private property and the public interest. The claimants in Fearn invoked their Convention Rights to support a perceived need to extend the tort of private nuisance, but, ironically, their success, and the prioritization of the “common and ordinary” within the tort, may mean that defendants are more likely to need to invoke Convention Rights in future. If, for example, the combination of “special use” and the social convention against dawn noise is sufficient to prohibit the monastic order’s early bells, the order may have to turn to their “right to religious freedom” as an antidote. Ernest Weinrib has pointed out the significant function that “fundamental rights” might play in orienting a state’s “private law towards the actualization of constitutional values”: “under the dignity function, constitutional rights give rise to a set of principles about human dignity to which private law should give a maximally concordant effect.”^[60] To put the point more practically, rules offering no protection for uses of land that are not “common and ordinary”, or imposing liability whenever the source of interference is a use of land that is “special and unusual”, might offer insufficient respect for the human dignity of some people. For those who prefer concrete examples, perhaps, in a modern, heterogeneous society, the monks’ bells should remain unmuffled, even if this requires the majority in East Oxford to wake up earlier than the conventional norm, and, similarly, the law of tort should class as a private nuisance the performing of “religiously offensive” acts in proximity to a place of worship, even if that form of worship is far from being “common and ordinary”.

In Applying the Tort of Private Nuisance, How, If at All, Is It Relevant That the Design of the Claimant’s Premises Has Made the Interference Possible, or Amplified It, or That the Claimant Could Have Used Some Physical Means (Such as Blinds) to Reduce the Interference?

This question divided the Court. Lord Sales, whose opinion did not secure majority support, suggested that in setting the “objective reasonableness” standard a judge should take into account that the way in which a claimant’s buildings were designed might have amplified any interference, and should also consider how far “good neighbourliness” might be advanced though a claimant taking steps to minimize interference (e.g. by using a blind) rather than through a defendant altering its activities. By contrast, Lord Leggatt insisted that: “It is not a defence that the defendant’s activity would not have caused a nuisance if the claimant’s building had been differently constructed or designed.”^[61] Thus Lord Leggatt rejected the relevance of the trial judge’s finding that the viewing gallery would not have interfered with the claimants’ enjoyment of land to an intolerable extent if the residential building had been designed with a more usual ratio of wall to window, and if the claimants had not chosen to convert areas intended as “glazed balconies” into general living space.^[62]

Similarly, Lord Sales stated: “In striking the appropriate balance between the competing property interests, I can see no good reason why one should leave out of account reasonable self-help measures which might be available to the person complaining about visual intrusion.”^[63] Whilst, for Lord Leggatt, it was only acceptable to expect a claimant who was disturbed by an ordinary use of land, and who would consequently have no claim, to resort to self-help: “What is not acceptable is to place the burden on the claimant to mitigate the impact of a special use of the defendant’s property. To do so is inconsistent with the principle of reciprocity that underpins the law of nuisance.”^[64]

In both scenarios we can observe the logical consequences of the tension between Lord Leggatt’s general approach, reliably protecting “common and ordinary” uses against “special and unusual” ones, and Lord Sales’ general approach, of striving for a “reasonable compromise”. In a situation where a defendant’s unusual noise-making activity was disturbing the claimant’s “ordinary” domestic living, and where the cheapest route to allowing both property owners to continue to enjoy their land would involve the claimant installing sound-proofing and double-glazing, neither the approach of Lord Leggatt nor that of Lord Sales would preclude that position being reached: but in Lord Leggatt’s legal system the defendant would be liable to the claimant, and the position would only be reached through negotiation of a settlement (such as one where the defendant paid for the necessary work, and perhaps also a fee for the inconvenience) or the court being persuaded that an injunction should be refused and a sum of damages (perhaps equal to the cost of the work, and a fee for the inconvenience) awarded in lieu; whilst in Lord Sales’ legal system the defendant might avoid liability (or, at least, reduce it) by attributing responsibility to the poor design of the claimant’s building or the claimant’s failure to take self-help steps that might reduce the need for a more costly solution.

The word “burden” – in Lord Leggatt’s insistence that it “is not acceptable is to place the burden on the claimant to mitigate the impact of a special use of the defendant’s property” – may be worth attention. It was noted above that authority suggests a defendant will avoid liability for any substantial effects on her neighbour of “common and ordinary” uses of land only when these have been “conveniently done”,^[65] and what this appears to mean is that a defendant should not require a claimant to put up with, for example, the intrusive effects of noise from a washing machine, if these could easily be ameliorated by, for example, moving the machine against a different, thicker, party wall. Clearly, this principle invites the question of what sort of “burden” a defendant should be required to put up with to benefit her neighbour, even when the disturbance is associated with a “common and ordinary” use; at what point she can object that the necessary change to the location of the washing machine involves more than a “convenient” adjustment? Once that point has been identified, it might seem attractive to promulgate a symmetrical principle: a claimant should forfeit the right to complain about an interference with her “common and ordinary” use if she could have avoided that interference through a “convenient” adjustment: if vibrations from the defendant’s washing machine are causing the needle on the claimant’s record-player to “jump”, and this could not be prevented by a “convenient” move of the washing machine, but could be avoided by a convenient move of the record player, it might seem odd to insist that only the defendant should ever be obliged to move their equipment. From here, the follow-on question is whether a defendant using their land in a “special and unusual” way should also be able to avoid liability for interferences that could be prevented by such “convenient” adjustments by the claimant? Arguably, a positive answer could be given here without challenging Lord Leggatt’s basic premise that “special and unusual” users should not be able to demand “special and unusual” sacrifices (just routine “convenient” ones) from their neighbours. This said, such a minor gloss on Lord Leggatt’s reasoning would not have been sufficient to lead to a different outcome in Fearn; reducing the size of the window apertures to the extent necessary to eliminate any objectionable effect from the mass staring would clearly have required far more by way of sacrifice than moving a record player or a washing machine.^[66]

An Addition to the Canon?

No doubt there are now – even in England and Wales, let alone the multiple jurisdictions of the United States – far too many cases which have decided significant points of law for any law teacher to present them all to their students. What factors, then, should influence judgements as to whether particular cases are “canonical” and should be designated “essential reading”. Four benchmarks, for a law teacher rather than a professional, might be: are the case’s facts memorable and easily summarized, how far will it be a foundation for further development in the law, does it reveal any conflict between the judges as to the best path for the law, and is the result (or, at least, the route to the result) likely to remain persistently contentious. Where a case gets a positive rating on each of these points then it is likely to be useful, to both teacher and their students, in developing knowledge about legal rules, how they can be generated and how they can be used. Using that scorecard, rather than one which assesses whether it provides an attractive re-statement of private nuisance law, I recommend Fearn for induction into the canon.