The Code of Hammurabi was composed in ancient Babylon, circa 1755-1750 BC. Unsurprisingly, it contains provisions dealing with disputes between neighbours. Squabbles between people occupying adjoining land arise pretty constantly in all settled societies, and no doubt have been into the mists of prehistory. Within the Common Law jurisdictions, the tort of nuisance is one mechanism used to balance conflicting rights in such disputes. In essence, this tort (civil wrong) applies where the defendant is interfering with the claimant’s lawful use and enjoyment of their land.
Drawing boundaries around this tort can be complicated, because living alongside other human beings means putting up with the noise, spectacles and even smells that they generate. You might not love the fact that your neighbour cuts his grass wearing only flip-flops and a pair of speedos, but you can’t sue him just because you don’t like the sound and scent of the lawn-mower, or find the sight of a blob-fish in trunks a bit distasteful. So, at what point does everyday irritation tip over into unlawful behaviour?
In most cases, causing some kind of tangible damage will attract liability. There are exceptions where the property being damaged is abnormally delicate, and the defendant’s activities would not generate problems for the average occupant of the land or premises (e.g. In Robinson v Kilvert 1889, the plaintiff was storing a special species of paper which reacted badly to levels of heat which ordinary paper and other goods would have tolerated quite happily, and the court concluded that this should not be made the defendant’s problem) but by and large, material harm will cross the threshold into liability. Much more complex however, are the cases where the nuisance is intangible. An interesting example of this came before the Supreme Court in Fearne and Others v The Board of Trustees of the Tate Gallery.
The claimants in this case lived on the upper floors of the Neo Bankside residential and commercial development. The luxury flats on the South Bank of the Thames have floor to ceiling glass and boast spectacular views out over London. The design means that they are flooded with natural light and without doubt must be a stunning place to live and work. The Tate Modern have a nearby building with a viewing gallery, allowing visitors a 360 degree panoramic view of the city, and a tiny taste of what it must be like to occupy a penthouse on the South Bank. Between 500,000 and 600,000 people per year take advantage of this opportunity.
Unfortunately, a significant minority of these tourists do not confine themselves to looking out over the dome of St Paul’s and the city vista, but peer into the claimants’ homes, starring at them like pet sea-monkeys in a tank. As if this were not bad enough, some visitors enhance their gawping capacity with binoculars, or take pictures of the flats and their inhabitants, posting these on social media. Efforts by the Tate Modern to prevent such behaviour via signs and the intervention of security guards have been about as effective as the King Cnut tidal management policy, leading the claimants to bring an action in nuisance.
The Supreme Court was divided three to two in its response. Lord Leggatt, with whom Lords Reed and Lloyd-Jones agreed found in favour of the homeowners’ claim. In his view, language of “reasonableness” was inappropriate in the context of nuisance, at least for anything other than a shorthand way of describing the test for “unlawful” or “undue” use of land by a defendant. The correct question was whether the defendant’s conduct was outside of the ordinary for occupants of land in the relevant area, and if so, whether they caused a substantial interference to the claimant’s ordinary use and enjoyment of the land. On the basis that allowing hundreds of thousands of people access to a viewing platform could hardly be described as a usual activity, and that the impact of the gawking hoards on the property for residential purposes was substantial by any measure, the action in nuisance had to succeed. Whether or not it was “reasonable” for an art gallery to provide this kind of facility, or it was of public benefit, was completely immaterial.
There is a certain logic to the point that philanthropic motives should not be a defence to harming your neighbour’s interests. However, as the dissenting judge Lord Sales noted (with Lord Kitchin in agreement) it was the claimant’s choice to live with floor to ceiling glass, and not adopt curtains or other screening measures. Lord Leggatt had dismissed this consideration, on the basis that the Common Law recognised the right of property owners to build however they choose, within extremely wide parameters, and that it is well established law that if the defendant is causing an actionable nuisance, it is not the responsibility of the claimant to take steps to ameliorate the situation. Provided that the claimant is not abnormally sensitive, the nuisance is the defendant’s problem.
Lord Sales however adopted a fundamentally different approach to the nature and function of the tort of nuisance. He concentrated on its core purpose of balancing the competing interests of neighbours, where parties in conflict both had a right to benefit from their property. On this analysis, some give and take between neighbours is required, and it is fair to expect residents to take some basic measures to prevent third parties staring into their home if this bothers them. In other words, if you opt to live in a glass box, and shun all modes of shielding, you are partly responsible for your own sea-monkification.
The case is clearly a finely balanced one, and goes to the heart of the purpose of private law. At what point can be expect the legal framework to step in and regulate the behaviour of people around us? What should we be asked to give up for our neighbours, and vice versa? Interestingly, one thing that both the Lord Leggatt and Lord Sales agreed upon, was that human rights law could not provide an answer in this instance. More than one answer could be acceptable from a human rights perspective, it is ultimately a matter of what law through society determines to prioritse.
Related Links
Fearne v Others v Trustees of the Tate Gallery [2023] UKSC
https://www.supremecourt.uk/cases/docs/uksc-2020-0056-judgment.pdf
Neo Bankside https://www.neobankside.com/penthouses/A1001-landing
