Derek Inkpin from local solicitors Wiseman Lee looks at the concept of private nuisance and reflects on a recent court case which determined Tate Modern’s viewing platform invades the privacy of nearby flats
A 2023 Supreme Court decision (Fearn and others vs Trustees of the Tate Gallery) has highlighted the law in relation to ‘private nuisance’. What’s wrong with the following?
Your neighbour has an adjoining garage to his home which is used for the purposes of a business, where he continually operates noisy machinery.
Your neighbour owns kennels where there is continual barking, preventing you from enjoying the quietness of your home.
Your neighbour has a tree growing in his rear garden close to the flank wall of your house, which causes damage to your property.
The common denominator of these examples is the word ‘neighbour’. Whilst we still cling to the notion that an Englishman’s home is his castle, and that private nuisance protects a person’s use and enjoyment of their land, for a successful claim in tort to be brought for damages and an injunction, there must be a clear, unreasonable use of the land. Nuisance may therefore be caused by inaction on the part of the neighbour, such as escaping water or something which is intrusively unpleasant.
There are three elements of the tort of nuisance, which is either an act or omission, interference or damage. To succeed, a claimant must firstly own the land where they claim their use and enjoyment have been interfered with. However, the blocking of a pleasant view or a TV signal which has caused the nuisance has failed in court.
Whilst each case is judged on its own merits, it is perhaps easy to see that it cannot be predicted with certainty that a court case will succeed where private nuisance is alleged. One-off instances will not be enough but continuous activity that really harms the use and enjoyment of a neighbour’s property will likely succeed. The real problem with private nuisance is the apparent right of the judges to decide each case on its merits, as opposed to a set of concrete definitions of legal principles, which therefore makes it difficult for legal advisers to assist on how a particular case will be decided.
In the recent Fearn case, it was decided the owners of flats which can be seen from the Tate’s viewing gallery succeeded in their appeal where the Supreme Court held that visual intrusion into a home can be considered a private nuisance. Looking from a viewing gallery across the London skyline seems, on first thought, to be a normal enjoyable activity, but not, the court has decided, into someone’s home. However, the Fearn case is not over yet. It has been referred back to the High Court to determine the appropriate remedy. Watch this space!
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