Fearn v Board of Trustees of the Tate Gallery

LORD LEGGATT (with whom Lord Reed and Lord Lloyd-Jones agree):

A. INTRODUCTION

1. On the top floor of the Blavatnik Building, which is part of the Tate Modern art museum on Bankside in London, there is a public viewing gallery. It is a popular visitor attraction. From the viewing gallery visitors can enjoy 360-degree panoramic views of London. When the claim was brought, about 5½ million people were visiting the Tate Modern each year and, of them, several hundred thousand (between 500,000 and 600,000 on one estimate) visited the viewing gallery, with a limit of 300 people at any one time. Entry to the museum and the viewing gallery is free but the top floor of the Blavatnik Building is also available to hire for external events. Such events are very important financially to the Tate Modern because they bring in significant income.

1. Unfortunately for the claimants in this case, visitors to the viewing gallery can see straight into the living areas of their flats. The flats in question are located on, respectively, the 13th, 18th, 19th and 21st floors of a block which is part of the nearby Neo Bankside residential and commercial development. The distance between the two buildings is about 34 metres and the flats on the 18th and 19th floors - which are the most affected - are at about the same height above ground level as the viewing gallery. The walls of the Neo Bankside flats are constructed mainly of glass. The trial judge found that, on the southern walkway of the viewing gallery, “[a] major part of what catches the eye is the apparently clear and uninterrupted view of how the claimants seek to conduct their lives in the flats. One can see them from practically every angle on the southern walkway”: [2019] Ch 369, para 203.

1. The viewing gallery opens when the museum opens at 10am every day of the week. When it first opened in 2016, the viewing gallery closed when the museum closes, at 6pm on Sunday to Thursday and at 10pm on Fridays and Saturdays. In response to complaints about the viewing gallery, the closing time on Sunday to Thursday was later moved forward slightly to 5.30pm and on Fridays and Saturdays the south and west sides of the viewing gallery were closed at 7pm, with only the north and east sides staying open until 10pm. (An exception was made for one Friday each month when the whole viewing gallery stayed open until 10pm.) These were the opening hours at the time of the trial.

1. In this action the claimants are seeking an injunction requiring the Board of Trustees of the Tate Gallery to prevent members of the public from viewing their flats from the relevant part of the viewing gallery walkway; or alternatively, an award of damages. Their claim is based on the common law of private nuisance.

1. The trial judge, Mann J, found as facts that a very significant number of visitors to the Tate’s viewing gallery display an interest in the interiors of the claimants’ flats. Some look, some peer, some photograph, some wave. Occasionally binoculars are used. Many photographs showing the interiors of the flats have been posted on social media. The judge found that the extent of the viewing and interest shown in the claimants’ flats is a material intrusion into the privacy of their living accommodation, using the word “privacy” in its everyday sense. He held that intrusive viewing from a neighbouring property can in principle give rise to a claim for nuisance. But he nevertheless concluded that the intrusion experienced by the claimants in this case does not amount to a nuisance. The judge’s reasoning, which I will examine in due course, was in essence that the Tate’s use of the top floor of the Blavatnik Building as a public viewing gallery is reasonable and that the claimants are responsible for their own misfortune: first, because they have bought properties with glass walls and, second, because they could take remedial measures to protect their own privacy such as lowering their blinds during the day or installing net curtains.

1. On appeal, the Court of Appeal (Sir Terence Etherton MR, Lewison and Rose LJJ) found that the judge’s reasoning involved material errors of law and that, if the principles of common law nuisance are correctly applied to the facts of this case, the claim should succeed. Nevertheless, they dismissed the appeal. They did so on the ground that “overlooking”, no matter how oppressive, cannot in law count as a nuisance. By way of cold comfort to the claimants, they explained that “even in modern times the law does not always provide a remedy for every annoyance to a neighbour, however considerable that annoyance may be”: [2020] Ch 621, para 79.

1. In my opinion, the Court of Appeal was right to hold that the judge incorrectly applied the law but wrong to decide that the law of nuisance does not cover a case of this kind. On the facts found by the judge, this is a straightforward case of nuisance. As I will explain later, I suspect that what lies behind the rejection of the claim by the courts below is a reluctance to decide that the private rights of a few wealthy property owners should prevent the general public from enjoying an unrestricted view of London and a major national museum from providing public access to such a view. To the extent that this is a relevant consideration, however, its relevance is to the question of remedy and whether or not it is appropriate to prohibit the defendant’s activity by granting an injunction: it cannot justify permitting the defendant to infringe the claimants’ rights without compensation.

1. To make good these conclusions, I will begin by recalling the relevant core principles of the common law of private nuisance and showing how they apply to the facts of this case. I will then explain how, in my view, each of the courts below misapplied those principles.

B. CORE PRINCIPLES OF PRIVATE NUISANCE

(1)The scope of private nuisance

1. In his classic article “The Boundaries of Nuisance” (1949) 65 LQR 480 Professor Francis Newark described private nuisance as a “tort to land” - by which he meant that its subject matter is wrongful interference with the claimant’s enjoyment of rights over land. He declared his willingness “in the spirit of the old reformers” to nail the following thesis to the doors of the Law Courts and defend it against all comers:

   “The term ‘nuisance’ is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land.”

As generally in the law of property, the legal concept of land includes here not only the earth itself but also buildings and other things which are physically attached to it and rights, for example easements, which attach in law to the land.

1. In Hunter v Canary Wharf Ltd [1997] AC 655 the House of Lords emphatically endorsed this thesis: see especially pp 687G-688E (Lord Goff of Chieveley), 696B (Lord Lloyd of Berwick), 702H, 707C (Lord Hoffmann) and 723D-E (Lord Hope of Craighead). By a majority of four to one (Lord Cooke of Thorndon dissenting), the House of Lords decided that, because the interest protected by the tort of private nuisance is the use and enjoyment of land, only a person with a legal interest in the land can sue. Generally, the required interest is a right to exclusive possession of the land. That requirement is satisfied by the claimants in this case who are the leasehold owners of their flats under 999-year leases.

1. It follows from the nature of the tort of private nuisance that the harm from which the law protects a claimant is diminution in the utility and amenity value of the claimant’s land, and not personal discomfort to the persons who are occupying it: see eg Hunter [1997] AC 655, 696B-D (Lord Lloyd), 705G-707C (Lord Hoffmann), 724F-725A (Lord Hope); Williams v Network Rail Infrastructure Ltd [2019] QB 601, para 43. As Professor Newark put it in his article, at pp 488-489:

   “… the interest of the plaintiff which is invaded is not the interest of bodily security but the interest of liberty to exercise rights over land in the amplest manner. A sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens.”

(2)Nuisance can be caused by any means

1. A second fundamental point, directly relevant in this case, is that there is no conceptual or a priori limit to what can constitute a nuisance. To adapt what Lord Macmillan said of negligence in Donoghue v Stevenson [1932] AC 562, 619, the categories of nuisance are not closed. Anything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land is capable of being a nuisance.

1. Frequently, such interference is caused by something emanating from land occupied by or under the control of the defendant which physically invades the claimant’s land. This may be something tangible, as where - to take a recent example - an incursion of Japanese knotweed from neighbouring land gave rise to a claim: see Williams v Network Rail [2019] QB 601. Or it may be something intangible, such as fumes, noise, vibration or an unpleasant smell. In all such cases, however, the basis of the claim is not the physical invasion itself but the resulting interference with the utility or amenity value of the claimant’s land. Moreover, there is no requirement that the interference must be caused by a physical invasion and, as commentators have pointed out, there are many cases which do not fit this model: see C Essert, “Nuisance and the Normative Boundaries of Ownership” (2016) 52 Tulsa L Rev 85, 96-98; D Nolan, “The Essence of Private Nuisance” in Ben McFarlane and Sinéad Agnew (eds), Modern Studies in Property Law, vol 10 (2019) 71, 81-83. So, for example, a nuisance may be caused by obstructing access to land (eg Guppys (Bridport) Ltd v Brookling (1983) 14 HLR 1); by a withdrawal of support for the claimant’s land (eg Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] QB 836); by obstruction of an acquired right to light (eg Jolly v Kine [1907] AC 1) or to a flow of air (eg Bass v Gregory (1890) 25 QBD 481) through a defined aperture; or by preventing connection to a public sewer (Barratt Homes Ltd v Dŵr Cymru Cyfyngedig (No 2) [2013] 1 WLR 3486).

1. In the New Zealand case of Bank of New Zealand v Greenwood [1984] 1 NZLR 525, the interference consisted in a dazzling glare caused by the deflection of the sun’s rays off the glass roof of the defendant’s building. Similarly, in one American case a large neon advertising sign on a building directly opposite bedrooms of the plaintiff’s hotel was held to cause a nuisance when illuminated at night: Shelburne Inc v Crossan Corp, 95 NJ Eq 188; 122 A 749 (NJ Ch 1923). In the Bank of New Zealand case, at p 530, Hardie Boys J rightly saw a “dearth” of similar cases as presenting “no great obstacle” to the claim, since “nuisance is one of those areas of the law where the courts have long been engaged in the application of certain basic legal concepts to a never-ending variety of circumstances …”

1. In principle, the sight of something for which the defendant is responsible may be so offensive as to amount to a nuisance. In Thompson-Schwab v Costaki [1956] 1 WLR 335 the Court of Appeal upheld the grant of an interim injunction to restrain the use of the house next door to the claimant’s house as a brothel. The court rejected a submission that the sight of prostitutes and their clients coming and going from the defendant’s premises was not capable of constituting a nuisance as a matter of law, holding that whether a nuisance was established would depend on the facts found at the trial. See also Laws v Florinplace Ltd [1981] 1 All ER 659 (sex shop on a residential street). American case law provides further examples of interference with the enjoyment of land caused by offensive sights, such as Foley v Harris, 286 SE 2d 186 (Va 1982) where the keeping of numerous junked, abandoned and disabled vehicles on the defendant’s land was held to be a nuisance.

1. In this case we are concerned, not with a sight to which an occupier of land is subjected when looking out, but with the interference caused by people constantly looking in. Leaving the actual facts of this case aside for the moment, it is not difficult to imagine circumstances in which an ordinary person would find such visual intrusion an intolerable interference with their freedom to use and enjoy their property. A colourful illustration is provided by a mediaeval case heard at the London Assize of Nuisance in 1341: see Misc Roll DD: 5 Nov 1339 - 15 Dec 1346, number 365. According to the case record:

   “The [plaintiff] complains that John le Leche, fishmonger, has a leaden watch-tower (garritam) upon the wall of his tenement adjoining hers in the same par[ish] upon which he and his household (familiares) stand daily, watching the private affairs of the pl[aintiff] and her servants. The def[endant], present upon the land before the mayor and aldermen, admits the nuisance, and freely undertakes to remove it within 40 days subject to the customary penalty.”

1. In his judgment in the present case Mann J gave a similar (hypothetical) example of a landowner “who erects a viewing tower whose only purpose is to enable views into the gardens and houses of other neighbours, and who then charges an entry fee to allow members of the public to come in and do just that”: [2019] Ch 369, para 169. It is obvious that, as a matter of fact, such an activity could substantially interfere with the ordinary use and enjoyment of the neighbours’ land. There is in these circumstances no legal reason why it would not be actionable as a private nuisance.

(3)“Unreasonable” interference

1. At a general level, the law of private nuisance is concerned with maintaining a balance between the conflicting rights of neighbouring landowners - “between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with”: Sedleigh-Denfield v O’Callaghan [1940] AC 880, 903 (Lord Wright). It is evident that, if such a balance is to be maintained, not every interference with a person’s use and enjoyment of their land can be actionable as a nuisance. It is sometimes said, as if it were a governing principle, that to give rise to liability the interference must be “unreasonable”. However, the term “unreasonable” in this statement has no explanatory power: see in particular Allan Beever, The Law of Private Nuisance (2013), p 10 (“It is presented as an explanation of the operation of the law, but it does not, cannot, explain anything”). The requirement that the interference must be “unreasonable” is just another way of saying that - as it is also put - the interference must be “unlawful” (see eg Winfield and Jolowicz on Tort, 20th ed (2020), para 15-010, and the cases there cited); or that to give rise to liability an activity must “unduly” interfere with a person’s use or enjoyment of land (see eg Clerk & Lindsell on Torts, 23rd ed (2020), para 19-01; Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822, para 3, per Lord Neuberger of Abbotsbury).

1. The authors of Winfield and Jolowicz on Tort, para 15-017, explain that the term “unreasonable” in this context “signifies what is legally right between the parties taking account of all the circumstances of the case.” In other words, it is no more than a way of stating a conclusion about whether the defendant’s activity is lawful and is not itself a legal standard or test which assists in reaching such a conclusion.

1. In their judgment in this case the Court of Appeal rightly emphasised that liability for private nuisance “does not turn on some overriding and free-ranging assessment by the court of the respective reasonableness of each party in the light of all the facts and circumstances”, and that the requirements of the common law as to what a claimant must prove, and what will constitute a good defence, “themselves represent in the round the law’s assessment of what is and is not unreasonable conduct sufficient to give rise to a legal remedy”: [2020] Ch 621, para 38. Provided this is understood, no harm is done in using the language of “reasonableness”. The risk of this form of expression, however, is that it might be mistaken for an actual test for determining liability, albeit one that is entirely open-ended and lacking in content. On occasion the best the law can do is to ask an impartial judge to decide what he or she intuitively feels is reasonable or right between the parties in all the circumstances of the case. But the common law aspires to be more principled than this. As I will describe, there are principles, settled since the nineteenth century, which run through the cases and govern whether interference with the use and enjoyment of land is “unlawful” or “undue” or (if the term is to be used) “unreasonable”. These principles are not formulae or mechanical rules. They involve judgment in their application. But they provide clear standards rooted in values of reciprocity and equal justice.

1. In applying these principles, the first question which the court must ask is whether the defendant’s use of land has caused a substantial interference with the ordinary use of the claimant’s land. The two evaluative judgments involved in this test each merit some elaboration.

(4)The interference must be substantial

1. Courts have adopted varying phraseology to express the point that the interference with the use of the claimant’s land must exceed a minimum level of seriousness to justify the law’s intervention. The terms “real”, “substantial”, “material” and “significant” have all been used. Put the other way round, the courts will not entertain claims for minor annoyances. As Lord Wensleydale said in St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642, 653-654:

   “the law does not regard trifling and small inconveniences, but only regards sensible inconveniences, injuries which sensibly diminish the comfort, enjoyment or value of the property which is affected.”

1. The test is objective. What amounts to a material or substantial interference is not judged by what the claimant finds annoying or inconvenient but by the standards of an ordinary or average person in the claimant’s position. As famously expressed by Knight Bruce V-C in Walter v Selfe (1851) 4 De G & Sm 315, 322, the question is whether the interference ought to be considered a material inconvenience “not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people”; see also Barr v Biffa Waste Services Ltd [2013] QB 455, para 36(ii). The objective nature of the test reflects the fact that the interest protected by the law of private nuisance is the utility of land, and not the bodily security or comfort of the particular individuals occupying it: see para 11 above.

(5)The ordinary use of land

1. Fundamental to the common law of private nuisance is the priority accorded to the general and ordinary use of land over more particular and uncommon uses. In Fleming v Hislop (1886) 11 App Cas 686, 691, the Earl of Selborne L-C encapsulated this well when he defined a nuisance as “what causes material discomfort and annoyance for the ordinary purposes of life to a man's house or to his property” (emphasis added). In the earlier case of Ball v Ray (1873) LR 8 Ch App 467, 470, the same judge, when Lord Chancellor, had expressed the converse proposition that:

   “if either party turns his house, or any portion of it, to unusual purposes in such a manner as to produce a substantial injury to his neighbour, it appears to me that that is not according to principle or authority a reasonable use of his own property; and his neighbour, shewing substantial injury, is entitled to protection.” (emphasis added)

   The “unusual purpose” for which the defendant in Ball v Ray was using his house (in a residential street) was as a stable for keeping horses. Mellish LJ (at p 471) agreed with the Lord Chancellor that:

   “when in a street like Green Street the ground floor of a neighbouring house is turned into a stable, we are not to consider the noise of horses from that stable like the noise of a pianoforte from a neighbour’s house, or the noise of a neighbour’s children in their nursery, which are noises we must reasonably expect, and must to a considerable extent put up with.”

See also Broder v Saillard (1876) 2 Ch D 692, another case concerning a stable in a residential street, where this passage was quoted with approval and the principle applied.

1. One aspect of this core principle is that an occupier cannot complain if the use interfered with is not an ordinary use. In Robinson v Kilvert (1889) 41 Ch D 88 the claimant rented a warehouse in which he stored a particularly delicate and sensitive type of paper. Heat rising from the defendant’s cellar underneath the warehouse floor damaged the paper although it would not have affected ordinary paper and was not sufficient to interfere with “the ordinary use of property for the purposes of residence or business” (p 94). The Court of Appeal held that the defendant was not liable in nuisance. Cotton LJ, at p 94, rejected the notion that something can be a nuisance “because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life.” As Lord Robertson said, giving the judgment of the Privy Council in Eastern and South African Telegraph Co v Cape Town Tramways Co Ltd [1902] AC 381 at 393:

   “A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure.”

1. The trial judge in the present case in an appendix to his judgment (at paras 228-233) was in my view quite right to recognise the continuing validity of this principle and to reject contrary dicta of Buxton LJ in Network Rail Infrastructure Ltd (formerly Railtrack plc) v Morris (trading as Soundstar Studio) [2004] Env LR 41, paras 32 and 35-36, suggesting that it is no longer apt.

1. The other aspect of this core principle is that, even where the defendant’s activity substantially interferes with the ordinary use and enjoyment of the claimant’s land, it will not give rise to liability if the activity is itself no more than an ordinary use of the defendant’s own land. In the leading case of Bamford v Turnley (1862) 3 B & S 66 at 83, Bramwell B formulated a test which has since been regularly cited, approved and applied, including at the highest level. He gave what were then contemporary examples of acts such as “burning weeds, emptying cess-pools” and “making noises during repairs” which (unless done maliciously and without cause) would not be treated as nuisances, even when they caused material inconvenience or discomfort to neighbouring owners. He then said at pp83-84:

   “There must be, then, some principle on which such cases must be excepted. It seems to me that that principle may be deduced from the character of these cases, and is this, viz, that those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action.” (emphasis added)

   Bramwell B justified this principle in the following way:

   “There is an obvious necessity for such a principle as I have mentioned. It is as much for the advantage of one owner as of another; for the very nuisance the one complains of, as the result of the ordinary use of his neighbour’s land, he himself will create in the ordinary use of his own, and the reciprocal nuisances are of a comparatively trifling character. The convenience of such a rule may be indicated by calling it a rule of give and take, live and let live.”

1. Subsequent cases have shown that this justification is not limited, as Bramwell B suggested, to situations where the reciprocal nuisances “are of a comparatively trifling character.” The rule of “give and take, live and let live” applies wherever a nuisance results from the ordinary use of land. In Southwark London Borough Council v Tanner [2001] 1 AC 1 adjoining flats had been built without sound insulation, with the result that, as described by Lord Hoffmann at p 7:

   “The tenants can hear not only the neighbours’ televisions and their babies crying but their coming and going, their cooking and cleaning, their quarrels and their love-making. The lack of privacy causes tension and distress.”

   The noise from the neighbours’ activities thus caused a substantial interference with the ordinary use and enjoyment of the claimants’ flats. But the House of Lords held that this interference was not an actionable nuisance because the neighbours were doing no more than making normal use of their own flats. The two conditions of Bramwell B’s test were satisfied, as the acts complained of were (i) necessary for the common and ordinary use and occupation of land, and (ii) “conveniently done” - that is to say, done with proper consideration for the interests of neighbouring occupiers: see pp 16C-D (Lord Hoffmann) and 21A-B (Lord Millett). Lord Hoffmann stated, at p 15F-G:

   “… I do not think that the normal use of a residential flat can possibly be a nuisance to the neighbours. If it were, we would have the absurd position that each, behaving normally and reasonably, was a nuisance to the other.”

“Reasonable user”

1. In Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264, 299, Lord Goff said that:

   “although liability for nuisance has generally been regarded as strict, … [it] has been kept under control by the principle of reasonable user - the principle of give and take as between neighbouring occupiers of land, under which ‘those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action:’ see Bamford v Turnley (1862) 3 B & S 62, 83, per Bramwell B. The effect is that, if the user is reasonable, the defendant will not be liable for consequent harm to his neighbour’s enjoyment of his land; but if the user is not reasonable, the defendant will be liable, even though he may have exercised reasonable care and skill to avoid it.”

It can be seen that in this passage Lord Goff was expressly endorsing the principle formulated by Bramwell B in Bamford v Turnley and was using the phrase “reasonable user” as a shorthand for this principle, under which “those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action.” Unfortunately, this point has sometimes been overlooked and these remarks treated as if Lord Goff had been suggesting that the applicable test is one of the “reasonableness” of the defendant’s use of land in a general, undefined sense. The misunderstanding is ironic, as the very issue decided in Bamford v Turnley was that it is not a defence to liability that the defendant’s use of his land is reasonable.

1. The complaint in Bamford v Turnley was that “the brick-kilns of the defendant, by immitting corrupted air upon the plaintiff’s house, had rendered it unfit for healthy or comfortable occupation”: see (1862) 3 B & S 66, 74. The jury returned a verdict for the defendant, after being directed that they must do so if they were of the opinion that making bricks, notwithstanding the interference caused to the plaintiff, “was, under the circumstances, a reasonable use by the defendant of his own land.” The question on appeal was whether the judge’s direction to the jury was correct in law. The Court of Exchequer Chamber (by a majority of five to one, with Pollock CB dissenting) held that the direction was not correct and substituted a verdict for the plaintiff. Although the main judgment was given by Williams J, it is the concurring judgment of Bramwell B which has been repeatedly cited and regarded as a classic statement of the relevant legal principles. Bramwell B explained (at p 83) why it did not assist the defendant that his use of his land to manufacture bricks was found by the jury to be reasonable. The reason was that “what has been done was not the using of land in a common and ordinary way, but in an exceptional manner - not unnatural nor unusual, but not the common and ordinary use of land.”

1. The point that it is no answer to a claim for nuisance to say that the defendant is using its land reasonably has been reiterated in many later cases: see eg Broder v Saillard (1876) 2 Ch D 692, 701; Reinhardt v Mentasti (1889) 42 Ch D 685, 690; Attorney General v Cole & Son [1901] 1 Ch D 205; Southwark London Borough Council v Tanner [2001] 1 AC 1, 20; Barr v Biffa Waste Services Ltd [2013] QB 455, paras 60-72; and see also Allan Beever, The Law of Private Nuisance (2013) pp 9-13. In Southwark Lord Millett (with whom Lords Slynn, Steyn and Clyde agreed) addressed directly Lord Goff’s description in Cambridge Water of Bramwell B’s principle as “the principle of reasonable user”, saying, at p 20:

   “The use of the word ‘reasonable’ in this context is apt to be misunderstood. It is no answer to an action for nuisance to say that the defendant is only making reasonable use of his land.”

Lord Millett went on to reiterate that the principle which limits the liability of a landowner who causes a sensible interference with his neighbour’s enjoyment of his property is that stated by Bramwell B in Bamford v Turnley, and that where the two conditions of that test are satisfied, no action will lie against the landowner “for that substantial interference with the use and enjoyment of his neighbour’s land that would otherwise have been an actionable nuisance” (p 21).

1. In Barr v Biffa Waste Services Ltd the residents of a housing estate complained of unpleasant smells emanating from a landfill site used as a waste tip by the defendant. The trial judge dismissed the claims in nuisance of all but two of the claimants. In reaching this decision, the judge applied a test (for which he relied principally on the passage quoted above from Lord Goff’s speech in Cambridge Water) of “whether or not the use of the land in question can be described as reasonable in all the circumstances”: [2011] EWHC 1003 (TCC); [2011] 4 All ER 1065, para 205. The judge also said, at para 256(c):

   “Reasonable user has been equated to the principle of ‘give and take’ … Although that principle was originally said not to arise in cases where the use was ‘not unnatural nor unusual but not the common and ordinary use of land’ (Bamford v Turnley (1862) 3 B & S 62), the modern law of nuisance focuses on whether, in all the circumstances, the user is reasonable, and ‘give and take’ will usually be an element of that assessment, regardless of whether the use of the land could be said to be common or not …”

1. In allowing the claimants’ appeal, the Court of Appeal firmly rejected this view of the law, describing it as “unsupported by authority, and misconceived”: see [2013] QB 455, paras 60-72. Carnwath LJ (with whom the other members of the court agreed) discussed the concept of “reasonable user” at some length, observing (at para 46) that the phrase “reasonable user” is “at most a different way of describing old principles, not an excuse for re-inventing them”. He pointed out that in Cambridge Water Lord Goff was not seeking to redefine the ordinary law of nuisance but rather was citing the well established principles formulated by Bramwell B in Bamford v Turnley (para 65) and was using the phrase “reasonable user” “as no more than a shorthand for the traditional common law tests” (para 71). He referred to Lord Millett’s comments in Southwark on Lord Goff’s use of the expression and noted that Lord Millett’s own summary of Bramwell B’s principles did not use a test of reasonableness. Carnwath LJ reiterated that “reasonable user” “should be judged by the well settled tests” formulated by Bramwell B (para 72). That is an important reminder, which I would endorse.

Reciprocity

1. The underlying justification for those “well settled tests” was spelt out by Lord Millett in Southwark, when he explained (at p 20) that:

   “The governing principle is good neighbourliness, and this involves reciprocity. A landowner must show the same consideration for his neighbour as he would expect his neighbour to show for him.”

This explanation gets to the nub of the rule of “give and take, live and let live” stated by Bramwell B in Bamford v Turnley. It is a principle of equal justice, a form of the golden rule that you should “do as you would be done by”. Put negatively, people cannot fairly demand of others behaviour which they would not at the same time allow others to demand of them. See further Ernest J Weinrib, The Idea of Private Law (2012) pp 190-194; C Essert, “Nuisance and the Normative Boundaries of Ownership” (2016) 52 Tulsa L Rev 85, 103-106.

1. This principle of reciprocity explains the priority given by the law of nuisance to the common and ordinary use of land over special and unusual uses. A person who puts his land to a special use cannot justify substantial interference which this causes with the ordinary use of neighbouring land by saying that he is asking no more consideration or forbearance from his neighbour than they (or an average person in their position) can expect from him. Nor can such a person complain on that basis about substantial interference with his special use of his land caused by the ordinary use of neighbouring land. By contrast, a person who is using her land in a common and ordinary way is not seeking any unequal treatment or asking of her neighbours more than they ask of her.

The freedom to build

1. I have mentioned already that in Hunter v Canary Wharf Ltd the House of Lords confirmed that only a person with an interest in the affected land may sue for nuisance. A second issue raised on that appeal was whether interference with television reception is capable of giving rise to a claim for nuisance. The House of Lords did not give an absolute answer to that question. The law lords did not exclude the possibility that the ability to watch television might be regarded as so important a part of the ordinary enjoyment of property that interference with it could amount to an actionable nuisance. That might have been so where the interference was caused by a special or particular use of the defendant’s land, as was claimed in Bridlington Relay Ltd v Yorkshire Electricity Board [1965] Ch 436 (where the point was left open as the claim failed on the facts). In Hunter, however, the cause of the interference with television reception was the size and design (with metal cladding) of a building erected on the defendant’s land. The House of Lords reaffirmed the general rule at common law that anyone may build whatever they like on their land, unless this violates an agreement not to do so or an acquired right to light or to a flow of air through a defined aperture: see pp 685D-F (Lord Goff), 699C-H (Lord Lloyd), 709A-H (Lord Hoffmann) and 726B-H (Lord Hope). It followed that interference with the use of the claimants’ land caused by the mere presence of a building on the defendant’s land could not give rise to a claim for private nuisance. The same principle explains why no claim lies for interference with a view or prospect.

1. The right to build (and demolish) structures is fundamental to the common and ordinary use of land, involving as it does the basic freedom to decide whether and how to occupy the space comprising the property. It follows that interference resulting from construction (or demolition) works will not be actionable provided it is, in Bramwell B’s phrase, “conveniently done”, that is to say, in so far as all reasonable and proper steps are taken to ensure that no undue inconvenience is caused to neighbours: see Andreae v Selfridge & Co Ltd [1938] Ch 1.

(6)The locality principle

1. It is also well settled that what is a “common and ordinary use of land” is to be judged having regard to the character of the locality. In Sturges v Bridgman (1879) 11 Ch D 852, 865, Thesiger LJ giving the judgment of the Court of Appeal expressed this in a famous statement that “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. In saying this, he was not, as is sometimes mistakenly supposed, suggesting that inhabitants of an upmarket neighbourhood are entitled to greater legal protection than those of a poorer neighbourhood - an approach which would be entirely contrary to equal justice. The facts were that Dr Sturges, a physician living in Wimpole Street in London, built a consulting room at the end of his back garden. On the other side of the party wall from the new consulting room was the kitchen of the defendant, Mr Bridgman, who carried on business as a confectioner. Mr Bridgman had in his kitchen two large mortars set in brickwork built up against the party wall and worked by two large pestles held upright by horizontal bearers attached to the wall. Dr Sturges complained that, when the pestles and mortars were used, noise and vibrations caused serious disturbance.

1. At the trial Sir George Jessel MR found the evidence of nuisance clear and “all one way” (p 855). The principal defence was that the defendant had acquired a prescriptive right to continue using the pestles and mortars as a result of having done so without interruption for more than 20 years. The judge and the Court of Appeal rejected this argument. The principle on which such a right can be acquired is that the other party has acquiesced in a wrong for the prescribed period of time. In this case no such acquiescence could be inferred as the use of the pestles and mortars only became a nuisance and thus an actionable wrong when the consulting room was built.

1. Mr Bridgman’s counsel objected that this reasoning would lead as its logical consequence to “the most serious practical inconveniences”. A hypothetical example was posed of a person who builds a new home, not in a residential area such as Belgrave Square, but in an industrial district such as (what were then) “the tanneries of Bermondsey”. It was said that if the new homeowner could complain that the activities of the tanneries were a nuisance, this would have the potential in a locality devoted to a particular trade or manufacture to put a stop to such trade or manufacture altogether. This was the context in which Thesiger LJ made his much quoted remark. The court’s answer to this objection, at p 865, was that:

   “where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, Judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private or actionable wrong.”

1. The fact that the claim in Sturges v Bridgman succeeded reflects the fact that in 1873, when Dr Sturges built his consulting room, it could not be said that the locality was one devoted to manufacture, as Wimpole Street was primarily residential, with professionals, including many members of the medical profession like Dr Sturges, conducting business from their homes: see AWB Simpson, “The Story of Sturges v Bridgman: The Resolution of Land Use Disputes between Neighbors” in G Korngold and A Morriss (eds), Property Stories (2004), p 9.

(7)Coming to a nuisance is no defence

1. A further rule, also illustrated by Sturges v Bridgman, is that “coming to a nuisance” is not a defence. In other words, it is not in itself a defence to a claim for nuisance that the defendant was already using his land in the way now complained of before the claimant acquired or began to occupy the neighbouring land. Nor is it a defence that the defendant’s activity did not amount to a nuisance until the claimant’s land was built on or its use was changed. This may initially seem counterintuitive. Mr Bridgman and his father before him had been using one of the pestles and mortars in their kitchen in the same place and to the same extent for some 60 years and the other for well over 20 years before Dr Sturges built his consulting room. It may at first sight appear unjust that Mr Bridgman was required to stop an activity which had been carried on for such a long time. This situation does not arise in the present case, as the claimants were already occupying their flats when the Tate’s viewing gallery was opened. But it is worth noticing the reasons why Mr Bridgman’s longstanding use of his property did not give him a defence, and why indeed it would have been unjust if it had done so, because those reasons shed further light on the principles which underpin the law of nuisance. The rationale for the approach taken by the common law can be seen by comparing the alternatives.

1. One alternative approach would be to treat an activity as an actionable nuisance even though it is not interfering with any actual use of the claimant’s property if it impairs a potential use. Such an approach would have allowed Dr Sturges (or his predecessor in title) to bring an action to stop the use of Mr Bridgman’s pestles and mortars before the consulting room was built even though that use was then causing no material inconvenience, on the basis that the noise and vibrations would prevent the ordinary use of any new room that his neighbour might later wish to build against the party wall. There are good reasons why the law does not permit such a claim. First, requiring actual interference to be shown allows someone in Mr Bridgman’s position to make use of his land, at least for the time being, in a way that benefits him and is not inconveniencing his neighbour. Second, the potential conflict of use might never actually arise. For example, Mr Bridgman’s neighbour might never have chosen to build a new room on the other side of the party wall, or Mr Bridgman might have installed new kitchen equipment which did not cause the same noise and vibrations, or his premises might have been converted to a different use. It is not desirable to have litigation about possible future conflicts that may never actually occur.

1. A second theoretical possibility would be to allow a person to acquire a right to continue a use of land through long uninterrupted use during a period when the neighbouring landowner has no right to prevent such use because the neighbour is not at that time using her own land in such a way that the activity is a nuisance. However, such a regime would be equally objectionable. It is wrong in principle that a person should be able to acquire rights over neighbouring land and diminish his neighbour’s rights over her own land without the neighbour’s consent or acquiescence, simply by his unilateral action in carrying on an activity at a time when the owner or occupier of the neighbouring land has no power to prevent it.

1. These points were explained with conspicuous clarity in the judgment of the Court of Appeal in Sturges v Bridgman by reference to an example of a blacksmith’s forge “built away from all habitations, but to which, in course of time, habitations approach.” Thesiger LJ said, at p 865:

   “It would be on the one hand in a very high degree unreasonable and undesirable that there should be a right of action for acts which are not in the present condition of the adjoining land, and possibly never will be any annoyance or inconvenience to either its owner or occupier; and it would be on the other hand in an equally degree unjust, and, from a public point of view, inexpedient that the use and value of the adjoining land should, for all time and under all circumstances, be restricted and diminished by reason of the continuance of acts incapable of physical interruption, and which the law gives no power to prevent.”

Thesiger LJ pointed out that, if the blacksmith wished to protect himself from the risk of future claims for nuisance, he might do so “by taking a sufficient curtilage to ensure what he does from being at any time an annoyance to his neighbour.”

1. The general rule that coming to a nuisance is not a defence was confirmed by the Supreme Court in Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822. There is discussion (obiter) in the judgments of Lord Neuberger and Lord Carnwath in that case of the possibility that a use of the defendant’s land which pre-dates a change in use of the claimant’s land may nevertheless support a defence by contributing to the character of the locality. The points discussed may in future need to be revisited but do not arise for decision on this appeal.

(8)The public interest

1. The last core principle that I need to mention is the principle that it is not a defence to a claim for nuisance that the activity carried on by the defendant is of public benefit: see eg Clerk & Lindsell on Torts, 23rd ed (2020), para 19-107. I will come back to this principle later in this judgment.

C. APPLYING THE LAW IN THIS CASE

1. I have summarised the legal principles which the court must apply in this case. I confess that their application to the facts found by the trial judge seems to me entirely straightforward. Mann J found that the living areas of the claimants’ flats are under constant observation from the Tate’s viewing gallery for much of the day, every day of the week; that the number of spectators is in the hundreds of thousands each year; and that spectators frequently take photographs of the interiors of the flats and sometimes post them on social media. It is not difficult to imagine how oppressive living in such circumstances would feel for any ordinary person - much like being on display in a zoo. It is hardly surprising that the judge concluded that this level of visual intrusion would reasonably be regarded by a homeowner as a material intrusion into the privacy of their living accommodation. On his findings it is beyond doubt that the viewing and photography which take place from the Tate’s building cause a substantial interference with the ordinary use and enjoyment of the claimants’ properties.

1. The Tate does not encourage visitors to peer into the claimants’ flats. Indeed, in response to complaints from the claimants it posted a sign in the viewing gallery asking visitors to respect the privacy of the Tate’s neighbours and instructed security guards to stop photography of the flats. However, the judge did not regard these steps as likely to achieve much, describing them as “not quite wholly useless”: [2019] Ch 369, paras 69, 221. No attempt has been made, nor could realistically be made, to stop visitors from looking, sometimes intently, into the claimants’ flats whenever the south side of the gallery is open; and in an age when most people carry a smartphone with a high powered camera it is a natural and foreseeable consequence of allowing thousands of visitors a week to look out from a viewing gallery from which they get a clear view of the claimants’ living accommodation that a significant number will take photographs of the interiors of the flats, just as the judge found that they in fact do.

1. The judge characterised the locality in which the Tate Modern and the Neo Bankside flats are situated as “a part of urban south London used for a mixture of residential, cultural, tourist and commercial purposes.” He noted that an occupier in that environment “can expect rather less privacy than perhaps a rural occupier might” and that “[a]nyone who lives in an inner city can expect to live quite cheek by jowl with neighbours”: para 190. But he made no finding that there is any other viewing platform in that part of London; nor that operating a public viewing gallery is necessary for the common and ordinary use and occupation of the Tate’s land. The Tate did not make, and could not credibly have made, any such allegation. Inviting members of the public to look out from a viewing gallery is manifestly a very particular and exceptional use of land. It cannot even be said to be a necessary or ordinary incident of operating an art museum. Hence, the Tate cannot rely on the principle of give and take and argue that it seeks no more toleration from its neighbours for its activities than they would expect the Tate to show for them.

1. I have indicated that it would not have mattered if the viewing gallery had already been operating when the Neo Bankside flats were built or when the claimants acquired their flats; and that even if the question of who was there first had been relevant, it would not have assisted the Tate. The claimants all bought their flats in 2013 or 2014. The Blavatnik Building including the viewing gallery was first opened to the public in June 2016. Although considerable time and evidence seems to have been devoted at the trial to investigating what the Tate and the developers of the Neo Bankside flats knew of each other’s intended uses of their land at various stages of the planning process, I cannot see how this information could be relevant to whether or not the Tate is liable in nuisance; and counsel for the Tate have not argued on this appeal that it is.

1. Applying the well settled legal tests, therefore, the claim ought to succeed. The courts below, however, dismissed the claim - albeit for entirely different reasons from each other. I need therefore to address where and why the judge and the Court of Appeal each went wrong in their reasoning. Counsel for the Tate on this appeal put at the front and centre of their case the submission that the Court of Appeal’s reasoning was correct. But they also relied as a fallback, if necessary, on the reasons given by the judge, and I will consider those reasons first.

D. THE JUDGE’S REASONS

1. The Court of Appeal identified where the judge went wrong. In their judgment they pointed out that the judge made two material errors of law: [2020] Ch 621, paras 97-102. I agree, although I would classify the errors under three heads rather than two.

(1)“Reasonable use” of the Tate’s land

1. First, the judge applied the wrong legal test by framing the question he had to decide as “whether the Tate Modern, in operating the viewing gallery as it does, is making an unreasonable use of its land ...” The judge thought that this required an overall assessment bearing in mind the nature of the Tate’s use of its land, the character of the locality and “bearing in mind that the victim is expected to have to put up with some give and take appropriate to modern society and the locale”: [2019] Ch 369, para 180. The judge thus made the same mistake, or cluster of mistakes, as the trial judge in Barr v Biffa Waste Services Ltd (see paras 32-33 above), a case that unfortunately does not appear to have been cited to him. He thought that an overall assessment was required of what - in an undefined sense - is “reasonable” in all the circumstances. He treated the rule of give and take as if it were an element of such an assessment of “reasonableness” rather than a principle of reciprocity and equal justice. And he asked himself whether the nature of the Tate’s use of its land is “reasonable”, instead of asking whether it is a common and ordinary use.

1. Having asked himself the wrong question, the answer given by the judge was, unsurprisingly, that operating a viewing gallery is not an inherently unreasonable activity in the neighbourhood: see para 196. Nowhere did the judge consider whether the operation of a viewing gallery is necessary for the common and ordinary use and occupation of the Tate’s land. Had he done so, he would have been bound to conclude that, as in Bamford v Turnley itself, the Tate was not using its land “in a common and ordinary way, but in an exceptional manner.”

1. That error is enough to vitiate the judge’s legal analysis. But he also applied the law incorrectly in considering the impact of the Tate’s activities on the ordinary use and enjoyment of the claimants’ flats. Although the Court of Appeal dealt with them together, I think it convenient to address separately the judge’s reasoning in relation to (a) the “sensitivity” of the flats and (b) the availability of “protective measures”.

(2)“Sensitive” buildings

1. The judge considered that the developers in building the flats, and the claimants in choosing to buy them, had “created or submitted themselves to a sensitivity to privacy which is greater than would the case of a less glassed design” (sic); and that “[i]t would be wrong to allow this self-induced incentive to gaze … and self-induced exposure to the outside world, to create a liability in nuisance” (para 205).

1. The judge developed this idea by asking himself whether the claimants would have had a complaint if, instead of occupying flats with complete glass walls, they had lived in flats designed with “significant vertical and perhaps horizontal breaks to interrupt the inward view” (paras 201-202). As he acknowledged, no evidence or argument had been addressed to this question at the trial but the judge undertook the exercise anyway and hypothesised that, for the occupier of such an imaginary building, the vulnerability to the view from the gallery would not be sufficient to amount to a nuisance (para 203). The judge also drew an analogy with the principle that the liability of a defendant cannot be increased by the use of the claimant’s property for a particularly sensitive purpose (para 204).

1. In addition, the judge attached weight to the fact that the corner area of each flat was originally conceived by the developers as a sort of indoor balcony, described as a “winter garden”, which is separated from the rest of the flat by glass doors. In practice the “winter gardens” are used as part of the living accommodation of the flats although, because they are divided from the rest of the interior by glass, spectators can see other parts of the living accommodation as well. The judge concluded that the claimants are occupying “a particularly sensitive property which they are operating in [a] way which has increased the sensitivity”, when “a differently built, but perfectly acceptable, property … would not have had the same degree of exposure” (para 211).

The “winter gardens”

1. The claimants are entitled to occupy their flats as they choose and I cannot see that it matters whether the use made of the “winter gardens” - as I understand it, generally in the Neo Bankside flats and not just by the claimants - as part of the living accommodation was or was not part of the developers’ original conception. There is no suggestion that this use is unlawful and, for a flat which is entirely indoors, I find it hard to see in any case what difference it could make in terms of what constitutes a nuisance whether a particular area is described as “living accommodation” or as an “amenity space”.

Relevance of the glassed design

1. Nevertheless, I agree with the judge’s broader point that the glassed design of the claimants’ flats and their sensitivity to inward view is a relevant factor. It is relevant to the visual intrusion that the occupants can be expected to tolerate. Where in my view the judge went wrong was in how he analysed this question. Critically, he did not distinguish between two different arguments, one of which is valid and the other of which is not.

Sensitivity to the ordinary use of neighbouring land

1. To begin with the valid argument, as anyone who walks around central London can observe, floor to ceiling windows are a common feature of modern, high-rise city buildings. Neither the Tate nor the judge suggested otherwise. Such windows are no doubt attractive to owners and occupiers because of the amount of light, sense of space and (particularly on floors high above ground level) extensive views which they afford. But the judge was plainly right to say that those advantages come at a price in terms of privacy. In an inner-city environment the occupier of a flat high above ground level must recognise the possibility that a building of similar height might be constructed nearby from which the occupants can see through their windows. That reflects the nature of the locality as described by the judge. To the extent that such a nearby building is used in a common and ordinary way - for example, as housing or offices - the fact that the interiors of flats with glass walls can be seen is something the owners have to put up with in accordance with the rule of give and take. Increased exposure to the outside world is an inevitable consequence of the design. The fact that the properties have been designed and constructed in a way which makes them particularly vulnerable to inward view cannot increase the liabilities of neighbours.

1. Suppose, for example, that on the site of the Blavatnik Building another block of flats of similar height had been erected. In such circumstances the fact that the occupants of these new flats could see straight into the claimants’ living accommodation might have caused the claimants annoyance. But if the occupants of the new flats were doing no more than making normal use of their own homes and showing as much consideration for their neighbours as they could reasonably expect their neighbours to show for them, the claimants could not have complained of nuisance. Such a situation would be analogous to the facts of Southwark, where the claimants had to put up with noise incidental to the ordinary use and occupation of neighbouring flats despite the considerable annoyance resulting from the fact that the flats had been built without adequate sound insulation. In the same way, in accordance with the principle of reciprocity, each flat owner in my example would have to put up with being visible to her neighbour just as her neighbour would have to put up with being visible to her. It would be required by the rule of give and take, live and let live.

1. Hirose Electrical UK Ltd v Peak Ingredients Ltd (2011) 4 JPL 429, on which counsel for the Tate relied, further illustrates this point. The parties in that case occupied adjacent premises on a light industrial estate. The claimant complained of food smells entering its offices (owing to the porous nature of the party wall) from the food additive manufacturing unit next door. The deputy judge found that, having regard to the nature of the locality, the degree of interference was insufficient to amount to a nuisance. This was sufficient reason in itself to dismiss the claim. But relevantly for present purposes the judge also found that the defendant was making an ordinary use of its industrial premises and was not conducting its operations in an unreasonable manner. Hence, by analogy with the Southwark case, the defendant was in any case not liable. The Court of Appeal affirmed these findings: [2011] Env LR 34. This is another example, therefore, of a case where the rule of give and take applied.

Sensitivity to abnormal use

1. It does not follow, however, and is not correct, that where a person is using land (in Bramwell B’s phrase) not “in a common and ordinary way, but in an exceptional manner,” it is a defence to argue that a neighbour would not have suffered material inconvenience were it not for the fact that she occupies an “abnormally sensitive” property. This further and different argument is advanced by the Tate in this case. But it is not supported by precedent and is unsound in principle.

1. I think it no coincidence that no authority has been cited to us in which such an argument has ever been accepted. Such an argument was made unsuccessfully in Hoare & Co v McAlpine [1923] 1 Ch 167, where heavy vibration from pile driving during construction works caused serious structural damage to an old hotel belonging to the plaintiffs. The defendant asserted that any damage was due to the abnormally unstable construction of the plaintiffs’ building. Just as the judge did in this case, the defendant relied on an analogy with Robinson v Kilvert and the principle that a claimant who uses property to carry on “an exceptionally delicate trade” cannot complain of injury which would not have been suffered if the claimant had carried on any ordinary trade. The defence failed on the facts because Astbury J did not accept that the plaintiffs’ building, although old and built much less robustly than more modern buildings, was “the delicate and fastidious erection which has been suggested by the defendants” (p 175). The judge did not find it necessary to decide whether as a matter of law such an argument could ever succeed, but observed (at p 176):

   “If the defendants’ contentions of law were really apposite I should find it difficult to answer the query: ‘When does an old building lose its ordinary right of protection against destruction?’”

1. I think this question is apt because it highlights the hopeless uncertainty and endless scope for argument that would arise if the sensitivity of the claimant’s property were in general regarded as itself giving rise to a defence to a claim for nuisance. The law of nuisance would be unworkable, and the protection which it provides to homeowners seriously enfeebled, if it were treated as an answer to a claim for nuisance - as the judge treated it in this case - that the claimant would not have had a complaint in nuisance if, instead of her actual property, she had lived in a “differently built, but perfectly acceptable, property” (see para 211).

1. Quite apart from its unworkability, such an approach would be wrong in principle. As discussed earlier, the reason for applying an objective test when assessing whether the defendant’s activity causes sufficiently serious interference to amount to a nuisance is that the injury is, strictly speaking, to the utility and amenity value of the claimant’s land, and not to the comfort of the individuals who are occupying it. The particular sensitivities or idiosyncrasies of those individuals are therefore not relevant, and the law measures the extent of the interference by reference to the sensibilities of an average or ordinary person. By contrast, it is the utility of the actual land, including the buildings actually constructed on it, for which the law of private nuisance provides protection - not for some hypothetical building of “average” or “ordinary” construction and design.

1. This reflects the basic right of a person at common law, discussed earlier, to occupy and build on their land as they choose. The right applies equally to claimants and defendants. I have referred to the general rule, affirmed by the House of Lords in Hunter v Canary Wharf Ltd, that interference with the use of land caused by the presence or construction or design of a building on the defendant’s land is not actionable as a nuisance (see para 35 above). By the same token, it is not a defence for a defendant to argue that the interference was caused by the presence or construction or design of the claimant’s building. So in Sturges v Bridgman (1879) 11 Ch D 852, for example, the fact that no nuisance arose until Dr Sturges’ consulting room was erected did not afford a defence to the claim. Nor did it afford a defence that, as Mr Bridgman argued, if Dr Sturges had built his consulting room with a separate wall and not directly against the party wall, he would not have experienced any noise or vibration (see p 854). The same point could be made about countless other cases of nuisance. It is not a defence that the defendant's activity would not have caused a nuisance if the claimant’s building had been differently constructed or designed.

1. Counsel for the Tate sought to draw support from Southwark and Hirose, mentioned above. Adopting the view expressed by the authors of Winfield and Jolowicz on Tort, 20th ed (2020), para 15-031, counsel submitted that the best explanation for the decision in Southwark is that the claim failed because the claimants’ flats were abnormally sensitive to noise. Similarly, they submitted that the decision in Hirose should be explained on the ground that the physical attributes of the party wall made the claimant’s property abnormally sensitive to the odours generated in the adjoining unit. These cases were thus said to support a principle that it may be a defence that the claimant is occupying an abnormally sensitive property.

1. However, this explanation does not reflect what the House of Lords actually decided in Southwark. For very good reason, the House of Lords did not decide that the claim failed because the claimants only had themselves to blame for renting flats with inadequate sound insulation in circumstances where they would not have suffered a nuisance if they had occupied “normal” flats. There is no hint of such unsatisfactory reasoning in the judgments. Nor was Hirose decided on the ground that no claim lay because the party wall was porous and the claimant would not have been subjected to the smell if it had occupied a “normally” built unit. In each case the “sensitive” nature of the physical make-up of the building did not itself provide a defence. It was simply part of the factual setting in which the claim arose and had to be decided, neutral in itself. The reason why the defendant had a good defence in each case was because of the principle that “those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action.” That principle applies equally whatever the construction or design of the claimant’s (or the defendant’s) property and does not depend on whether either property is adjudged to be abnormally sensitive.

Conclusion on the relevance of sensitivity in design and construction

1. To draw these points together, the general relevance of sensitivity in the design and construction of buildings is that it makes neighbouring owners more vulnerable to interference from one another’s activities. But such sensitivity does not alter the principles by which their reciprocal rights and obligations are determined. If an occupier is merely using her premises in a common and ordinary way and acting with as much consideration for neighbouring occupiers as can reasonably be expected, then she will not be liable in nuisance. The design of the building may in that way result in an occupier having to put up with greater interference with the ordinary use and enjoyment of her property than she would otherwise have to put up with - but only to the extent required to enable her neighbour to use his own property for the ordinary purposes of life.

1. For that reason in Southwark to the extent that noise from their neighbours’ normal daily activities caused the claimants annoyance and disturbance which they would not have suffered in differently built flats, no claim lay. The same was true in Hirose in so far as the ordinary use made of industrial premises by the defendant would not have caused annoyance if better protection had been afforded by the party wall. Likewise, where the living areas of flats in the Neo Bankside development can be seen from the Blavatnik Building, the normal use of that building would not give rise to a claim. In so far as this results in the occupants of flats being exposed to visual intrusion to which they would not have been exposed in a differently designed building, this is again something they have to put up with in accordance with the general principles of common law nuisance.

1. The present claim, however, is not a claim of this kind. It is different because the nature and extent of the viewing of the claimants’ flats goes far 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. Thus, the judge did not accept that, even in a part of London used partly for cultural purposes and which attracts tourists, making a viewing gallery available to members of the public is an activity which should actually be expected: [2019] Ch 369, para 193.

1. Inviting several hundred thousand visitors a year to look out at the view from your building cannot by any stretch of the imagination be regarded as a common or ordinary use of land. Equally, having thousands of people each day looking into the interior of your flat, often taking photographs (which are sometimes posted on social media) and occasionally using binoculars, cannot possibly be justified by the rule of give and take. A flat owner who objects to this use of neighbouring land is not demanding of her neighbour any more than she must allow him to demand of her. She is not seeking any special or unequal treatment. She is asking only for her neighbour to show the same consideration towards her as he would expect her to show towards him.

Extreme cases of abnormal construction

1. I should qualify the proposition that the physical attributes of a building cannot themselves give rise to a claim or defence to a claim in nuisance. Although the question does not arise for decision in this case, I would not wish to rule out the possibility that there could be extreme cases where the design or construction of a building is so unusual and far from anything that could actually be expected that it might do so.

1. Bank of New Zealand v Greenwood [1984] 1 NZLR 525 may be an example of such a case. That was the case where (in the middle of the day during the summer months when the sun was at its brightest) glass roofing panels on the defendant’s building deflected the sun’s rays in such a way as to cast a dazzling glare through the windows of properties across the street. As Lord Lloyd noted in Hunter, at p 700A-C, it is not easy to reconcile the finding of nuisance in the Bank of New Zealand case with the decision of the House of Lords in Hunter that the interference with television reception caused by the size of the defendant’s building and its stainless steel cladding was not actionable. Lord Goff suggested that the Bank of New Zealand case might be explained on the basis that the design of the defendant’s building had the effect of deflecting the sunlight at such an angle and in such a manner as to cause “a high intensity dazzle”, such that the nuisance was caused not by the mere presence of the building but by something emanating from the defendant’s land: see pp 685G-686C. However, this distinction is unconvincing since, as Lord Lloyd pointed out, even if the light rays are regarded as having emanated from the defendant’s land, a nuisance need not be caused by something emanating from the defendant’s land and may arise from a mere state of affairs (see para 13 above). Assuming the Bank of New Zealand case was correctly decided, it may therefore need to be explained on the basis that the interference caused by the design of the defendant’s building was so unusual and unforeseeable as to be beyond anything that could actually be expected. Certainly, as Lord Lloyd said at p 700C, that case would seem to “go to the limit of the law of nuisance”.

1. So far as I am aware there is no English or Commonwealth authority in which it has ever been decided, conversely, that the design of the claimant’s building was so unusual and unforeseeable as to preclude a claim in nuisance. However, the authors of Winfield and Jolowicz on Tort, 20th ed (2020), para 15-031, refer to Cremidas v Fenton, 111 NE 855 (Mass 1916), an American case where the plaintiff complained of vibrations to his house caused by the operation of machinery from a factory adjoining his premises. The claim failed. It was found as a fact that the age and unsubstantial construction of the plaintiff’s house were such that “it would shake or jar … even by a person walking across the floor” and that this condition was unavoidable unless all operation of the machinery was suspended. In the light of these findings, the Massachusetts Supreme Judicial Court felt unable to say that, as a matter of law, the decision to dismiss the claim was wrong. Again, the facts of this case seem to me indicative of the kind of extreme circumstances in which the abnormal construction of a building might possibly be relevant.

1. It is unnecessary to reach any concluded view on this question, however, since if there can be cases in which extreme abnormality of the physical attributes of a building may give rise to a claim or to a defence, the present case is on any view not one of them. There is no basis for regarding the glass walls of the claimants’ flats as unusual, either in the context of modern high-rise blocks of flats generally or in the particular locality. Still less is there any basis for suggesting that the glassed design is so aberrant as arguably to put the flats in the category of highly abnormal buildings of which, if it exists, the buildings in the Bank of New Zealand case and Cremidas v Fenton may be examples. The overall architectural design of the Neo Bankside blocks of flats, which have exo-skeletons of steel as well as floor to ceiling windows alternating with some wooden fascias, is striking. But that is not to say that floor to ceiling windows without vertical or horizontal breaks of the kind that it incorporates are unusual, let alone off the scale of anything that could actually be expected. In this action the Tate has never made any such allegation. Nor (so far as the judgment indicates) was there any evidence at the trial to that effect. Both parties adduced evidence from planning experts but the experts did not suggest that what they described in their joint report as the “fully glazed facades” of the Neo Bankside buildings are abnormal or unusual. And the judge made no such finding.

1. There was in these circumstances no factual foundation for the approach adopted by the judge of asking whether the use of the Tate’s viewing gallery would have amounted to a nuisance if the claimants had lived in a hypothetical alternative building designed with “significant vertical and perhaps horizontal breaks to interrupt the inward view” (para 202). The judge’s “imaginary building” was not based on any evidence or information about the type or extent of glass panelling which is normal or represents the outer limit of anything that could be expected in the neighbourhood. There was therefore no basis or yardstick for comparing the Neo Bankside flats with “flats designed with more wall and less window”. To say, as the judge did, that a “differently built, but perfectly acceptable, property … would not have had the same degree of exposure” (para 211) is nothing to the point. There is no justification for regarding the windows of the claimants’ properties as departing from some relevant norm, built as they are.

(3)The possibility of protective measures

1. As part of his “overall assessment” of reasonableness, the judge also thought it would be reasonable for the claimants to take protective measures to avoid being seen from the viewing gallery. He identified three measures as meriting consideration: [2019] Ch 369, para 214. The claimants’ flats are fitted with solar blinds which they could lower during the day - albeit with the loss of their clear view of the outside world and of a certain amount of light. Secondly, they could install privacy film, which reflects the external light outwards - although it does not work when it is dark outside and seeking to install it might have planning implications. The third potential measure would be to install net curtains, which would have the same effect and drawbacks as lowering the blinds. Perhaps because of the uncertainty about the planning implications of privacy film, counsel for the Tate on this appeal emphasised the first and third of these possibilities and submitted that it would have been comparatively simple for the claimants to screen the views of the interiors of their flats by using their blinds or installing net curtains.

1. The judge acknowledged that it is not usually a defence to a nuisance claim to say that the claimant could take remedial steps to avoid the adverse consequences of the defendant’s acts. For example, he noted that “[t]he victim of excessive dust would not be expected to put up additional sealing of doors and windows” and that “the victim of excessive noise would not be expected to buy earplugs”: para 215. However, the judge thought that “this is an unusual case” and that “privacy is a bit different” in that it has become acceptable to expect those who want to enhance their privacy to protect their own interests. He saw this as part of the give and take expected of neighbouring property owners and concluded, at para 215:

   “Looking at the overall balance which has to be achieved, the availability and reasonableness of such measures is another reason why I consider there to be no nuisance in this case.”

1. It is easy to identify where the judge went wrong here because he himself explained the reason. As he noted, it is not a good defence to a nuisance claim for the defendant to say that the claimant could take remedial steps to avoid the consequences of the defendant’s acts. The reason why this is not a good defence is that, far from involving give and take, such an approach is all one way. It places responsibility for avoiding the impact of an activity which causes substantial interference with the ordinary enjoyment of property entirely on the victim rather than on the person who carries out the activity. Arguments of this kind are unsound when relied on to justify any invasion of property rights. It does not avail a trespasser to assert that he would not have wandered onto the claimant’s land if the claimant had erected a fence, or a burglar to argue that the claimant’s house would not have been burgled if the claimant had installed stronger locks. In the same way it is unsound to argue that the defendant’s activity would not violate the claimant’s enjoyment of rights in land if the claimant took measures to prevent this.

1. I cannot agree with the judge that “privacy is a bit different”. In any context it is reasonable to expect those who want more protection from outside interference than the law provides to protect their own interests. For instance, a homeowner may be kept awake or find it impossible to concentrate as a result of noise arising from a normal use of a neighbouring property. If so, then their only recourse is self-protection, for example by using ear plugs. Similarly, someone who cannot stand the smell of their neighbour’s cooking at mealtimes had better close their windows. Visual intrusion is just the same. If the interior of a person’s home can be seen from the windows of houses across the street and the occupants wish to avoid being seen, it is for them to draw their blinds or take other measures of the kind suggested by the judge. But in all these cases the person whose activity causes the interference is using their property in a common and ordinary way. What is not acceptable is to place the burden on the claimant to mitigate the impact of a special use of the defendant’s property. To do so is inconsistent with the principle of reciprocity that underpins the law of nuisance.

1. In the Bank of New Zealand casethe judge made this point clearly. One of the arguments made by the defendant was that the claimants could almost entirely alleviate the dazzling glare caused by sunlight reflected off the defendant’s building by installing and then drawing when necessary darker curtains or blinds. Hardie Boys J rejected that argument (at p 534) on the ground that:

   “To expect these plaintiffs to provide sun barriers on their south-facing windows as part of the give and take of business in the central city would in reality be to require them to accept total responsibility for eliminating the defendants’ nuisance. As I have stated, the law will not require that.”

The same point applies here. The only material difference is that in the present case the interference which it is suggested that the victims should have to accept the responsibility for eliminating does not occur for only a few hours of the day at certain times of year as in the Bank of New Zealand case, but constantly for most of the day, day in and day out.

1. Similar attempts to throw responsibility on the victim have been rejected in other cases. In Miller v Jackson [1977] 1 QB 966 the Court of Appeal upheld a claim brought by the occupiers of a house built next to a cricket ground for nuisance caused by cricket balls being hit onto their land. It was argued by the club that the claimants could take measures to protect their property from the interference by, for example, fitting louvred shutters or unbreakable glass to their windows. In rejecting this argument, Geoffrey Lane LJ said, at p 985:

   “There is no obligation on the plaintiffs to protect themselves in their own home from the activities of the defendants. Even if there were such an obligation it would be unreasonable to expect them to live behind shutters during the summer weekends and to stay out of their garden.”

1. In Webster v Lord Advocate 1985 SC 173 noise made in erecting metal stands between June and August for the annual Edinburgh Military Tattoo caused a nuisance to the owner of a flat overlooking the esplanade at Edinburgh Castle. It was suggested that the flat owner could substantially reduce any annoyance or discomfort from noise by keeping her windows closed. In rejecting this argument, Lord Stott said, at p 181:

   “… I do not think that in dealing with such a situation the pursuer is required to do more than conform to the ordinary habits of life as a reasonable person. In my opinion that does not include a requirement to keep her windows shut throughout the better part of the summer, far less to instal an approved system of double glazing which, of course, would in any event be useless except when the window was closed. … one of the nice things about summer is that you are able to open your windows.”

1. Fifth, the whole law of nuisance is shot through with the need for assessments of reasonableness which take account of the interests on both sides. An objective test of reasonable reciprocity and compromise is clear and workable. Even where there is common and ordinary use in broad terms by both claimant and defendant, the give and take principle requires such assessments of reasonableness to be made, since (in Bramwell B’s words in Bamford v Turnley) the defendant will commit no nuisance only if the offending use is “conveniently done”, ie reasonably and with proper regard to the interests of the other party. Lord Hoffmann made this point in Southwark, at p 16, in discussing Sampson v Hodson-Pressinger [1981] 3 All ER 710 (in which use of a terrace over the plaintiff’s roof was held to be a nuisance because of noise): “in my opinion this decision can be justified only on the basis that having regard to the construction of the premises, walking on the roof over the plaintiff’s flat was not a use of the flat above which showed reasonable consideration for the occupant of the flat beneath. It was not, in Baron Bramwell’s phrase, ‘conveniently done’”; suitable soundproofing was required; conversely, if there had been normal and ordinary user “in a way which shows as much consideration for the neighbours as can reasonably be expected”, there would not have been an actionable nuisance. See also para 200 above. Reasonableness is not a concept without explanatory power in this context. I do not think that there is anything inappropriate about applying an equivalent test of objective reasonableness, by extension, in the circumstances of the present case.

1. Although I would decide this appeal on the basis that the judge has not found that either the Tate’s use of its land or the claimants’ use of theirs was common and ordinary for the area, I also have reservations whether a modified version of the argument presented by Mr Weekes, to say that so long as a claimant’s use of its land is common and ordinary for the area (which, on the judge’s findings, is not this case) then any interfering use by the defendant of its land which is not common or ordinary for the area will qualify as a nuisance (cf paras 48-52 of Lord Leggatt’s judgment above), meets the points above. As I have said, the fact that the claimant’s use is common and ordinary is an important factor, but it may be that a comparatively modest adjustment in the claimant’s use of its land which it would be reasonable to expect it to adopt would be capable of accommodating the defendant’s use by reducing the friction between the competing uses to an acceptable level. If that is so, the claimant’s user should not of necessity trump the ordinary right of the defendant to use its property in a new way, so as to eliminate all question of whether there is scope for a reasonable accommodation of the two uses. In my view, the tort does not operate according to such a mechanistic rule. In principle, an objective test of reasonableness (albeit one which has regard to the ordinariness or otherwise of the use on either side of the equation) is appropriate to frame the balancing of interests which is required in such a case, as in others. This is something which will be highly dependent on the particular facts and a matter for assessment by the trial judge. Since an objective test of reasonableness is necessary to deal with cases where neither of the competing uses is ordinary for the area, I see no sound reason why such a test should become irrelevant just because the claimant’s use of its land is ordinary.

1. Conversely, I think it would be inappropriate to limit the right of a claimant to sue in nuisance to cases where its use of its own land is common and ordinary. It has an equal and opposite right to use its property in new ways, and unreasonable interference by a defendant with that right would constitute a nuisance. What might have been a reasonable use of land by the defendant in the context of the original ordinary use of the claimant’s land might cease to be reasonable (or “convenient”), according to an objective standard, when the claimant seeks to adopt a new use. Also, it is possible that the interference by a defendant landowner might be so intrusive, according to an objective standard of reasonableness appropriate for the locale, that a nuisance could be established even if the use interfered with is not an ordinary use. These considerations all point in favour of the appropriateness of a more open-textured objective reasonableness standard, which is fact-sensitive in its application across the whole range of possible cases. As I have observed at para 205, it is because the Tate’s use of its land is capable of giving rise to liability in nuisance and is part of the reason that friction has arisen that conditions as to its use can be imposed, and that is so even though the claimants’ use of their land is not common or ordinary in this locale.

1. Sixth, a test based on common and ordinary use by the defendant is contrary to the way the relevant principle is formulated in the modern authorities. The words used by Bramwell B in Bamford v Turnley are not a statute and should not be interpreted as such. It is fair to say that he focused in that case on the question of whether the defendant’s use of his land was common and ordinary, but the “rule of give and take, live and let live” is a general test of objective reasonableness. It is that formulation which has been approved in the recent cases at the highest level, where it has been described as a rule of reasonableness; deliberately so in my opinion (see paras 158-159 above).

1. As Lord Carnwath noted in Lawrence (para 179) there has been some academic criticism of the criterion of reasonableness as not having explanatory force (see Allan Beever, The Law of Private Nuisance (2013), pp 9 et seq); but nonetheless in his judgment in Biffa Waste (para 72) and again in Lawrence (para 179) he affirmed Tony Weir’s summation of the objective reasonableness test (para 159 above). In Lawrence, at para 5, in a part of his judgment with which all the other justices concurred and which is central to his analysis, Lord Neuberger agreed with Lord Carnwath’s judgment at para 179 and affirmed that reasonableness is to be assessed objectively. So that particular criticism has been rejected.

1. I do not consider that this is surprising. An objective test of reasonableness informed by the standards of the locale provides a satisfactory test with determinate explanatory effect. There are many areas of the law where an objective test of reasonableness is applied as the appropriate standard to govern relations between parties with conflicting interests, and there is nothing unusual about its adoption as part of the common law of nuisance. Moreover, as Beever himself acknowledges, the conventional view among commentators is that the question of the reasonableness of the defendant’s conduct, judged according to an objective standard, is central: see eg WVH Rogers, Winfield and Jolowicz on Tort, 18th ed (2010), p 714); Professor R Buckley, The Law of Negligence and Nuisance, 6th ed (2017), pp 259-260; J Murphy, The Law of Nuisance (2010), p 5; N McBride and R Bagshaw, Tort Law,6th ed (2018), pp 399 and 404; and Tony Weir (para 159 above) and Professor Goodhart (para 164 above). Accordingly, I think that the alternative approach does not affirm established principle, but instead would constitute a major change in the law, by elevating one factor (whether the defendant’s use of its land is common and ordinary) to unjustified prominence.

1. Lord Leggatt and I interpret Lord Goff’s speech in Cambridge Water (para 158 above) in different ways. As I understand his judgment, Lord Leggatt interprets Lord Goff’s use of the term “reasonable user” as a shorthand for “common and ordinary use”. In my opinion, however, Lord Goff was endorsing an objective reasonableness test informed by the basic principle of give and take, according to which (as one example) if a defendant’s use of its land is common and ordinary and is carried on in a “convenient” (ie reasonable) manner, that will satisfy the test. I find it difficult to see why Lord Goff would describe the principle as one of “reasonable user” if he intended that to have no wider conceptual role to play beyond examination of whether the defendant’s use of its land was common and ordinary.

1. Moreover, Lord Goff’s reasoning in the case shows that he did indeed intend that the principle as so formulated should have a wider analytical role. The question was whether the defendant was liable for spillage of certain chemicals used in tanning on the defendant’s land, which seeped onto the claimant’s land with the result that it could not make use of an expensive borehole to extract water. Although the case was primarily concerned with the rule in Rylands v Fletcher (1868) LR 3 HL 330, Lord Goff also examined the law of nuisance. He was clear that the defendant’s use of its land for storage of chemicals was not “natural or ordinary” (p 309) and it was plain that the use had caused a substantial interference with the claimant’s enjoyment of its land. There was no suggestion that the claimant’s use of its land was other than ordinary. Yet, as Lord Goff explained, the defendant was not liable in nuisance. This was because the defendant could not reasonably have foreseen that its use would cause harm to the claimant, and on this basis the defendant’s use of its land did not infringe the principle of reasonable user (p 306). In my view, this conclusion shows that Lord Goff was referring to a wider test of reasonable user which took account of the fact that the defendant’s use of its land was not common or ordinary, but allowed for that factor to be outweighed by other factors relevant to application of that test.

1. Similarly, Lord Wright’s influential formulation in Sedleigh-Denfield (para 211 above), often cited, is based on the concept of reasonableness between neighbours. The defendants in that case were held liable in nuisance for flooding of a neighbour’s land arising from the blocking of a narrow drainage culvert on the defendants’ land by leaves and debris. The culvert had been laid by a stranger who was a trespasser, but the defendants were aware of its existence. There was no suggestion that the claimant’s use of his land, as interfered with by the flooding, was other than ordinary. The House of Lords did not ask whether the defendants’ use of their land was common or ordinary. Lord Atkin, for example, analysed the case in terms of the knowledge of the defendant of the culvert and “the reasonable expectation that it might be obstructed and of the result of such obstruction” (p 896). Lord Wright applied the principle of reasonableness which he had articulated. Lord Romer likewise said that the occupier of land “is liable for a nuisance existing on his property to the extent that he can reasonably abate it” (p 919) and held that the defendants “ought … as reasonable persons to have recognized the probability, or at least the possibility of a flood occurring” (p 920).

1. That reasonableness in the relevant sense is the governing principle of liability in nuisance was again explicitly affirmed by Lord Cooke of Thorndon in Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55, [2002] 1 AC 321, with whose speech the other members of the Appellate Committee agreed. The case concerned liability in nuisance for remedial expenses in relation to intruding tree roots. At para 29 Lord Cooke said: “… I think that the answer to the issue falls to be found by applying the concepts of reasonableness between neighbours (real or figurative) and reasonable foreseeability which underlie much modern tort law and, more particularly, the law of nuisance. The great cases in nuisance decided in our time have these concepts at their heart”; he referred in particular to Sedleigh-Denfield.

1. Finally, I do not think that it is possible to bracket the design of buildings from other uses made of land. The way in which a landowner builds on its land is a mode of use of that land. To say otherwise would create an uncertain and unjustified boundary between building on land and other kinds of use of land. To take this case, the friction between the Tate’s use of its land and the claimants’ use of their land arose in part from the design of the buildings constructed on their respective properties and in part from the use to which the claimants put the winter gardens. The Tate’s building design incorporated a viewing platform; the predominantly glass design of the claimants’ flats meant that their residential areas were particularly exposed to view. An approach based on the principle of reasonable reciprocity and compromise and objective reasonableness allows these factors to be taken into account in a principled manner.

1. Lord Leggatt accepts that the physical attributes of a building could be relevant in “extreme cases of abnormal construction”. However, in my opinion there is no sound basis for limiting the significance of choice of building design in this way. I also consider that such a dividing line would be unclear and capable of producing arbitrary distinctions between cases.

1. For these reasons, it is my view that an approach based on the principle of reasonable reciprocity and compromise and application of a standard of objective reasonableness informed by the character of the relevant locality is preferable to one based simply on whether the defendant’s use of its land is “common and ordinary”.

The approach of an appellate court

1. In Lawrence Lord Neuberger said (para 59) that “[t]he assessment of the character of the locality for the purpose of assessing whether a defendant’s activities constitute a nuisance is a classic issue of fact and judgment for the judge trying the case.” See also Lawrence,para 190, per Lord Carnwath: in cases concerning whether a change in the intensity or character of an activity constitute a nuisance, it is “a matter for the judge, as an issue of fact and degree, to establish the limits of the acceptable”. As noted above, the question whether a nuisance is established in a particular case in the light of the assessment of the character of the locality has also always been treated as a matter for the jury or the judge as the trier of fact. An appellate court will be slow to second-guess their assessment unless there is a misdirection regarding the test to be applied.

1. This reflects the nature of the “give and take” principle, which turns on issues of reasonableness in the use of property and reasonableness as between neighbours. In Biogen Inc v Medeva plc [1997] RPC 1, a case in which the House of Lords declined to interfere with an evaluative judgment by the first instance judge regarding the obviousness of an invention, Lord Hoffmann explained (p 45) the reason why an appellate court should be slow to intervene in cases involving, like this one, questions of fact and degree in the application of an established and open-textured legal principle:

   “The need for appellate caution in reversing the judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation. It would in my view be wrong to treat Benmax [Benmax v Austin Motor Co Ltd [1955] AC 370] as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved. Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation.”

See also In re Grayan Building Services Ltd (in liquidation) [1995] Ch 241, 254 per Hoffmann LJ: “generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standard [… has] been met, the more reluctant an appellate court will be to interfere with the trial judge’s decision”.

1. Lord Hoffmann’s observation in Biogen is particularly apposite in the present case, where Mann J had heard a great deal of evidence about the precise degree of visual intrusion experienced by the claimants and conducted a site visit. It would have been impossible for him to express every nuance of the evidence which led him to his conclusion. As it is, he produced a formidable judgment explaining his reasons for his conclusions in considerable detail. Neither the Court of Appeal nor we can hope to match the way in which he was steeped in the detail of the case.

Mann J’s decision

1. Having decided that in principle the law of nuisance can apply in cases of invasion of privacy by visual intrusion in relation to a residential property, Mann J turned to consider whether the claimants had established an actionable nuisance on the facts of this case. At para 130(iv) he directed himself by reference to Lord Neuberger’s judgment in Lawrence, paras 3-5. At para 180 Mann J again explained that he based his judgment on the law as outlined by Lord Neuberger in Lawrence and asked whether “the Tate …, in operating the viewing gallery as it does, is making an unreasonable use of its land, bearing in mind the nature of that use, the locality in which it takes place, and bearing in mind that the victim is expected to have to put up with some give and take appropriate to modern society and the locale”.

1. Mann J found that the history of the grant of planning permission for the Blavatnik Building to the Tate provided no helpful guidance. He characterised the locality as an inner-city urban environment with a significant amount of tourist activity, in which anyone would expect to live cheek by jowl with neighbours; and he noted that the claimants acknowledged this to the extent that they did not object to the fact that they were overlooked from the windows of the Blavatnik Building: para 190. He found that the Tate was making reasonable use of its land; the operation of a viewing gallery was not an inherently objectionable activity in the neighbourhood: para 196.

1. Having made a site visit, Mann J was well placed to make findings as to the nature of the locale: para 87. At para 130 he cited Sturges v Bridgman and Sedleigh-Denfield and was well aware that the assessment of nuisance needed to be made taking into account the characteristics of the area (see also para 180). In characterising the locality as he did, Mann J established what the reasonable standard of privacy was for the particular locale. This provides the necessary context for the discussion at paras 200-206 of whether hypothetical flats “designed with more wall and less window” would have had cause for complaint.

1. Mann J’s object was to assess whether a building designed more in keeping with the standards of privacy to be expected in the locale at Neo Bankside would suffer a greater degree of invasion of privacy than would be reasonable for that locale, which he characterised as “a modern urban, cultural tourist-attracting environment” (para 203). He concluded that it would not, meaning that the owners/occupiers/developers of a dwelling designed with an especially heightened vulnerability to the external gaze in that locale also could not complain: para 203.

1. His assessment was that the claimants’ use of their land, by adoption of the open design of the flats, is unusual by the standards of the locality. He stated that in using their properties as dwellings the claimants are “[a]t one level … using their properties in accordance with the characteristics of the neighbourhood” (para 200), thereby indicating that at another level they are not. He expanded on this at para 201 by referring to the specific complaint of the claimants, “that their everyday life in the flats is on view because of the nature of the view … [ie] the complete (or largely complete) view that one has of the living accommodation from the viewing gallery”; and by pointing out that this “arises (obviously) because of the complete glass walls of the living accommodation”. He therefore explained that he would consider whether the claimants would have had a complaint if they had lived in flats designed “with more wall and less window”, since if so they would still have a complaint in nuisance irrespective of the particular design they had adopted (ie there would have been undue interference with their property rights according to the objective reasonableness test appropriate for the particular locality). If, on the other hand, they would not have a complaint in nuisance in such circumstances, then he would have to consider whether they would none the less have a cause of action, arising out of the glass construction.

1. That Mann J considered the claimants’ flats to be atypical for residential use in the locale is apparent from his description of them as “particularly sensitive” due to an “increased exposure to the outside world”: paras 206 and 211. Though not of itself unreasonable, Mann J considered that the atypical design of the flats in the context of the standards of privacy reasonably to be expected in that locale was a relevant factor in determining the overall reasonableness as between the parties, according to an objective assessment. In my view, that analysis cannot be faulted.

1. He found that the claimants would have had no valid complaint if they had lived in flats constructed according to a conventional design, “with more wall and less window”: paras 200-203. Against the background of that assessment, he turned to the second issue he had outlined in para 201 and in that context drew the analogy with the nuisance cases about sensitive users to which I have referred above. He concluded that it would be wrong for the self-induced incentive to gaze into the flats associated with their exceptionally open design to create a liability in nuisance: paras 204-211.

1. The judge also relied on the ability of the claimants to take self-help measures, if they chose, in the form of blinds, privacy film, curtains or other kinds of screening to protect their privacy; he noted that these might detract from their living conditions, “but not to an unacceptable degree”: paras 213-215. As he rightly observed, the victim of excessive dust would not be expected to put up additional sealing of doors and windows and the victim of excessive noise would not be expected to buy earplugs, but “privacy is a bit different”; susceptibilities and tastes differ and it is “acceptable to expect those wishing to enhance it to protect their own interests” to some degree (para 215). He referred to a point made by some of the claimants about the presence of children in the flats, but pointed out that they did not have relevant rights in nuisance of their own as they are not landowners and held that their interests did not add anything substantial to the significant interests of their parents or grandparents associated with their property rights: para 217.

1. At the end of this section of his judgment Mann J said (para 220) that the assessment he had carried out was the usual one applicable to nuisance, but also added that he would have made the same assessment to conclude that the claimants did not have a reasonable expectation of privacy for the purposes of analysis under article 8 of the ECHR. It is clear that his assessment of the appropriate balance of interests for the purposes of application of the law of nuisance did not depend in any way upon his analysis of the position under article 8.

Criticisms by the Court of Appeal

1. The Court of Appeal criticised Mann J’s judgment on this issue on two grounds: (i) he was wrong to draw the analogy with sensitive users of property as illustrated by Robinson v Kilvert (above): the claimants had no undue sensitivity as individuals and their activity in using their flats (ie without employing screening) was “ordinary and reasonable” and did not fall foul of the objective reasonable user test for nuisance; there was no finding that the viewing gallery is “necessary” for the common and ordinary use and occupation of the Tate within Bramwell B’s statement in Bamford v Turnley set out above; and (citing Miller v Jackson [1977] QB 966) there could be no question of any need on the part of the claimants to take any self-help steps to prevent the visual intrusion which was happening: paras 98-99; and (ii) there was no suggestion that the claimants are using their flats otherwise than in a perfectly normal fashion as homes, and the judge’s approach to balance their interests against those of the Tate was contrary to the general principles of private nuisance: paras 100-102.

Assessment

1. Mr Weekes supported the reasoning of the Court of Appeal on this issue.

1. Mr Weekes also submitted that Mann J had made an elementary error similar to that made by the trial judge in Bamford v Turnley, as criticised by the appeal court in that case, of asking simply whether the Tate’s use of its own property was reasonable, assessed without reference to the interests of the claimants as neighbouring landowners.

1. In my view, this submission cannot be sustained. It is clear that the judge addressed the relevant question, which was the application of the “give and take” principle, and that he considered the reasonableness of the Tate’s use of its property in the wider sense explained by (in particular) Lord Goff in Cambridge Water and Lord Neuberger in Lawrence, taking into account the interests of the claimants as well as the Tate and having regard to the nature of the neighbourhood in seeking to identify a reasonable balance between them.

1. I also consider, with respect, that the criticisms of Mann J’s judgment by the Court of Appeal are wrong. In essence the Court of Appeal asked whether the claimants’ use of their own property, judged without reference to the interests of the Tate as a neighbouring landowner, could be said to be reasonable. Having concluded that it was reasonable according to this standard, they thought that the judge fell into error by treating the claimants’ interests and rights as regards the use of their property as falling to be qualified by reference to the use to which the Tate wished, reasonably, to put its own property. But in my view that is to misapply the “give and take” principle and, in effect, repeats the error of the trial judge in Bamford v Turnley from the opposite direction. It gives excessive weight to the reasonableness of use by one of the landowners whose interests conflict, in this case the claimants, assessed without reference to the reasonable interests of the other landowner regarding the use of their own property. Proper application of the “give and take” principle means that the reasonable interests on both sides regarding the free use of their respective properties have to be taken into account.

1. In my judgment, the first reason given by the Court of Appeal gives insufficient weight to the reasonable interest of the Tate in making use of its own property as it wishes in a particular way, by operating the viewing gallery, which the judge found to be reasonable when assessed by reference to the nature of the locality. The Court of Appeal said that this use was not “necessary” (quoting Bramwell B) for the common and ordinary use of the Tate’s property. In framing the balance between competing rights and interests in this way I consider that the Court of Appeal inappropriately treated the language used by Bramwell B like the text of a statute and lost sight of the underlying principle which he was seeking to lay down. In consequence, they distorted the “give and take” principle by setting the interest of the claimants to use their property in a way which was reasonable (judged from their own perspective) against a requirement that the Tate’s use of its property had to satisfy a higher standard of being “necessary”. There is no good reason in principle why the test should be weighted against one of the competing property owners in this way. The Tate’s use of its property to create a viewing platform may not have been conventional, but in my opinion the Court of Appeal’s approach fails to acknowledge that the “give and take” principle is directed to reconciling the competing freedoms of property owners to use their property as they see fit, as was emphasised in Hunter.

1. In my view, the judge’s approach to the application of the “give and take” test was correct. Property owners in this part of London have to expect to be overlooked to a significant degree and the risk of people being able to look through their windows from neighbouring properties is an inevitable part of community life in the area. It is normal to expect people to use curtains, blinds and other screening measures to limit the annoyance which that might cause. As the judge rightly observed, the nature of the nuisance alleged (visual intrusion) is significant. He found that the Tate’s viewing gallery would not have constituted a nuisance if Neo Bankside had been built and the winter gardens had been used in a way which did not involve heightened sensitivity to that form of intrusion and which did not invite “the consequence of an increased exposure to the outside world”, beyond that to be expected by the “appropriate measure” for the area: paras 205-206 and 208-211.

1. However, the owners of the land at Neo Bankside chose to develop it by building striking buildings of architectural distinction likely to attract attention and the gaze of strangers. The particular design emphasised an open aspect for the inhabitants looking out and necessarily thereby created a particular degree of openness to people looking in. The building was constructed so as to involve a heightened degree of sensitivity to the ordinary feature of being overlooked in this particular urban environment and by their use of the winter gardens the claimants increased their exposure to visual intrusion still further. The owners of the flats at Neo Bankside could not acquire any right vis-à-vis neighbouring landowners to maintain their aspect looking out, since that would interfere to an unacceptable degree with the rights of neighbouring landowners to develop their own land for use as they wished. Nor in my view could they acquire any right against being overlooked and subjected to visual intrusion which would be seriously burdensome in terms of preventing neighbouring landowners developing their own land for use as they wished, to a degree beyond that which would be regarded as reasonable for the area.

1. In assessing what was a reasonable balance to strike between the competing interests and property rights of the claimants and the Tate in the context of the particular neighbourhood and in light of the nature of the particular nuisance alleged (ie by visual intrusion), I consider that the judge was entitled in the circumstances to have regard to the availability of self-help measures which it was not unreasonable to expect them to take.

1. Miller v Jackson (above)does not rule this out as a matter of principle. It was a very different case, involving dangerous invasion of the claimants’ property by flying cricket balls struck from the neighbouring cricket ground. They broke windows and tiles on the roof and created the risk of personal injury to the claimants, particularly when using their garden. As Lord Neuberger emphasised in Lawrence, at para 54, the case was concerned with nuisance through physical encroachment on property and potential physical damage to the claimants and their property, rather than by an assault on the senses. There was no difficulty in that case in finding that a physical encroachment of that kind clearly did interfere with the ordinary amenity attaching to the property, and the issue was whether this conclusion was affected by the fact that the claimants refused offers by the defendants to provide certain protective measures. The claimants claimed injunctive relief to compel the defendants to stop playing cricket on the ground until they had erected a barrier of sufficient height to prevent the encroachment by cricket balls. The defendants said that the claimants should have accepted alternative protective measures, for which the defendants offered to pay, by fitting unbreakable glass or shutters and by fixing a net over the garden to stop the balls landing there. The majority in the Court of Appeal (Geoffrey Lane and Cumming-Bruce LJJ) held that a nuisance was made out. Geoffrey Lane LJ said (p 985) that there was no obligation on the claimants to protect themselves in their own home from the activities of the defendants; in any event it would have been unreasonable to expect them to live behind shutters and stay out of their garden; and the net idea was impracticable, in that it would have required the construction of supports in the garden and it was not reasonable to expect the claimants to consent to that. Cumming-Bruce LJ agreed with these points. These observations were directed to the particular circumstances of that case and do not suggest that the availability of self-help measures is irrelevant in every case. The position in Miller v Jackson is consistent with the test set out in para 215 above.

1. By contrast, in this case the prior and more difficult question is whether overlooking, which does not normally constitute a nuisance, is occurring in circumstances sufficiently unusual to make it an actionable form of annoyance. As Mann J emphasised (para 215), application of the “give and take” principle in relation to visual intrusion should take account of the distinct nature of the annoyance involved. The case-law which addresses this kind of nuisance most directly refers to the relevance of self-help measures which it is reasonable to expect the claimant to make use of: Victoria Park Racing and Martin v Lavigne.

1. As to the second point of criticism by the Court of Appeal, again I consider that the judge was correct in the approach he adopted. The Court of Appeal misapplied the “give and take” approach by taking insufficiently into account the interests of the Tate as property owners.

1. In his submissions, Mr Weekes emphasised that the use to which the claimants wish to put their flats, to live in them without the need for any kind of screening against visual intrusion from the outside, is reasonable. So it is, looking at it solely from their point of view. But in my judgment, though that is of course a relevant factor, it cannot be a sufficient basis for the grant of an injunction to prevent the Tate using its property as it wishes reasonably to do, any more than the reasonable use by the defendant of his own property in Bamford v Turnley was a sufficient ground for refusing the grant of an injunction, which would have had the effect of requiring the claimant to put up with the detrimental impact on his property arising from such use.

1. A prominent feature of this case is that, according to the judge’s findings, both the claimants and the Tate wish to use their respective properties in ways that are reasonable from their respective self-regarding perspectives, but in circumstances which were not established as common or ordinary for the area at the time their respective properties were developed. In my view, Mann J was right to assess their competing claims against an objective standard involving comparison with the established usual design for a residential block in the area, with normal window arrangements. Assessed against that standard, the Tate’s operation of the viewing gallery did not involve a nuisance. The owners of the flats in Neo Bankside could not turn the operation of the viewing gallery into a nuisance by reason of the development of their own property according to a design which was out of line with the norm for the area.

1. For these reasons, I consider that the various criticisms made of the judge cannot be supported. His approach to the application of the “give and take” principle was correct. The factors to which he referred and to which he gave particular weight were relevant and he was entitled to make the assessment he did. In my opinion, there are no good grounds on which an appellate court could interfere with that assessment.

Conclusion

1. For the reasons given above, which differ from those given by the Court of Appeal but reflect those given by Mann J, I would have dismissed this appeal.

Remedy and Disposal

1. I should comment briefly on one matter arising from the disposal of the appeal which the majority favour, in view of the fact that the question of remedy is to be remitted to a court at first instance. Other than when a split trial has been ordered to address liability and remedy in separate hearings, the ordinary rule is that it is incumbent on a party to litigation to bring forward their whole case at trial: see, eg, Sainsbury’s Supermarkets Ltd v Visa Europe Services LLC [2020] UKSC 24; [2020] Bus LR 1196, paras 235-243. This rule reflects the public interest in the efficient and proportionate resolution of disputes and the requirement of fairness in litigation. Parties are entitled to know where they stand at trial so that they can make their decisions relating to the conduct of the litigation with an appreciation of what issues are to be determined then. Also, they ought not to be vexed by the reformulation of claims in successive suits: see, in particular, the explanation of the rule in Henderson v Henderson (1843) 3 Hare 100 by Sir Thomas Bingham MR in Barrow v Bankside Members Agency Ltd [1996] 1 WLR 257, at 260.

1. The application of the principle of finality in the context of this case, when it is remitted, will need to be considered. In Lawrence, Lord Neuberger said (para 149) that “a defendant who wishes to argue that the court should award damages rather than an injunction should make it clear that he wishes to do so well in advance of the hearing, not least because the claimant may wish to adduce documentary or oral evidence on that issue which she would not otherwise consider relevant.” This statement implies that the principle of finality should apply in a nuisance claim, including in relation to a decision to award damages in place of an injunction. There seems to be good reason to expect the same approach from a claimant, if they wish to argue for damages as a fall-back option if injunctive relief is refused, so that the court can address all issues with finality at the trial.

1. In the present case, there was no order for a split trial. Mann J recorded (para 27) that the only remedy claimed in the particulars of claim was injunctive relief and that Mr Weekes said that if an injunction was not available he would seek damages instead; as Mann J observed, “[t]hat would need an inquiry, which was not conducted at the trial.” It is not clear whether the judge was simply noting Mr Weekes’s position or was intimating that the claimants would be entitled to proceed in this way, by asking to come back for an additional hearing. At paras 222-223, Mann J contemplated that, had he found that there was a nuisance, further consideration would have needed to be given to the question of remedy. Quite what this may properly involve, having regard to the principle of finality, is something which the first instance court will need to consider when the case is remitted to it.