The recent Supreme Court decision in Fearn and Ors v Board of Trustees of the Tate Gallery [2023] confirms that a visual intrusion is capable of being a nuisance under common law.
What was the original Claim?
The popular Tate Modern art gallery in London opened an extension in 2016 called the Blavatnik Building. The building is ten stories high and, on its top floor, has a viewing platform which offers panoramic views of London attracting hundreds of thousands of people every year.
The Claimants in this case own flats neighbouring the Tate Modern which are of a similar elevation to the Blavatnik building, and whose walls are mainly made of glass. It is claimed that on the southside of the viewing platform, visitors to the Tate can see directly into the flats in question.
History of the case…
In 2017, The Claimants applied to the Court for an injunction to prevent the use of the viewing gallery on the grounds, the Tate Modern was in breach of section 6 of the Human Rights Act 1998 (“the HRA 1998”). Judge Mann, who heard the case in November 2018, subsequently dismissed the claim in February 2019 on the basis that the use of the top floor as a viewing platform had implemented reasonable steps and that the Claimants attracted this by choosing a property which had glass windows. As such, the Claimants could have measured their own privacy.
The Claimants appealed to the Court of Appeal, who found that the Judge hadn’t applied the law correctly on the general terms of nuisance. Again, the claim was dismissed, but this time on the basis that overlooking cannot give rise to a claim in nuisance. The Claimants then appealed to the Supreme Court in December 2021.
Seven years on…
On 1st February 2024, the Supreme Court handed down its decision. The Supreme Court allowed the appeal on a 3 to 2 majority and found that visual intrusion is capable of being a nuisance. However, there will be no claim if the Defendant is making a common and ordinary use of its own land. On the facts of this case, it was deemed a clear nuisance however, the nature of the use of the land is an important factor to consider moving forward.
The Defendants were found to be liable to the Claimants under the law of nuisance.
The full Judgment can be found at: https://www.supremecourt.uk/cases/uksc-2020-0056.html
So, what’s next?
The case will be resubmitted to the High Court, where the Judge will decide on an appropriate remedy, whether an injunction and/or damages will be applicable.
Looking ahead, it is worth noting that this decision may have a significant impact on privacy and nuisance cases moving forward and may give rise to an increase in potential cases between neighbours that complain they are being overlooked or peered at.
For those who are faced with similar issues, it is important to carefully consider this Judgment alongside the proportionality of taking neighbour disputes to Court and the other alternative dispute resolution options that are available. If you would like to discuss any of the issues raised in this article, please contact Sarah Laird at sll@swinburnemaddison.co.uk or by phone at 0191 384 2441.
This article is for general information only. It does not and is not intended to constitute legal or professional advice. The law may have changed since this article was published and we would always recommend that you seek specific advice on any legal issue.
