What Is A Private Nuisance?

On 1 February 2023, the UK Supreme Court clarified that certain uses of a modern building can constitute a private nuisance.

The decision has implications for property owners, occupiers, and developers and for the way that they use their land.

What most individuals do not grasp is that whilst you may wish to use your property in a completely unrestricted way, common law intervenes and sets out that the “man next door” needs to be able to enjoy their property too.

This is known as the law of private nuisance.

Private nuisance is usually caused by a person doing something on their own land, which they are lawfully entitled to do, but which wrongfully interferes with the ordinary use and enjoyment of the neighbouring land, for example, by causing physical damage.  However, damage is not always an essential requirement.

The damage or interference with the enjoyment of the neighbour’s land must be:

• Substantial or unreasonable.
• Can arise from a single incident or a “state of affairs”.
• It can be caused by inaction or omission and by some positive action.

The law also states that damage must have occurred, and there is no liability for damage that is not reasonably foreseeable (Cambridge Water Co. v Eastern Counties Leather plc [1944] 1 All ER 53).

Fearn v The Board of Trustees of the Tate Gallery [2023] was a landmark case regarding private nuisance. 

The facts of the case are that Neo Bankside was developed at the same time as a new extension to the Tate Modern was being created. This extension is now known as the Blavatink Building. The 10th floor of that building contains a walkway open to the public that affords 360-degree views of London.

At the Neo Bankside development, there are floor-to-ceiling windows that give residents views over London but also allow outsiders to see in.

The claimants, who were the owners of four flats on different floors of Neo Bankside directly opposite, complained of being subject to scrutiny by visitors to the Tate Modern.  Some visitors went so far as to wave to the residents in the privacy of their homes.  Lord Leggatt in the Supreme Court stated the situation for the residents was “much like being on display in a zoo”.

The residents complained to the Tate Modern, and some preventative measures were installed. However, they did very little to stop the visitors from overlooking. As a result, the claimants issued a claim against the Tate Modern in private nuisance, seeking an injunction to close off part of the viewing platform.

The Result

Both the High Court and the Court of Appeal found that the use of the viewing platform was intrusive but did not believe that it amounted to a nuisance.  Nominal damages were awarded, but no injunction was granted.

The claimants were not satisfied with the judgment and so took the matter to the Supreme Court. 

The Supreme Court ruled that the lower courts were wrong in not finding that there was a nuisance and thus allowed the appeal.

Implications

The decision of the Supreme Court has been welcomed by many.  However, some have criticised the decision as it will have an impact on the future development of cities and urban areas. 

However, it does suggest that owners of properties do need to take care to ensure the use of their property does not encroach on the neighbouring properties, for example by taking additional steps to prevent interference.

The decision is significant as it provides the lower courts a clearer outline for addressing new forms of interference.