by John MacLeod, Senior Lecturer in Private Law at the University of Edinburgh.
The UK Supreme Court’s decision in Fearn v Board of Trustees of the Tate Gallery  UKSC 4,  2 WLR 339 generated an unusual degree of interest for a private law decision with reports and commentary in a number of newspapers (helpfully collated here). Much of this is no doubt due to the Tate being such a well-known institution but the case also represents an interesting development in the law of nuisance.
The claimants were the leaseholders of flats in London directly opposite the viewing gallery at the top of the Blavatnik Building, which is part of the Tate Modern. The flats had floor-to-ceiling windows. This meant that the viewing gallery’s visitors (who numbered several hundred thousand per year) had a direct view into the claimants’ flats. It can readily be imagined that this was undesirable for the claimants but there was considerable doubt about whether they had any remedy of in the law of nuisance.
Doubts focused on two questions: 1) whether “overlooking” can, as a matter of principle, ever amount to a nuisance and 2) how courts should approach the question of determining whether a given interference in a particular case.
An open-textured or a structured approach?
The second question divided the UK Supreme Court. Lord Sales and Lord Kitchen (in paras 209ff) considered that the basic approach was application of “the principle of reasonable reciprocity and compromise (‘give and take’)”. This involved a global assessment of the proper resolution to the conflict of interests between neighbours including, most controversially, assessment of the steps which the claimant might have taken to reduce the impact of the interference. The majority resisted such a generalised analysis, favouring instead a more structured approach.
This involved asking “whether the defendant’s use of the land has caused a substantial interference with the ordinary use of the claimant’s land” (para 21) and then applying the principle of “reasonable user” (paras 29ff). The classic statement of the latter principle is found in Bramwell B’s judgment in Bamford v Turnley (1862) 3 B & S 62 at 83: “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.” The majority were at pains to emphasise that “reasonable user” in this sense does not involve an overall assessment of the reasonableness of the defendant’s use of the land but rather protects their ability to make ordinary use of it (paras 29–33).
As Reid has pointed out (Law of Delict in Scotland (2022) para 22.07), the basic structure of the test for nuisance in Scotland is different, starting by asking whether the interference is plus quam tolerabile and constraining liability through the application of a fault requirement where damages are sought. This aspect of the decision is, therefore, perhaps of less direct relevance to Scotland, though it does stand as a further example, alongside Robinson v Chief Constable of West Yorkshire Police  UKSC 4 and W M Morrison Supermarkets plc v Various Claimants  UKSC 12, of the Supreme Court’s tendency to favour emphasis on detailed reference to the body of tort case law over general and open-textured tests.
Overlooking and nuisance’s character as a property delict/tort
The point of difference between the Supreme Court and the Court of Appeal is of more direct relevance to Scotland. It turns not on the severity of the interference but on the nature of the protection that the law of nuisance gives to owners. The judge of the Court of Appeal had concluded that “the overwhelming weight of judicial authority […] is that mere overlooking is not capable of giving rise to an action of private nuisance” ( EWCA Civ 104 at para 74). They had further argued that this was unsurprising because inter alia “what is really the issue in cases of overlooking in general, and the present case in particular, is invasion of privacy rather than (as is the case with the tort of nuisance) damage to interests in property.” ( EWCA Civ 104 at para 84).
The Justices of the Supreme Court were at one in rejecting both the Court of Appeal’s reading of the authorities and the opposition that the Court of Appeal sought to set up between privacy interests and property interests:
The concepts of invasion of privacy and damage to interests in property are not mutually exclusive. An important aspect of the amenity value of real property is the freedom to conduct your life in your own home without being constantly watched and photographed by strangers. Damage to that interest might in some cases also give rise to other causes of action, for example harassment, though they do not here. The (sole) issue in this case is whether the viewing and photography to which the claimants are subjected on a daily basis violates the claimants’ rights to the use and enjoyment of their flats. No new privacy laws are needed to deal with this complaint. The general principles of the common law of nuisance are perfectly adequate to do so. ( UKSC 4 at para 112)
This argument draws an important distinction between privacy as the object of a right and privacy as a good that we pursue. The law offers more or less direct protection to privacy through delicts such as breach of confidence and misuse of private information and date protection rules. In time, these various particular may be taken to describe the outline of a right to privacy in private law. It is, however, worthy of note that an attempt by the Lord Ordinary in BC v Chief Constable of the Police Service of Scotland to frame them in this way was slapped down by the Inner House ( CSIH 61 at paras 75–86).
Whether a general privacy right is considered to emerge from these rules or not, they stand in contrast to privacy as part of a property owner’s amenity. Part of what we value about property rights (at least in the domestic context) is the ability that they give us to construct a private sphere. Here privacy is not an interest which the law protects but a good that we pursue through a property right. It is one of the goods which property rights secure for us.
There can be little doubt that being denied this good will affect the property owner’s enjoyment and therefore, the conclusion that interference with privacy can amount to a nuisance might be regarded as relatively unproblematic.
The boundaries of amenity
However, the line of reasoning just canvassed hints at difficulties to come: if interference with a good that we pursue through a property right brings an activity within the sphere of nuisance, it may become difficult to determine the proper boundaries of the law’s protection. It is generally accepted that nuisance protects the enjoyment of property rather than the property’s value as such but it is difficult to deny that economic value is a good which property owners often seek to secure through property rights. The problem is perhaps rendered more acute by the Court of Session’s willingness to countenance a claim for economic loss arising from nuisance in Globe (Aberdeen) Ltd v North of Scotland Water Authority 2000 SC 392.
The tension echoes the challenges faced by Scottish courts in applying the concept of praediality in the law of real burdens. As is well known, it is a condition of the validity of real burden that serves to benefit the benefited property as such rather than merely benefiting the owner (Title Conditions (Scotland) Act 2003, ss 3(3) and (4)). The concerns which underly this requirement are similar those which motivate the restrictions on the scope of nuisance: real burdens are supposed to be about protecting owners’ use of land, not about conferring benefits on the owners themselves.
However, Scottish courts have tended not to deploy the praediality requirement very strictly. The leading modern case is Hill of Rubislaw (Q Seven) Ltd v Rubislaw Quarry Aberdeen Ltd  CSIH 105. In Hill, the Inner House upheld a burden restricting “the maximum net lettable floor area of Office Space” which could be provided to tenants on the burdened property in order to preserve the rental value of the benefited property. The Inner House sought to square this with the praediality requirement in the following terms:
The praedial rule further requires that there should be a benefit to the property rather than the particular proprietor. Nevertheless, property is not recognized by the law of and for itself; it is recognized because of the benefits that it confers on proprietors, tenants and other occupiers. Thus the expression that a real burden must confer a benefit on a property is essentially shorthand for saying that it must confer a benefit on the owners, tenants or occupiers of the property from time to time, whoever they may be. ( CSIH 105 at para 14)
Of course, it might be argued that there is a significant distinction between a voluntarily created restriction such as a real burden and one which is imposed by the law, but the reasoning in the passage above does not concern the voluntary nature of the burden but rather the nature of the goods which property secures for us. As such, it seems very close to the question of the scope of amenity. This suggests that the law of nuisance and of real burdens may fruitfully be considered together but it also suggests that, at least in Scotland, the Supreme Court’s attitude to amenity might cast nuisance more broadly than has hitherto been anticipated.