View from the bar: Overlooking is not a nuisance

All law students learn at an early stage the distinction between the criminal law, by which (usually) the state prosecutes individuals or companies who have transgressed rules designed to govern the way in which we live, and the civil law, which governs rights between individuals, without involving a criminal sanction. Famously, therefore, the sign saying “Bill stickers will be prosecuted” is a nonsense, because the sticking of bills is simply a trespass, not a prosecutable criminal offence. Having said that, such a sign did enable JRR Tolkien to create a short story for his children based on the notorious activities of the underworld criminal Bill Stickers – so it has had its uses. Development of the law Trespass was an early example of what lawyers refer to as torts – ie civil rather than criminal wrongs – and provided a remedy where somebody occupied another’s land without consent. It was obvious that land rights would be among the first to be protected in a society where ownership of land was critical to power, wealth and status. The tort of nuisance was soon to follow in the Middle Ages, initially as something designed to protect easements such as rights of way and rights to light, but soon broadening in its scope to ensure that everyone must so use their land as not to do damage to another’s. Thus it was that Lord Chief Justice Holt (incidentally, he who it is said played a major role in ending the prosecution of witches in English law) was able to state in a late 17th century judgment that every man “must keep in the filth of his house of office that it may not flow in upon and damnify his neighbour”. As society became more organised and urbanised and eventually industrialised, so the range of activities which were inimical to land use expanded. In his first sentences in Bleak House 167 years ago, Charles Dickens wrote of “Smoke lowering down from chimney-pots, making a soft black drizzle, with flakes of soot in it as big as full-grown snowflakes – gone into mourning, one might imagine, for the death of the sun. … Fog everywhere. Fog up the river, where it flows among green aits and meadows; fog down the river, where it rolls deified among the tiers of shipping and the waterside pollutions of a great (and dirty) city.” This was largely due to coal burning, which worsened dramatically in the following decades: domestic coal consumption in Britain rose from 60m tons in 1854 to over 180m tons in 1900. Industrial processes such as bleaching and dyeing added to the problem. Legislation was slow to catch up, leaving landowners affected by pollution to resort to the courts. A series of decisions from the past two centuries mapped out the scope of the tort of private nuisance, applying it to noise, smell, vibration, electro-magnetic interference, mishit golf and cricket balls, and invasive weeds. In the great corpus of cases which now sets the boundaries of the tort of private nuisance, one feature is clear: nuisance is a property tort, involving a violation of real property rights. This has two important consequences. First, occupiers of land with no property rights have no cause of action in nuisance, no matter how badly affected they might be by a neighbour’s activities. Secondly, it is only recognised property rights that are protected. The judgment in Fearn It was this second consequence that was tested in Fearn v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104; [2020] PLSCS 22. The case was brought by the long leasehold owners of glass-walled flats that were overlooked by the Tate Modern viewing gallery, some 30m away. They claimed that visitors to the gallery breached their rights to privacy by relentless and intrusive surveillance, made worse by the use of cameras and social media. This was said to be a private nuisance. At first instance, Mann J agreed that, had it been necessary to do so, he would have been minded to conclude that the tort of nuisance would probably have been capable, as a matter of principle, of protecting privacy rights, at least in a domestic home. However, he went on to hold that the claimants were occupying a particularly sensitive glass-walled property, which they were operating in a way which had increased the sensitivity, through not taking the protective measures available to them, such as using net curtains or blinds during the gallery opening hours. As he held: “It would be wrong to allow this self-induced incentive to gaze, and to infringe privacy, and self-induced exposure to the outside world, to create a liability in nuisance.” The Court of Appeal disagreed with this analysis, but upheld the result, on the basis that the overwhelming weight of judicial authority was that mere overlooking is not capable of giving rise to a cause of action in private nuisance. There were important policy reasons for not extending the law in the way sought by the claimants. First, it would be difficult to apply an objective test in nuisance for determining whether there had been a material interference with the amenity value of the affected land. Secondly, the court considered that it was relevant to take account of other ways for protecting owners of land from overlooking, in particular planning laws and control. Thirdly, what might be said to be the issue in overlooking cases, and in the present case, was invasion of privacy rather than damage to an interest in property. There are already other laws which bear on privacy, and this is an area in which the legislature is better suited than the court to weigh up competing interests. Privacy is an area which requires a detailed approach which can be achieved only by legislation, rather than the broad brush of common law principle. For these reasons the Court of Appeal found it preferable to leave it to parliament to formulate any further laws perceived to be necessary, rather than to extend the law of private nuisance. Guy Fetherstonhaugh QC is a barrister at Falcon Chambers