Q&A: What constitutes a nuisance?
James Souter and James Hanham reflect on the practical questions arising from the Supreme Court’s decision in the Tate Modern case.
Following the Supreme Court’s decision in Fearn and others v Board of Trustees of Tate Gallery  UKSC 4;  PLSCS 22, there has been a flood of enquiries relating to the installation of electronic monitoring equipment by the owners of properties giving remote views onto neighbouring land. Here are three such examples:
(i) In the middle of Bedford, a couple share a front-path and doorstep with their neighbours who have installed a Ring Video Doorbell and camera which monitor the porch and doorstep. The couple’s son says he has come across a YouTube channel that appears to be broadcasting the feed on a 24/7 basis.
(ii) In suburban Oxford, the owners of a residential property gain access to the rear of their property (which they do every day) via a passage which forms part of the neighbouring land’s title over which they have a right of way. The neighbours have set up CCTV on the wall overlooking the passageway, capable of picking up images day and night. The need for the camera has not been explained.
(iii) In rural Buckinghamshire, an elderly couple live in a hamlet adjoining a farm. The farmer has set up a pylon and camera/motion-activated light that overlooks the gable end of the couple’s property, which houses a large sash window to the master bedroom. The farmer claims that thieves have been gaining access to the farm sheds in the yard via a hole in the fence adjacent to the gable-end of our clients’ house.
Respectively, do any of these property owners have a remedy for nuisance?
Clearly, each of the three cases involve elements of visual intrusion. Fearn has now authoritatively stated that visual intrusion (a narrower concept than “invasion of privacy” – which might involve harassment, General Data Protection Regulation and Data Protection Act 2018 issues) may be actionable in nuisance.
(i) In an urban setting, the use of monitoring technology by local government and private individuals is now common. Having a Ring Video Doorbell is obviously ordinary use of a residential property. The YouTube channel feed, on the face of it, is not an ordinary use and it is likely a visual intrusion nuisance could be made out.
(ii) In Fearn, the Supreme Court examined with approval several Commonwealth authorities dealing with surveillance of adjoining properties. These were established to be cases of spying. There is no evidence here of “spying” or that the CCTV causes a substantial interference with the exercise of the property right. This appears to be a reasonable security measure and unlikely to be a visual intrusion nuisance.
(iii) The set-up here does not, particularly given the locality, appear to be an ordinary and common use of the farmer’s land, so is likely to amount to a nuisance. That the elderly couple could draw their curtain or mend the fence is not a defence – on a give and take basis, the claimed security element could be achieved much less intrusively.
A private nuisance may be and usually is caused by a person doing, on their own land, something which they are lawfully entitled to do. Their conduct only becomes a nuisance when the consequence of their act (or omission) is not confined to their own land, but extends to that of their neighbour, thereby: (i) causing an encroachment; (ii) causing physical damage; or (iii) unduly interfering with this neighbour in the comfortable and convenient enjoyment of their land. A case based on visual intrusion falls into this third class of case.
To be actionable, an interference of this kind must constitute a real or substantial interference with the comfort or convenience of ordinary living. The use of the property according to the standards of the average person requires consideration of the character of the neighbourhood.
Even if it is substantial, not every interference is actionable. The effects of normal living (audible by reason of flats having been constructed without sound insulation) were held not to be actionable, even where neighbours were substantially disturbed due to the lack of sound-proofing: Southwark London Borough Council v Tanner  AC 1.
Liability will not arise where the interference is caused by acts that are necessary for the common and ordinary use of the defendant’s land; such user was to be equated with “reasonable use.” That is why the principle of reciprocity or “give and take” is offended because the consequences of the defendant’s use of their land goes beyond that which the defendant themselves would tolerate.
Acts done with the intention of causing annoyance to a neighbour will most likely be a nuisance, although the same amount of annoyance would not be a nuisance if done in the ordinary and reasonable use of property.
It is not a good defence to a claim in nuisance that the claimant could take remedial steps to avoid the consequences of the defendant’s acts because, far from “give and take”, it places the remedial burden on the victim.
Mere “overlooking” between properties is unlikely ever to be unlawful. However, a particular user, the inevitable consequence of which will be a visible intrusion, may be an activity which constitutes a nuisance.
James Souter is a partner at Charles Russell Speechlys LLP and James Hanham is a barrister at Landmark Chambers.
An original version of this article was first published on Estates Gazette.