The Supreme Court has issued a landmark judgment on the law of private nuisance in Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4.
In 2016, the Tate Modern gallery had opened an extension including a viewing platform on the top floor, overlooking the neighbouring block of Neo Bankside flats (which features floor to ceiling glass walls) at a distance of 34 metres. A claim was brought by the neighbours, alleging nuisance and seeking an injunction preventing the Tate's visitors from looking into their flats and/or damages.
Allowing the flat owners' appeal by a 3:2 majority, the Supreme Court decided it was beyond doubt that the viewing and photography taking place from the Tate's building amounted to a substantial interference with the use and enjoyment of the claimants' home. It ruled that the operation of a public viewing gallery fell outside the ordinary use of the Tate's land (even as an art gallery), making the Tate liable in nuisance.
The Supreme Court held that the trial judge was wrong in three areas of law:
- The wrong test was applied by asking whether the Tate's use of its land was 'unreasonable' rather than ordinary;
- Consideration had wrongly been given to the claimants exposing themselves to visual intrusion by living in flats with glass walls. This defence failed because the Tate gallery was using its land in an abnormal and unexpected way;
- Consideration had wrongly been given to whether blinds could have minimised the intrusion. The claimants could not be obliged to take remedial measures to avoid the consequences of the abnormal use which the Tate made of its land.
The Supreme Court further considered that the Court of Appeal had wrongly decided that the claim must fail because "mere overlooking" cannot give rise to liability for nuisance. The Supreme Court ruled that the claimants' central complaint amounted to more than mere overlooking and that visual intrusion of the level complained of in this case could amount to a nuisance.
