The term "overlook" usually means to ignore or neglect, but in this ruling it was used in a more literal sense, as "to have a view from above" or "to see from a higher place." The decision in Fearn v. Tate Gallery Board of Trustees was handed down on February 1, 2023, by the Supreme Court of England. The full decision is available here.
In summary, the case involves an observation deck that is part of an extension to the Tate Modern art gallery, offering panoramic views of London. The owners of apartments in a neighboring residential complex—featuring a modern design with floor-to-ceiling glass windows—discovered that visitors to the observation deck could look into their homes. Consequently, they sued the famous national museum of modern art for the tort of “nuisance.” Traditionally, a “private nuisance” claim is filed when the plaintiff’s use and enjoyment of their real property is substantially and disproportionately interfered with by an object or activity. Initially, the claim was unsuccessful in the lower courts.
However, the Supreme Court granted the appeal by a 3-2 majority. The court held that, in principle, it is possible for a panoramic view to constitute a nuisance, at least in the sense that Lord Leggatt characterized the claim as “visual intrusion”: “The plaintiffs’ complaint is not that the top floor of the Blavatnik Building overlooks their apartments; nor is it that, in the normal course of events, people in that building look toward the plaintiffs’ apartments and can see inside. In fact, the plaintiffs made it expressly clear at trial that they do not object to being seen from the Blavatnik Building; what they object to is the Tate’s specific use of the top floor. They complain that the Tate actively invites the public to visit and look out from that vantage point in all directions, including at the plaintiffs’ apartments located just 30 meters away; that the Tate encourages this activity without interruption for most of the day, every day of the week; and that this has the predictable consequence that a very significant number—about half a million people—who visit the Tate’s observation deck each year peer into the plaintiffs’ apartments and take photos of them. To argue that this use of the defendant’s property cannot constitute a nuisance because “being looked at” does not fall under this concept is like arguing that, because ordinary household noise caused by neighbors does not constitute a nuisance, inviting a band to practice all day long, every single day in my backyard is not considered an actionable nuisance; or that, just because the smell of your neighbor’s food at mealtimes is something you have to tolerate, harmful odors from industrial production cannot be an actionable nuisance. The conclusion simply does not follow from the premise.”
Furthermore, the Court rejected the suggestion that the solution was for the plaintiffs to close their shutters or curtains, as well as the argument that the defendant’s activity, being indisputably carried out for the public good, would not give rise to civil liability.
The turning point of the ruling concerns what constitutes the normal use and occupation of land, which was deemed distinct in this case, as the nature and extent of the view into the plaintiffs’ apartments goes beyond “anything that could reasonably be regarded as a necessary or natural consequence of the common and ordinary use and occupation of the Tate’s land.” The court characterized the area where the apartments are located as “an urban part of south London used for a mix of residential, cultural, tourist, and commercial purposes.” As a matter of principle, an occupant in such an environment “can expect far less privacy than, say, a rural occupant might, and anyone living in a provincial town can expect to live quite side by side with their neighbors.” Nevertheless, the decision emphasized that no other viewing platform was found in that part of London; nor is the operation of a public viewing gallery necessary for the ordinary and customary use and occupation of the Tate Gallery’s land. Inviting the public to view the exhibits from an observation gallery is clearly a very specific and exceptional use of the land. Nor can it be considered a necessary or ordinary aspect of operating an art museum. Therefore, the Tate cannot rely on the principle of reciprocity, arguing that it does not seek more tolerance from its neighbors for its activities than they would expect the Tate to show toward them. In short, the Tate would be a “super-viewer.”
What can be gleaned from the ruling are many doubts and few certainties. Before we address the question of whether this emission is substantial or not, there is a theoretical premise underlying the tort of nuisance: A nuisance requires some emission encroaching upon the plaintiff’s property. A piece of land is a physical space. The rights pertaining to it concern the ability to use that physical space. If someone enters it without permission, this is considered in common law jurisdictions to be a trespass (the tort of trespass). However, if a neighbor creates noise, bright light, or an odor that impairs your physical ability to use that space, we are potentially dealing with a nuisance. The essence of this tort is the impairment of the enjoyment of the rights inherent in the occupation of the land. In this traditional sense, being “looked at” does not fall under this concept. It may be something that offends the neighbor or causes them distress; however, we do not have the right to demand that our neighbors refrain from doing things that bother us or from doing things we would prefer they not do. The landowner’s ability to use the land for any purpose they desire will not be affected in any way. In other words, how is the observation deck any different from any large window display at any attraction that draws crowds of people in any major city? Is it conceivable that Toronto’s famous CN Tower is now a nuisance, just like all stadiums, aquariums, and museums that have windows? Everyone with public viewing areas now runs the risk of being sued, and the issue will almost certainly have to be resolved on a case-by-case basis.
In response to this argument, those who support the Supreme Court’s decision assert that extreme cases of views from a higher vantage point can affect the enjoyment of property in the same way that noise does. Being observed can affect the use of physical space more than odors do. Loud noises can mean that one cannot enjoy the property for common purposes, such as rest or recreation. But, equally, there are perfectly normal uses that someone might want to make of their land that become less appealing or impossible because they are being watched. To give a simple example: many residents of an apartment building will be better able to take a nap at noon, despite the loud noise from the factory, than those who can do so knowing that half of London is watching them sleep!
Furthermore, if we extend the vague concept of a “super-observer” to other claims—even if future plaintiffs are defeated at trial because, in light of all the evidence, the wrongdoing is not sufficiently serious (would it require potential intrusion on 10 people, 100 people, 1 million people?), the threat of a lawsuit against any viewing platform will certainly be enough to deter a host of entrepreneurs. The tragedy will lie in the impoverishment of public spaces for the benefit of a group of property owners who wish to live in a glass bubble and then object to people looking at them.
In analyzing the practical difficulties of the injunction itself, the Supreme Court left it to the lower court to determine whether there is a public interest in maintaining the gallery with its 360-degree views. If the injunction is granted, it will be to block views on the south side using shutters or walls for as long as the viewing gallery is open. However, if the disturbance only arises after a certain level of use, then a permanent closure on the south side might be arbitrary. Another alternative would be to limit the number of visitors at any given time (below the current limit of 300) or throughout the day to the viewing area. If the preliminary injunction is denied, with regard to compensation for maintaining the status quo, the complications are no less significant: the monetary award will be prospective. Thus, how would the amount be specified in the judgment to bind subsequent owners? Would the financial basis be the decline in market values or in rental income from the affected units compared to others not burdened by the visual intrusion? No one knows how such a calculation would be made. The compensation could be so substantial that Tate might simply choose to accept the preliminary injunction requiring that the view from the south side be blocked.
No one can deny that the value of neighboring apartments will be reduced because they are visible from above. However, this is not the essence of the tort of nuisance. If there is consequential economic loss or other recoverable damages, there may be grounds for a claim for property damage. To draw a radical analogy: if my neighbor were a prominent Ku Klux Klan activist, this could also cause me terrible distress, lower the value of my property, and be something I would deeply prefer he not do—to the point of causing me to move. But it does not interfere with my physical ability to use the space to which I am entitled and, therefore, is not a private nuisance.
A distinct tort occurs when someone is observed in a private space when they would prefer that not to happen. For example, if someone installs a video camera outside a hotel room that I am sharing with my partner to spy through the curtains, the law may consider this a violation of the right to privacy. But it is not a tort simply because someone holds any title to the hotel room—that is, to the physical thing, the space, which is the object of the right. Once we begin to protect untitled rights—such as the right not to be watched (also known as privacy)—the justification for the claimant to protect a genuine proprietary interest is lost.
However, we must not forget that there are precedents in the Supreme Court. Lord Goff in Hunter v. Canary Wharf (1997)1 explicitly relied on the idea of a negative emission, leaving room for this possibility: “.In fact, for a private nuisance action to allege interference with the plaintiff’s enjoyment of his land, it will generally arise from something emanating from the defendant’s land. Such emanation can take many forms—noise, dirt, smoke, a noxious odor, vibrations, and the like. Occasionally, activities on the defendant’s land will be so offensive to neighbors that they constitute an actionable nuisance, as in Thompson-Schwab v. Costaki [1956],2 where the sight of prostitutes and their clients entering and leaving neighboring premises fell into this category. Such cases are, however, likely to be relatively rare.” Nevertheless, even in this exceptional case, it is the sight of offensive activities—which may be regarded as an intrusion—that is at issue, which is very different from someone simply looking at you. Furthermore, unlike noise, odors, vibrations, etc., cases involving sex shops and brothels should be treated as public nuisances, having nothing to do with the physical space to which the complainant is entitled.
Another precedent worth noting is the case of Motherwell v. Motherwell (1976)3, involving harassing phone calls. Drawing particularly on earlier “watching and besetting” cases, Clement, J.A., refers to the principle that acts that are otherwise lawful may become unlawful “by virtue of the circumstances in which they are carried out, such as time, place, extent, or manner of execution.” He concludes that “the frequent reference in the cases to disturbances emanating from the defendants’ premises merely reflects the circumstances of the particular facts before the court, not an intentional limitation on the scope of the principle” to permit a claim for nuisance based on invasion of privacy through abuse of the telephone communications system.
In other words, by updating the concept of “nuisance”—which, in civil law systems, would fall under the model of abuse of rights—we must ask: Does anyone think it is right for the Tate to build a viewing platform allowing hundreds of thousands of people to look into the adjacent apartments, thereby forcing those people to change the way they use their property? The evidence seems overwhelming that the public on the Tate’s viewing platform is destroying the apartment owners’ ability to enjoy their property. The living areas of the plaintiffs’ apartments are under constant observation from the Tate’s viewing gallery for much of the day, every day of the week; the number of visitors runs into the hundreds of thousands each year; and visitors frequently take photos of the interiors of the apartments and sometimes post them on social media. It is not difficult to imagine how oppressive it would be for any ordinary person to live under such circumstances—like being on display at a zoo. It is not surprising that the judge concluded that this level of visual intrusion would reasonably be regarded by the owner as a material intrusion into his home. In this case, the concept of the tort of substantial interference with use and enjoyment develops precisely to resolve problems like this.
In short, the problem with resolving “hard cases” through “reasonableness” is obvious. Once the court orders my neighbor not to look onto my property, this will require the implementation of a framework with strict limits on what is and is not acceptable in terms of interference. It is precisely for this reason—and because of all the arguments for and against the claim—that the decision under review was split 3–2.
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- Available here. A large tower was built in the Docklands area of East London, now known as One Canada Square. It was constructed by Canary Wharf Ltd. The tower stood 250 meters tall and was completed in late 1990. Its location was very close (less than 10 kilometers away) to the BBC’s main television transmitter, located at Crystal Palace. As a result, the tower interfered with television reception for a group of residents on the Isle of Dogs. This interference was corrected in April 1991 through the installation of a broadcast repeater on Balfron Tower. The lawsuit alleged private nuisance during the period in which the interference was experienced. 690 complaints were filed against Canary Wharf Ltd. on these grounds. In addition, 513 claims were filed against the London Docklands Development Corporation for damages suffered due to excessive dust emanating from the construction site. Some of the claimants were owners or tenants, but others had no property interest.
- Available here. In Chesterfield, on a prestigious street in the West End, two men named Frank and Harold Thompson-Schwab lived on that street with their family, including a young son. Blanche Costaki and a friend lived on the same street. Both were prostitutes. The plaintiff (Thompson-Schwab) became upset upon seeing the prostitutes regularly entering and leaving the defendant’s (Costaki’s) premises. They regularly saw the women meeting with many men, so they decided to seek an injunction from the courts to prevent such conduct, arguing that their enjoyment of their home was being interfered with by witnessing the defendant’s unlawful activity. They also argued that the area where they lived was a good one and that they viewed this type of activity as an interference with the “comfortable and convenient enjoyment” of the plaintiffs’ property. The courts also considered the idea that this type of activity could have an impact on the future morality of the street
- Available here. This case arose from a claim for damages and a request for a preliminary injunction against the defendant for harassing the plaintiffs in their home through abuse of the telephone system. The defendant was a relative of the plaintiffs and harassed them by making an excessive number of phone calls to the plaintiffs, sometimes as many as 30 calls per hour. The purpose of many of the calls to his brother was to defame his sister-in-law. The trial court awarded the plaintiffs nominal damages and issued an injunction preventing the defendant from harassing the plaintiffs by telephone or in person. On appeal to the Alberta Court of Appeal, the appeal was dismissed and the trial court’s judgment was affirmed. The Alberta Court of Appeal held that the defendant’s actions constituted an invasion of the plaintiffs’ privacy. The Alberta Court of Appeal held that the defendant’s actions constituted a real interference with the comfort or convenience of living by the standards of the ordinary person.