Francis McManus

In a recent case commentary in the Northern Ireland Legal Quarterly, the author discusses the Supreme Court case of Fearn v Tate Modern Galleries [2023] UKSC 4. In Fearn, the court was required to determine whether the defendants’ allowing visitors to the viewing gallery, which was situated at the top of the Tate Modern, so that they could stare into domestic flats, which were located close to the Tate, constituted a nuisance in law. The claimants' flats were of an unusual design, in that the external walls which faced the Tate were constructed entirely of glass, thereby allowing visitors to the Tate to observe the interior of the flats. By a bare majority, the court held that such a use of the defendants’ premises ranked as a nuisance.

Whereas the majority of the court upheld the traditional view that, for a claimant to succeed in a nuisance action, the use of the defendant’s land required to be unreasonable, and, in order to determine whether that use was unreasonable, one was required to ascertain whether the defendant’s use of land had caused substantial interference with the ordinary use of the claimant’s land. However, in turn, the claimant could not complain if the use which was interfered with was not an ordinary use of that land. The court held that the use of the viewing gallery had caused a substantial interference with the ordinary use and enjoyment of the claimants’ property and therefore was a nuisance.

The Supreme Court held that the trial judge had erred by failing to ascertain whether the Tate was making an ordinary use of its land. Where a person was using land, not in a common and ordinary way, but, rather, in an exceptional manner, it was not a defence to argue that a neighbour would not have material interference were it not for the fact that they occupied an abnormally sensitive property.

In turn, the Court of Appeal had erred inter alia, by deciding that it would be difficult to apply an objective test in deciding if there had been a material interference with the amenity value of the claimant’s land.

The majority of the Supreme Court concluded that both lower courts had erred by laying store by the fact that the use of the viewing gallery was of public benefit. However, public interest was a factor which required to be addressed only when the court was ascertaining whether to grant an injunction or an award of damages.

In the last analysis, the majority of the Supreme Court held that the use of the viewing gallery constituted a nuisance.

The author argues that the dissenting judgment of the court is to be preferred, over that of the majority, most importantly for the following reasons. It may be difficult, firstly, to determine whether the defendant’s use of land deviates from the norm, and therefore does not rank as a ‘common and ordinary’ use of land, and, secondly, it may prove difficult to weigh such use of land against that of the claimant. The author argues that the test of reasonableness as a test for liability in nuisance, as hitherto employed by the courts, is more conducive to clarity. The traditional test for nuisance also allows the law to develop both coherently and incrementally, by considering the changing norms of society and allows a wider range of factors to be taken into account by the court.