INTRODUCTION – ‘VISUAL INTRUSION’ AND THE CASE OF FEARN
Fearn v Board of Trustees of the Tate Gallery
A discussion of visual intrusion and the tort of nuisance can only begin in one place: the Blavatnik Building at the Tate Modern art gallery in London. This building, and in particular the viewing gallery on its top floor, was at the centre of the dispute in Fearn & Ors v Board of Trustees of the Tate Gallery.[1] The claim was brought by several residents in the nearby Neo Bankside residential development, which consisted of a block of flats with floor to ceiling glass windows. Visitors to the Tate had ‘a clear and uninterrupted view of how the claimants seek to conduct their lives,’[2] and utilised this view to the full: ‘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.’[3]
It is perhaps little surprise that the occupiers of those flats sought to put a stop to this intrusion. They brought a claim against the Tate, relying, amongst other grounds, on the cause of action of nuisance. At first instance,[4] Mann J dismissed the claim. In doing so, he recognised the potential for intrusive viewing to form the basis of a cause of action in nuisance, but nevertheless, having applied what he considered to be the correct test of ‘reasonable user’, he found that Tate’s use of the viewing gallery was not tortious. The claimants appealed the first instance decision, and the matter was heard by the Court of Appeal,[5] with a bench consisting of Sir Terence Etherton MR, Lewison LJ and Rose LJ. The appeal was dismissed, the court unanimously determining that “overlooking” could not give rise to a cause of action in nuisance.
The claimants appealed again to the Supreme Court. By a majority of three (Lord Leggatt, Lord Reed PSC and Lord Lloyd-Jones) to two (Lord Sales and Lord Kitchin), the Court of Appeal’s decision was overturned. In the lead judgment, Lord Leggatt affirmed that visual intrusion could give rise to a cause of action in nuisance, and that the invitation by the Tate of hundreds of thousands of members of the public onto its viewing platform constituted a tortious interference with the claimants’ use of their land.
The circumstances of Fearn are somewhat unique. Nevertheless, Lord Leggatt’s judgment has opened the door to visual intrusion as a novel species (in a loose sense) of nuisance, in particular of nuisance for the interference with the use and value of land. Fearn’s greatest contribution to the law of nuisance may well prove to be its evaluation and restatement of the test for liability under this cause of action which, at least in the eyes of the dissenting minority, is a departure from the prior position.
A consideration of visual intrusion is therefore indivisible from a discussion of Fearn, and this work will seek to locate the place of both in the wider context of the tort of nuisance. Further, as noted by Lord Carnwath in the Supreme Court case of Lawrence v Fen Tigers Ltd,[6] prior to that case nuisance, in particular nuisance for interference with the use of land, was an area that had received little attention at the highest level.[7] A review of the principles arising out of both Lawrence and Fearn is therefore useful, and the introduction of visual intrusion to the tort provides the opportunity to do so.
‘Visual Intrusion’
It is first necessary to consider exactly what is meant by the term ‘visual intrusion.’ It is an expression used only once in the judgment of Mann J at first instance in Fearn[8] and not at all by the Court of Appeal. In the Supreme Court, by contrast, it is the chosen description for the offending interference that gave rise to liability, both conceptually and on the facts of the case,[9] and is likely to be the name by which this particular species of nuisance will be referred to going forward. A definition of sorts is given by Lord Leggatt:
“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”[10]
In order words, the act complained of is not an intrusion on the vision of the complainant, but rather the interference with the complainant’s use of their property by the intrusive vision of another. The distinction is an important one, as it separates what may fall within the scope of ‘visual intrusion’ from those cases, such as the right to light cases or, as in Hunter v Canary Wharf Ltd[11], interference with the claimant’s television arial, in which conceptual liability in nuisance has long been established.
One further important point in respect of the definition is that, in this context, it is not synonymous with ‘overlooking’. The phrase ‘overlooking’ received extensive consideration in Lord Leggatt’s judgment, and indeed was the nomenclature for the prospective cause of action rejected by the Court of Appeal. The distinction, as will be examined in Chapter Three, is an important one: whilst ‘visual intrusion’ is capable of amounting to a tort, ‘mere overlooking’ is not.
It is the aim of this work to bring some clarity to the phrase ‘visual intrusion’, by placing Lord Leggatt’s discussion of the term in the context of the wider cause of action of nuisance. In Chapter One, the nature and loose categorisation of nuisance will be looked at, with visual intrusion located within that structure, before some of the essential elements of the cause of action are considered. Chapter Two will consider in more detail Lord Leggatt’s lead judgment in the Supreme Court in Fearn on the question of what constitutes a ‘substantial interference’, and in particular its relationship to the principle of reasonableness. In Chapter Three examples of the type of conduct that may amount to visual intrusion, both as given in Fearn and arising from other case law, will be explored. Chapter Four will look at some defences that may be available to visual intrusion claims, as well as principles and arguments that have been held not to amount to defences. Chapter Five will consider the remedies that may be available in a visual intrusion claim, focussing on injunctive relief, damages in lieu of an injunction, and damages generally.
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[1] Fearn & Ors v Board of Trustees of the Tate Gallery [2024] AC 1 (SC)
[2] Fearn & Ors v Board of Trustees of the Tate Gallery [2024] AC 1 (SC) [2]
[3] Fearn & Ors v Board of Trustees of the Tate Gallery [2024] AC 1 (SC) [5]
[4] Fearn & Ors v Board of Trustees of the Tate Gallery [2019] Ch. 369 (HC)
[5] Fearn & Ors v Board of Trustees of the Tate Gallery [2020] Ch. 621 (CA)
[6] Lawrence v Fen Tigers Ltd [2014] AC 822
[7] Lawrence v Fen Tigers Ltd [2014] AC 822 at [175]
[8] Fearn & Ors v Board of Trustees of the Tate Gallery [2019] Ch. 369 (HC) at [17]
[9] Fearn & Ors v Board of Trustees of the Tate Gallery [2024] AC 1 (SC) at [104]
[10] Fearn & Ors v Board of Trustees of the Tate Gallery [2024] AC 1 (SC) at [16]
[11] Hunter v Canary Wharf Ltd [1997] AC 655