Week 3 Lecture – Obligations and the Common Law Fern v Tate Gallery
Facts
Claimants were leaseholders of flats – Neo Bankside 50 Holland Street London SE9FU
Defendant was the Tate Modern Gallery. They had built the Blavatnik building gallery that overlooked
the Neo Bankside flats.
The Gallery was visited by 1000’s daily some of who use binoculars. The claimants flats had winter
garden rooms that are enclosed by glass.
Issue Could the claimant find legal ground to compel the defendant to prevent the overlooking.
Legal Background
There are 2 arguments –
1) Breach of article 8 of the European convention of human rights, actionable under section 6
of the Human Rights Act 1998
2) Actionable under common law tort of private nuisance.
1 Human rights claim - Article 8 of the European convention of human rights states that everyone
has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with exercise of this right except such as is in
accordance with the law necessary in a democratic society in the interests of national security.
This claim failed in the high court as the Tate gallery was not considered a public body under
section 6 of the Human rights act 1998. It was not pursued by the Claimant.
2 Common claim of nuisance
Background
Common law created by the precedents set by previous decisions in the courts. It has been built
up by 1000’s of decisions over history. It is a body of law distinct from legislation.
Officially judges declare what the common law is this means that anyone who has an issue with
the same material facts before the date of the case that established the common law may bring
this under the established common law. The statute legislation only takes effect from the stated
commencement date. The meaning of legislation ifs found in a form of words (enacting words)
that express parliaments intent. Common law consists of past decisions and reasons. It is not
drawn from a single verbal formulation such as the enacting words on statutes created by
parliament.
A Tort is a claim by one party that the other has infringed their rights.
,The Tort of Private Nuisance
Traceable to pre 1300
Applies where there is an interference with the use or enjoyment of an interest of land. The
interference has to be unreasonable some interference can be seen as acceptable but after it
crosses a certain threshold it become unacceptable. Typically applied to noise, smell vibrations
etc emanating or crossing from one parcel of land to another. Can be encroachment e.g. tree
roots or physical damage to a property e.g. vibrations or smuts or interference with amenity.
Trespass to land is a different tort and trespassing would be handled by that. Remedies can be
damages or an injunctions.
Structure of the Law Report – (All paragraph and section numbers refer the law report in the
same file as these notes)
Section Numbers - Topics
3-9 – The factual Background
10–11 – The proceedings
12–13 – The Trial
14-26 – The Judgment
27-29 – The Appeal
One judgment provided by Sir Terence Etherton, this is a judgment of the court so is called the
court of appeals judgment.
Decision of Mann J in the high court
- It was possible in principle of the overlooking to be actionable in private nuisance to protect
the homes privacy.
- It was unusual that the whole purpose of the viewing gallery was to enable the public to
view what was around them.
- However there was no actionable nuisance because the interference was not unreasonable.
o The area of London was a mix of residential and other purposes including tourism.
o The use of the glass walls made the flats an abnormally sensitive use of the land.
o Mitigation measures such as net curtains and blinds are available and possible.
,Rights to Light – Example
Turner v Spooner 1861
The claimant Taylor improved his windows that overlooked the defendants (Spooner) yard at the
back of Spooners bank. The defendant objected and erected a wooden framework to prevent the
claimant overlooking in to his sitting room. The claimant claimed “*ancient lights” – an acquired right
to receive light to certain windows (known as easement**). The claimant won, the claimant could
create additional windows but was only entitled to light to the original windows capacity. The
outcome depended on if the claimant had acquired the ***right to receive light, without this the
defendant would have been entitled to block the claimants view with his framework.
*Ancient lights, in English property law, the right of a building or house owner to the light received
from and through his windows. Windows used for light by an owner for 20 years or more could not
be obstructed by the erection of an edifice or by any other act by an adjacent landowner.
**Easements in English law are certain rights in English land law that a person has over another's
land.
*** A “right to light” is an easement that gives a landowner the right to receive light through defined
apertures in buildings on his or her land. The owner of land that is burdened by the right cannot
substantially interfere with it – for example by erecting a building in a way that blocks the light –
without the consent of the benefiting owner.
Quote from the Judge, quoted by the court of appeal para 56
“With regard to the question of privacy, no doubt the owner of a house would prefer that a
neighbour should not have the right of looking into his windows or yard, but neither this court nor a
court of law will interfere on the mere ground of invasion of privacy; and a party has a right even to
open new windows, although he is thereby enabled to overlook his neighbours premises, and so
interfering, perhaps with his comfort.”
The Court of Appeal decision
Appeal was dismissed, the Court of appeal agreed with the High Court and Mann J that claim in
private nuisance failed. It disagreed with the reasons however, the court of appeal concluded that
overlooking could never be a actionable claim in a private nuisance tort.
, Pointers
The court of appeal interpreted the case law differently.
The Hight Court – Mann J
- Had distinguished (found) some older cases on the basis that they did feature the scale of
the invasion of privacy in the Fern v Tate case.
- Did not regard himself bound by the house of lords decision in the Taplings v Jones (1856)
which also refers to the rights about lights.
- They also referred to some Australian case law.
The Court of Appeal
Court of Appeal para 74 : “We, therefore, conclude that the overwhelming weight of judicial
authority, particularly in this jurisdiction, is that mere overlooking is not capable of giving rise to a
cause of action in private nuisance. There is certainly no decided case to the contrary.”
Reason given in cases for no general right to light – it would prevent much urban
development- also applies to overlooking (paras 75-78).
Nuisance law does not apply to every “annoyance” (para 79).
and as a matter of policy.
As a matter of Policy –
It would be more difficult than traditional nuisance interferences to determine what was
reasonable (par 81).
Planning law (through development control) is better able to regulate overlooking (paras 82-
83 ).
This is really an issue of privacy, not about protection of rights in land.
there is no tort of privacy, this “is an area which requires a detailed approach which can be
achieved only by legislation rather than the broad brush of common law principle”.
Fern and Common Law
The Court of Appeal was not bound by precedent as there weren’t any previous decisions to
decide this case the way it did (see the discussion of the House of Lords decision in Tapling).
It treated the fact that there was clear weight of judicial authority against overlooking being
actionable as persuasive, but not as the end of the matter.
Policy considerations were also taken into account.
Lecture Notes LW315 Intro to Obligations Modification of Contracts Promissory Estoppel
Modification not creation of Contract
Facts
Claimants were leaseholders of flats – Neo Bankside 50 Holland Street London SE9FU
Defendant was the Tate Modern Gallery. They had built the Blavatnik building gallery that overlooked
the Neo Bankside flats.
The Gallery was visited by 1000’s daily some of who use binoculars. The claimants flats had winter
garden rooms that are enclosed by glass.
Issue Could the claimant find legal ground to compel the defendant to prevent the overlooking.
Legal Background
There are 2 arguments –
1) Breach of article 8 of the European convention of human rights, actionable under section 6
of the Human Rights Act 1998
2) Actionable under common law tort of private nuisance.
1 Human rights claim - Article 8 of the European convention of human rights states that everyone
has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with exercise of this right except such as is in
accordance with the law necessary in a democratic society in the interests of national security.
This claim failed in the high court as the Tate gallery was not considered a public body under
section 6 of the Human rights act 1998. It was not pursued by the Claimant.
2 Common claim of nuisance
Background
Common law created by the precedents set by previous decisions in the courts. It has been built
up by 1000’s of decisions over history. It is a body of law distinct from legislation.
Officially judges declare what the common law is this means that anyone who has an issue with
the same material facts before the date of the case that established the common law may bring
this under the established common law. The statute legislation only takes effect from the stated
commencement date. The meaning of legislation ifs found in a form of words (enacting words)
that express parliaments intent. Common law consists of past decisions and reasons. It is not
drawn from a single verbal formulation such as the enacting words on statutes created by
parliament.
A Tort is a claim by one party that the other has infringed their rights.
,The Tort of Private Nuisance
Traceable to pre 1300
Applies where there is an interference with the use or enjoyment of an interest of land. The
interference has to be unreasonable some interference can be seen as acceptable but after it
crosses a certain threshold it become unacceptable. Typically applied to noise, smell vibrations
etc emanating or crossing from one parcel of land to another. Can be encroachment e.g. tree
roots or physical damage to a property e.g. vibrations or smuts or interference with amenity.
Trespass to land is a different tort and trespassing would be handled by that. Remedies can be
damages or an injunctions.
Structure of the Law Report – (All paragraph and section numbers refer the law report in the
same file as these notes)
Section Numbers - Topics
3-9 – The factual Background
10–11 – The proceedings
12–13 – The Trial
14-26 – The Judgment
27-29 – The Appeal
One judgment provided by Sir Terence Etherton, this is a judgment of the court so is called the
court of appeals judgment.
Decision of Mann J in the high court
- It was possible in principle of the overlooking to be actionable in private nuisance to protect
the homes privacy.
- It was unusual that the whole purpose of the viewing gallery was to enable the public to
view what was around them.
- However there was no actionable nuisance because the interference was not unreasonable.
o The area of London was a mix of residential and other purposes including tourism.
o The use of the glass walls made the flats an abnormally sensitive use of the land.
o Mitigation measures such as net curtains and blinds are available and possible.
,Rights to Light – Example
Turner v Spooner 1861
The claimant Taylor improved his windows that overlooked the defendants (Spooner) yard at the
back of Spooners bank. The defendant objected and erected a wooden framework to prevent the
claimant overlooking in to his sitting room. The claimant claimed “*ancient lights” – an acquired right
to receive light to certain windows (known as easement**). The claimant won, the claimant could
create additional windows but was only entitled to light to the original windows capacity. The
outcome depended on if the claimant had acquired the ***right to receive light, without this the
defendant would have been entitled to block the claimants view with his framework.
*Ancient lights, in English property law, the right of a building or house owner to the light received
from and through his windows. Windows used for light by an owner for 20 years or more could not
be obstructed by the erection of an edifice or by any other act by an adjacent landowner.
**Easements in English law are certain rights in English land law that a person has over another's
land.
*** A “right to light” is an easement that gives a landowner the right to receive light through defined
apertures in buildings on his or her land. The owner of land that is burdened by the right cannot
substantially interfere with it – for example by erecting a building in a way that blocks the light –
without the consent of the benefiting owner.
Quote from the Judge, quoted by the court of appeal para 56
“With regard to the question of privacy, no doubt the owner of a house would prefer that a
neighbour should not have the right of looking into his windows or yard, but neither this court nor a
court of law will interfere on the mere ground of invasion of privacy; and a party has a right even to
open new windows, although he is thereby enabled to overlook his neighbours premises, and so
interfering, perhaps with his comfort.”
The Court of Appeal decision
Appeal was dismissed, the Court of appeal agreed with the High Court and Mann J that claim in
private nuisance failed. It disagreed with the reasons however, the court of appeal concluded that
overlooking could never be a actionable claim in a private nuisance tort.
, Pointers
The court of appeal interpreted the case law differently.
The Hight Court – Mann J
- Had distinguished (found) some older cases on the basis that they did feature the scale of
the invasion of privacy in the Fern v Tate case.
- Did not regard himself bound by the house of lords decision in the Taplings v Jones (1856)
which also refers to the rights about lights.
- They also referred to some Australian case law.
The Court of Appeal
Court of Appeal para 74 : “We, therefore, conclude that the overwhelming weight of judicial
authority, particularly in this jurisdiction, is that mere overlooking is not capable of giving rise to a
cause of action in private nuisance. There is certainly no decided case to the contrary.”
Reason given in cases for no general right to light – it would prevent much urban
development- also applies to overlooking (paras 75-78).
Nuisance law does not apply to every “annoyance” (para 79).
and as a matter of policy.
As a matter of Policy –
It would be more difficult than traditional nuisance interferences to determine what was
reasonable (par 81).
Planning law (through development control) is better able to regulate overlooking (paras 82-
83 ).
This is really an issue of privacy, not about protection of rights in land.
there is no tort of privacy, this “is an area which requires a detailed approach which can be
achieved only by legislation rather than the broad brush of common law principle”.
Fern and Common Law
The Court of Appeal was not bound by precedent as there weren’t any previous decisions to
decide this case the way it did (see the discussion of the House of Lords decision in Tapling).
It treated the fact that there was clear weight of judicial authority against overlooking being
actionable as persuasive, but not as the end of the matter.
Policy considerations were also taken into account.
Lecture Notes LW315 Intro to Obligations Modification of Contracts Promissory Estoppel
Modification not creation of Contract
