“Outside, the extension would be clad in cast glass. A public roof terrace and a tenth floor restaurant would provide panoramic views both north and south.”
“(b) Typical sections … window/curtain-wall and glazing details including framing, louvre-system and opening vents”
“In order that the local Planning Authority may be satisfied as to the details of external finish in the interest of the appearance of the building …”
“In conclusion, overall our client continues to strongly support the proposed development and therefore continues to support the recommendation that proposals [sic] should be approved.”
“6(1) It shall be unlawful for a public authority to act in a way which is incompatible with a Convention right.”
“(3) In this section ‘public authority’ includes: - ” … (b) any person certain of whose functions are functions of a public nature …” (5) In relation to a particular act, a person is not a public authority by virtue only of subsection 3(b) if the nature of the act is private.” … (b) any person certain of whose functions are functions of a public nature …”
“(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or…for the prevention or disorder or crime…or for the protection of the rights and freedoms of others.”
“1(1) There shall be bodies corporate known as— … (b) the Board of Trustees of the Tate Gallery (in this Act referred to as “the Tate Gallery Board”);”
“2(2) So far as practicable and subject to the provisions of this Act, the Tate Gallery Board shall maintain a collection of British works of art and of documents relating to those works, and a collection of Twentieth Century and contemporary works of art and of documents relating to those works, and shall— (a) care for, preserve and add to the works of art and the documents in their collections; (b) secure that the works of art are exhibited to the public; (c) secure that the works of art and the documents are available to persons seeking to inspect them in connection with study or research; and (d) generally promote the public's enjoyment and understanding of British art, and of Twentieth Century and contemporary art, both by means of the Board's collections and by such other means as they consider appropriate; …”
“(5) Subject to the provisions of this Act, a new Board may, for the purposes of whichever of subsections (1) to (4) above confers functions upon them— (a) provide education, instruction and advice and carry out research; (b) enter into contracts and other agreements (including agreements for the new Board's occupation or management of its principal building or of other premises); and (c) acquire and dispose of land and other property. (6) Subject to the provisions of this Act, a new Board may do such things (including requiring payment for admission or for other services or for goods provided by them) as they think necessary or expedient— (a) for preserving, and increasing the utility of, their collection; (b) for securing the due administration of anything vested in or acquired by them, and any premises occupied or managed by them, under or by virtue of this Act; and (c) otherwise for the purposes of their functions.”
“2(7) If a Minister of the Crown directs a new Board to exercise functions— (a) which are exercisable by him (whether by virtue of an enactment or otherwise), (b) which in his opinion can appropriately be exercised by that new Board, having regard to their functions and resources, and (c) which are specified in the direction, the new Board shall exercise them on his behalf in such manner as he may from time to time direct; but nothing in this subsection authorises the new Board to exercise a function of making regulations or other instruments of a legislative character.”
“2(1) Subject to sub-paragraph (3) below, the Board shall not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown. (2) The trustees and their staff shall not be regarded as civil servants and the Board's property shall not be regarded as property of, or held on behalf of, the Crown. (3) In relation to any matter as respects which the Board act by virtue of a direction under section 2(7) of this Act, the Board shall enjoy the same privileges, immunities and exemptions as those enjoyed in relation to that matter by the Minister giving the direction.”
“7. Conformably with this purpose, the phrase “a public authority” in section 6(1) is essentially a reference to a body whose nature is governmental in a broad sense of that expression ... The most obvious examples are government departments, local authorities, the police and the armed forces. Behind the instinctive classification of these organisations as bodies whose nature is governmental lie factors such as the possession of special powers, democratic accountability, public funding in whole or in part, an obligation to act only in the public interest, and a statutory constitution: see the valuable article by Professor Dawn Oliver, “The Frontiers of the State: Public Authorities and Public Functions under the Human Rights Act”: [2000] PL 476.”
“10. Again, the statute does not amplify what the expression “public” and its counterpart “private” mean in this context. But, here also, given the statutory context already mentioned and the repetition of the description “public”, essentially the contrast being drawn is between functions of a governmental nature and functions, or acts, which are not of that nature. I stress, however, that this is no more than a useful guide. The phrase used in the Act is public function, not governmental function.”
“12. What, then, is the touchstone to be used in deciding whether a function is public for this purpose? Clearly there is no single test of universal application. There cannot be, given the diverse nature of governmental functions and the variety of means by which these functions are discharged today. Factors to be taken into account include the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service.”
“49. The phrase “public functions” in this context is thus clearly linked to the functions and powers, whether centralised or distributed, of government.”
“64. …The nature of the act is to be found in the nature of the obligation which the PCC is seeking to enforce. It is seeking to enforce a civil debt. The function which it is performing has nothing to do with the responsibilities which are owed to the public by the State. …”
“171 … There is nothing in the nature of the obligation itself, or in the means or purpose of its enforcement, that would lead to the conclusion that the PCC of Aston Cantlow is exercising a governmental function, however broadly defined, when it enforces the lay rectors' obligation to pay for chancel repairs. Therefore, even when it is enforcing that obligation, the PCC is not to be regarded as a public authority for the purposes of section 6 of the 1998 Act.”
“103. Typical state or governmental functions include powers conferred and duties imposed or undertaken in the general public interest. I shall not attempt to identify the full scope of the concept of “functions of a public nature”, any more than Lord Nicholls did in Aston Cantlow. But some further consideration is appropriate of his suggested hallmarks of a public authority. As stated, these were, in the case of a core public authority and in addition to special powers, democratic accountability, public funding in whole or in part, an obligation to act only in the public interest and a statutory constitution. All these factors can readily be understood to throw light on the nature of a person’s functions. When considering section 6(3)(b), Lord Nicholls suggested as factors, again in addition to statutory powers, the extent that a body is publicly funded or is 116. is providing a public service:[2004] 1 AC 546 , para 12. These are more generally expressed factors, to which I address some further comments.”
“116. In providing care and accommodation, Southern Cross acts as a private, profit-earning company. It is subject to close statutory regulation in the public interest. But so are many private occupations and businesses, with operations which may impact on members of the public in matters as diverse for example as life, health, privacy or financial well-being. Regulation by the state is no real pointer towards the person regulated being a state or governmental body or a person with a function of a public nature, if anything perhaps even the contrary.”
“61. The contrast is drawn in the Act between “public” functions and “private” acts. This cannot refer to whether or not the acts are performed in public or in private. There are many acts performed in public (such as singing in the street) which have nothing to do with public functions. And there are many acts performed in private which are nevertheless in the exercise of public functions (such as the care of prisoners or compulsory psychiatric patients). The contrast is between what is “public” in the sense of being done for or by or on behalf of the people as a whole and what is “private” in the sense of being done for one’s own purposes.”
“3. A nuisance can be defined, albeit in general terms, as an action (or sometimes a failure to act) on the part of a defendant, which is not otherwise authorised, and which causes an interference with the claimant’s reasonable enjoyment of his land, or to use a slightly different formulation, which unduly interferes with the claimant’s enjoyment of his land. As Lord Wright said inSedleigh-Denfield v O’Callaghan[1940] AC 880 , 903, “a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society”. 4. In Sturges v Bridgman(1879) 11 ChD 852, 865, Thesiger LJ, giving the judgment of the Court of Appeal, famously observed that whether something is a nuisance “is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances”, and “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”
“The appeal turns on the respect Parliament must be understood, even in its desire to stamp out drunken driving, to pay to the fundamental right of privacy in one’s own home, which has for centuries been recognized by the common law.”
“The right or interest to be let alone in one’s home is a vital aspect of privacy. One frequently hears the phrase “the privacy of one’s home”
“It should be appreciated that the plaintiff does not question the general principle that it is a legitimate use of property to erect and extend homes for the purpose of obtaining or improving favourable prospects or “views”
“Why should it not have been actionable in as a nuisance?”
“Any person is entitled to look over the plaintiff’s fences and to see what goes on in the plaintiff’s land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence. Further, if the plaintiff desires to prevent its notice boards being seen by people from outside the enclosure, it can place them in such a position that they are not visible to such people. At sports grounds and other places of entertainment it is the lawful, natural and common practice to put up fences and other structures to prevent people who are not prepared to pay for admission from getting the benefit of the entertainment. In my opinion, the law cannot by an injunction in effect erect fences which the plaintiff is not prepared to provide. The defendant does no wrong to the plaintiff by looking at what takes place on the plaintiff’s land. Further, he does no wrong to the plaintiff by describing to other persons, to as wide an audience as he can obtain, what takes place on the plaintiff’s ground. The court has not been referred to any principle of law which prevents any man from describing anything which he sees anywhere if he does not make defamatory statements, infringe the law as to offensive language, &c., break a contract, or wrongfully reveal confidential information. The defendants did not infringe the law in any of these respects.”
“On the evidence before me at the moment there is a deliberate attempt to snoop on the privacy of a neighbour and to record that on video tape. It seems to me that this is an actionable nuisance.”
“Inasmuch as our law does not recognize any easement of prospect or privacy, and (as I have already held) the plaintiffs' lights are not interfered with, it is difficult to find any easement which can have been interfered with by the erection of the staircase in question.”
“A landowner may sell a piece of land for the purpose of building a house which when built may derive a great part of its value from advantages of prospect or privacy. It would, I think, be impossible to hold that because of this the vendor was precluded from laying out the land retained by him as a building estate, though in so doing he might destroy the views from the purchaser's house, interfere with his privacy, render the premises noisy, and to a great extent interfere with the comfortable enjoyment and diminish the value of the property sold by him.”
“It appears to me that to constitute a breach of such a covenant there must be some physical interference with the enjoyment of the demised premises, and that a mere interference with the comfort of persons using the demised premises by the creation of a personal annoyance such as might arise from noise, invasion of privacy, or otherwise is not enough.”
“Again, there is another form of words which is often found in the cases on this subject, namely the phrase “invasion of privacy by opening windows.”
“…for an action in private nuisance to lie in respect of interference with the plaintiff’s enjoyment of his land, it will generally arise from something emanating from the defendant’s land. Such an emanation may take many forms - noise, dirt, fumes, a noxious smell, vibrations, and suchlike. Occasionally activities on the defendant’s land are in themselves so offensive to neighbours as to constitute an actionable nuisance, as in Thompson-Schwab v Costaki[1956] 1 WLR 335 , where the sight of prostitutes and their clients entering and leaving neighbouring premises were held to fall into that category. Such cases must however be relatively rare.”
“I read the reference to “occasionally” [in Hunter] as meaning “exceptionally”.”
“ 21. Item 9 was addressed by the judge at paras 135–136: “135. Item 9 concerns Ms McKennitt’s Irish cottage. It is not her only house, but it is nevertheless a home. That is one of the matters expressly addressed inarticle 8(1) of the Convention as entitled to ‘respect’. Correspondingly, there would be an obligation of confidence. Even relatively trivial details would fall within this protection simply because of the traditional sanctity accorded to hearth and home. To describe a person’s home, the décor, the layout, the state of cleanliness, or how the occupiers behave inside it, is generally regarded as unacceptable. To convey such details, without permission, to the general public is almost as objectionable as spying into the home with a long distance lens and publishing the resulting photographs. “136. True it is that over five or six years Mr Fowkes was engaged, from time to time, in renovation works at the cottage. Ms Ash, too, did a lot of hard work to make it habitable after Ms McKennitt acquired it in 1992. Some of the work was remunerated and some was not. That seems to me to make no significant difference. Whether one is allowed into a person’s home professionally, to quote for or to carry out work, or one is welcomed socially, it would clearly be understood that the details are not to be published to the world at large.” 22. Criticism was made of the introduction to this passage, in that article 8 cases have tended to be concerned with the security or stability of residence, rather than with privacy within the home. But the judge clearly spoke only by analogy, pointing out that it should have been and was obvious that events in a person’s home cannot be lightly intruded upon; and in the event, as he said, at para 138, “it is intrusive and distressing for Ms McKennitt’s household minutiae to be exposed to curious eyes”
“In a case such as this, where the development is likely to have an impact upon many people over a large area, the planning system is, I think, a far more appropriate form of control, from the point of view of both the developer and the public, than enlarging the right to bring actions for nuisance at common law. In saying this, I am not suggesting that a grant of planning permission should be a defence to anything which is an actionable nuisance under the existing law. It would, I think, be wrong to allow the private rights of third parties to be taken away by a permission granted by the planning authority to the developer. The Court of Appeal rejected such an argument in this case and the point has not been pursued in your Lordships’ House. But when your Lordships are invited to develop thecommon law by creating a new right of action against an ownerwho erects a building upon his land, it is relevant to take intoaccount the existence of other methods by which the interestsof the locality can be protected.” (Mr Fetherstonhaugh’semphasis)”
“218. They suggest that a planning permission may be relevant in two distinct ways: (i) It may provide evidence of the relative importance, in so far as it is relevant, of the permitted activity as part of the pattern of uses in the area; (ii) Where a relevant planning permission (or a related section 106 agreement) includes a detailed, and carefully considered, framework of conditions governing the acceptable limits of a noise use, they may provide a useful starting point or benchmark for the court’s consideration of the same issues.”
“183. After more than 60 years of modern planning and environmental controls, it is not unreasonable to start from the presumption that the established pattern of uses generally represents society’s view of the appropriate balance of uses in a particular area, taking account both of the social needs of the area and of the maintenance of an acceptable environment for its occupants. The common law of nuisance is there to provide a residual control to ensure that new or intensified activities do not need lead to conditions which, within that pattern, go beyond what a normal person should be expected to put up with.”
“96. However, there will be occasions when the terms of a planning permission could be of some relevance in a nuisance case. Thus, the fact that the planning authority takes the view that noisy activity is acceptable after 8.30 am, or if it is limited to a certain decibel level, in a particular locality, may be of real value, at least as a starting point as Lord Carnwath JSC says in para 218 below, in a case where the claimant is contending that the activity gives rise to a nuisance if it starts before 9.30 am, or is at or below the permitted decibel level. While the decision whether the activity causes a nuisance to the claimant is not for the planning authority but for the court, the existence and terms of the permission are not irrelevant as a matter of law, but in many cases they will be of little, or even no, evidential value, and in other cases rather more.”
“But no case has been cited where the doing something not in itself noxious has been held a nuisance, unless it interferes with the ordinary enjoyment of life, or the ordinary use of property for the purposes of residence or business. It would, in my opinion, be wrong to say that the doing something not in itself noxious is a nuisance because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life.”
“123. The reasonable expectation of privacy that a person has in his or her home depends on the nature of that home and on the measures taken by the resident to screen his or her home from view. A person who chooses to live in a glass box in a crowded, urban sky has a different reasonable expectation that one who chooses a secluded spot.”
“ 140 … What can reasonably be expected by way of protection from view in an isolated cottage in rural Dorset will be very different from that which can reasonably be expected in a curtainless window by a bus stop, or an uncurtained glass box in a congested sky.”
“32. This very broad approach is thus firmly established as the essential content of liability in the modern law of nuisance, at least where the existence of a "nuisance" is established. It takes the place of some detailed and particular rules that are to be found in earlier authority. A number of consequences flow from that fact. … 35. Third, relevantly to our case, it is difficult to see any further life in some particular rules of the law of nuisance, such as for instance the concept of "abnormal sensitiveness" drawn from Robinson v Kilvert(1889) 41 Ch D 88 . That rule was developed at a time when liability in nuisance, for damaging a neighbour by use of one's own land, was thought to be strict: for that view of the nineteenth century law see Lord Goff in Cambridgeshire Water at p 299D, and in that century itself the judgment of Blackburn J in Fletcher v Rylands (1866) LR 1 Ex 265 in particular at p 285, quoted in this sense by Professor Newark 65 LQR at p 487, a passage cited with approval by Lord Goff in Cambridgeshire Water at p 298D. The unreasonable results that could flow from that approach were mitigated by a number of rules of thumb; for instance, as shown by the passages from Robinson v Kilvert cited by my Lord at § 14 above, that an activity that could only injure an exceptionally delicate trade could not be a nuisance at all; or that the occupier could not be responsible for a "nuisance" on his premises that was not created by him (e.g. Barker v Herbert[1911] 2 KB 633 , a case that specifically disclaimed analysis in terms of negligence). It is very difficult not to think that such particular rules are now subsumed under the general view of the law of nuisance expressed in Delaware Mansions: not dissimilarly to the way in which the generalisation of the law of negligence initiated by Donoghue v Stevenson has rendered obsolete the previous categories of dangerous chattels; duties of occupiers of land; duties attaching to specific trades; and the like. 36. This all affects our present case in the following ways. First, if it were any longer appropriate to address as a separate question whether Mr Morris's studio was a special or abnormal sensitive use of his premises, I would be minded to answer that question as did the Recorder, as set out by my Lord in §16 above. It seems to me that it is difficult to say that, in the modern era, the type of studio involved is so unusual as necessarily to disqualify Mr Morris from the protection of the law of nuisance. But the problem about that reply is that it is in wholly generalised terms, that do not address the relationship between this claimant and this defendant. And that demonstrates that the question is no longer apt. As my Lord says, what is required is an analysis of the demands of reasonableness in this particular case: which the court can now assess, as the court in Robinson v Kilvert could not, in terms of foreseeability.”
“It has been suggested that it is difficult to see any further life in the principal about abnormal sensitivity because of the current general approach. With respect, that does not seem correct: to say that C cannot restrict the freedom of action of his neighbour by putting his property to a very sensitive use is part and parcel of the idea of reasonableness. Of course, that is not to say that the law’s response to what were once regarded as abnormally sensitive activities may not change over time: for example, the use of sensitive electronic equipment is now part of everyday life and there are detailed regulatory controls designed to minimise interference.”
“20-11. Standard of comfort. A nuisance of this kind, to be actionable, must be such as to be a real interference with the comfort or convenience of living according to the standards of the average man. An interference which alone causes harm to something of abnormal sensitiveness does not of itself constitute a nuisance. A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or for pleasure. In practice the general application of the concept of foreseeability and reasonable user may have rendered the notion of abnormal sensitivity less significant in modern law [a footnote refers to the Network Rail case], although it is submitted that it remains useful as a guideline when applying those broad concepts in particular cases.” those broad concepts in particular cases.”
“ 19. This evidence reflects the fact that it may be more satisfactory that the potential problem of one neighbour causing electronic interference to another should be addressed by regulation than that it should be left to be resolved by the law of private nuisance. We express no concluded view on this. If the authorities to which we have referred in paragraphs 13 to 15 above remain good law, they would lead us to the conclusion that the amplified guitars which were affected by the magnetic field created by Railtrack's installations fell into the category of extraordinarily sensitive equipment which did not attract the protection of the law of nuisance. The evidence to which we are about to turn indicates that the interference suffered by Mr Morris as a result of the use of the TI 21 track circuits was a very rare occurrence indeed. As Buxton LJ's judgment demonstrates, however, the law of nuisance has moved on. If resort must be had to it in order to resolve the competing claims of users of electrical or electronic equipment, the balance may fall to be struck by considering what is reasonable. One thing seems clear, however. Foreseeability is a vital ingredient in the tort of negligence – see Cambridge Water Co. v Eastern Counties Leather PLC[1994] 2 AC 264 . It was, in this case, common ground that Railtrack could only be liable in nuisance if they should reasonably have foreseen that, by installing the TI 21 track circuits they would cause damage to someone in the position of Mr Morris.”