13th February 2023
Over at Prospect I have an article about the Tate Modern privacy case.
Click here (even if you do not read it).
As the article shows, I am no fan of either the new Tate Modern building or the blocks of flats facing it. I have always thought it is better to live inside an ugly building looking at a nice building, rather than living in a nice building looking at an ugly building, and the sad predicament in the Tate Modern case is that you have two ugly buildings facing each other.
And like many people, I instinctively sided with the art gallery, as at least the public gallery was a public good, and that offset the private inconveniences of the wealthy leaseholders.
But.
As I read the case reports carefully, and the majority opinion of the Supreme Court in particular, I found it hard to legally fault the final decision:
If there is to be a law of private nuisance then this seems to be the correct application of that law.
My lingering reaction is to wish that only privacy rights were as easy to enforce in non-property cases.
Anyway, you can read the article here – and please comment below.
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Given that the majority dismissed the ‘come to the nuisance’ point (par. 42-46), could you end up with a situation where both neighbours have an action for nuisance against each other?
(That scenario doesn’t work very well for Tate Modern, if for no other reason than that it doesn’t have very many windows, but it seems like an interesting question anyway.)
In practice, however, I think these “rights” are no more than privileges of the extremely wealthy.
Dear David
It’s interesting this decision came out only a few weeks after your discussion of Taff Vale, another case involving a class battle, with the loss of financial value to a wealthy few favoured against broader interests.
In both, the broader interests were explicitly not considered by the majority, overturning a lower court decision which not just considered, but favoured those same ‘weak’ interests.
I think your article skirts around a more fundamental debate which is slowly emerging: how much should our new economy, which is increasingly turning its back on the free-market, value ‘public’ goods in contrast with private rights, and to what extent this should even be part of a consideration.
Now on the one hand, Fearn might be an extreme example where the public ‘good’ of access to uninterrupted views across London is outweighed by the private ‘harm’, even when that balancing act is considered.
But it doesn’t take much of a push for intuition to swing heavily the other way.
Perhaps the national trust clearing a path to the top of a hill, which overlooks a millionaire’s country estate.
Or the creation of a high-speed train, which halves the speed to get to London from Newcastle, but also increases noise to houses backing onto the line.
Under the majority’s view, both of these should be considered private nuisance. Either the activity is stopped, or significant compensation is demanded which would otherwise had been reinvested to create more public goods. Either way, the public loses.
The trick that the majority missed is, that all of these are ‘give-and-take’ situations where we can easily imagine a trial arising, and a court wishing to either rule, or at least consider ruling, in favour of the public.
The majority’s reasoning will no doubt now be used as the centre-piece in parties’ attempts to bind a high-court judge, or even a three-member Supreme Court’s, hands. I wonder if the court will end up regretting its decision.
I can only agree with ‘it’s better to live in an ugly building looking out’
With our nearest beach being Aberafan we view North Devon, Gower and Mumbles, whilst they view Port Talbot
A win for Steel Town
From the US: Having read the majority Supreme Court opinion, skimmed the dissent, and read your piece, may I say (a) interesting discussion of nuisance (unfortunate that so much in the US is (in comparison) badly written); (b) to me, your concluding observation about the comparative strictures of legal fields (sorry, sort of) is of real importance, and perhaps your efforts will bring a bit of illumination for both the legal community and the laity. Thank you.
Why can’t the Tate Modern put up a blocking wall or partition just tall enough and just wide enough to just keep the public from viewing only the leaseholders property in the 360 rooftop panorama offered?
Why wouldn’t. say a 330 view, of the Thames and London from the Tate Modern roof be sufficient to appease the desires of all?
Poof…. no more nuisance from the Tate.
It could still be a 360 degree view above a certain height – a parapet wall of sufficient depth that someone of average height could peer over it and see the skyline/horizon behind/above the residential windows that are currently impacted?
Don’t many Public Rights of Way arguably impinge upon the privacy rights of landowners across whose land those Public Rights Of Way pass? And yet those PROWs have been hitherto considered to be immutable (much to the chagrin of many British landowners).
Does this judgement therefore potentially undermine the nation’s network of Public Rights of Way?
Or conversely, could the Tate Modern use the precedent provided by PROWs as a way to get around the Supreme Court judgment – by declaring a new Public Right of Way that circumnavigates their 360 degree viewing platform?