Our English Real Estate Litigation team recently wrote about the UKSC judgement Fearn and others v Board of Trustees of the Tate Gallery  UKSC 4.
Fearn v Tate was an action by the residents of a block of luxury flats in London, situated 34 metres from the viewing platform of the Tate Modern and with glass walls. Each year 500,000 to 600,000 people would use the viewing platform and many of these visitors would take photos of the residents. The Supreme Court decided that the viewing platform was a legal nuisance and had to stop.
An action for nuisance can also be raised in Scotland by property owners or occupiers when they believe that the use and enjoyment of their land is being affected.
Below, we set out a reminder of the position in Scotland in comparison to the five key takeaways from the UKSC judgement in Fearn v Tate.
1. It is not a question of what is reasonable in the circumstances, but rather whether the potential nuisance is necessary for the common and ordinary use and occupation of the land.
In Scotland, the test is whether, objectively, a potential pursuer has been exposed to something that is more than what is tolerable, giving due weight to the surrounding circumstances of the offensive conduct and effects. This has been applied by the Scottish courts by asking whether a reasonable person would be of the same view as a potential pursuer.
The Supreme Court in Fearn made it clear that the English Court of Appeal was wrong in its approach when it decided the appeal based on whether the Tate was making an unreasonable use of its land by operating the viewing gallery. The correct approach was to consider if the Tate was using its land in a common and ordinary way. It was held that it was not, and that it was using its land in an exceptional manner.
In Scotland, using land in a common and ordinary way wouldn't prevent there from being a legal nuisance if a reasonable person would consider it to be intolerable in all the circumstances. Those circumstances would include the locality of the nuisance and the relationship of the conduct to the locality. The noise you'd expect from a manufacturing facility on a large industrial estate is unlikely to be a nuisance, but that same noise would be more likely to be a nuisance if it was produced in the middle of a housing estate in the middle of a residential suburb. In many ways, therefore, the English and Scottish tests are practically the same.
2. The sensitivity of a potential claimant's property is not a defence
The judge in Fearn used the example of a building constructed with unusually thin walls. He said that so long as the offending party was using its land for ordinary purposes, the neighbouring proprietor would have to put up with the noise. It was not a defence that the neighbouring property in Fearn was sensitive to nuisance because of its make-up (in this case large glass walls) so long as the owners were using their property for its common and ordinary use. The position is largely the same in Scotland where, in a previous case, the sensitivity of the pursuer's land was that it had salmon ova in a salmon hatchery which was destroyed by mud stirred up in a stream in the course of reasonable, necessary and ordinary forestry operations upstream. The defender did not have to take this into consideration so long as it was conducting an ordinary business appropriate to the locality.
That Scottish case did however state that if an offending party deliberately disregarded the sensitivity of the land, then they could be held liable in nuisance. So, there is a slight difference and in Scotland you must not turn a blind eye to the sensitivity of the land.
3. A potential pursuer does not have to take protective measures
Fearn held that they do not. In England it is not the victim's fault e.g. you do not have to wear ear plugs because your neighbour is shouting and screaming every night from 9 pm to 9 am. It is no answer for someone who interferes with the use of another's land by making an exceptional use of their own land to say that the claimants could protect themselves in their own homes by taking remedial measures. In Fearn the owners of the flats were not expected to have to put up blinds or net curtains because the use of the neighbouring property was not the ordinary use of the land. The same principle applies in Scotland where there is the additional element that the cause of the nuisance must be able to be attributed to a defender's acts.
4. The law of privacy is not relevant
In Fearn the Supreme Court said that the law of privacy was not required to decide the case. The question was whether the viewing and photography to which the claimants were subjected violated their right to the use and enjoyment of their flats. The test for nuisance in Scotland does not prevent the law of privacy being a consideration. It could come into play when having regard to the overall circumstances to ascertain what is tolerable from an objective standpoint.
5. Public interest is not to be considered other than in deciding on the remedy
Fearn held that where significant considerations of public interest are raised, it is for the court to take this factor into account, not in determining liability, but, where liability is established, in deciding whether to grant an injunction or to award damages. The Scottish courts have previously followed similar reasoning.
Whilst the test is different in Scotland this case is persuasive. It remains to be seen to what extent the Scottish courts will follow the reasoning in Fearn v Tate. It is possible that visual intrusions such as this could be deemed unreasonable and a nuisance in the future. Developers should therefore be aware of the risks for liability when a similar intrusion could be created, especially when their development is close to and overlooks private residences.