Fearn and others v Board of Trustees of the Tate Gallery

In an important case for developers and property owners, the long-awaited Supreme Court judgment of Fearn v Tate Gallery [2023] UKSC 4 held, by a majority of 3:2, that ‘visual intrusion’ can give rise to liability in nuisance.

The facts

• The Tate Modern (the Tate) opened a new extension in 2016 called the Blavatnik Building, which is ten stories high and, on its top floor, has a viewing platform that offers panoramic views of London to its estimated 500,000 – 600,000 visitors each year.
• The claimants in this case own four flats in a residential development that is in close proximity (approximately 34 metres) to the Blavatnik Building and its viewing platform. The flats in question have a living area with floor-to-ceiling windows and, as a consequence, the claimants were subject to relentless invasion of their privacy from visitors to the viewing platform, including staring, the taking of photos, use of zoom lenses and recording of video (which was in some cases shared on social media).
• The claimants sought an injunction requiring the Tate to prevent members of the public from being invited to look into their flats from the viewing platform, or alternatively, an award of damages.
• The claim itself was based on the common law of nuisance, which failed in both the High Court and the Court of Appeal.
• The Tate argued, amongst other defences, that any visual intrusion was superseded by a landowner’s right to develop something beyond the “common and ordinary”. This argument was not accepted by Lord Legatt, who delivered the majority judgment in the Supreme Court.

The law

Lord Leggatt’s starting point was to restate the foundational principles of the tort of private nuisance as being:

i. The relevant harm is the diminution in the utility and amenity value of the claimant’s land, and not personal discomfort to the persons who are occupying it.

ii. There is no conceptual or a priori limit to what can constitute a nuisance.

iii. The question for the Court is: Has the defendant’s use of land caused a substantial interference with the ordinary use of the claimant’s land ([21])? There is then discussion of how “substantial” and “ordinary” should be defined and the principles which inform that analysis.

The decision

The Court of Appeal agreed with the High Court’s finding that an invasion of privacy caused by being overlooked could not be construed as a nuisance. The Supreme Court, however, determined in favour of the claimants by saying that the situation was “a straightforward case of nuisance” on the basis that the offensive behaviour in this case arose by virtue of the particular use by the Tate of the viewing platform, namely the action of inviting members of the public to visit and look out in every direction.

The Supreme Court therefore held as follows:

• The claimants are using and enjoying their flats in an ordinary manner
• It is “beyond doubt” that the viewing platform causes a substantial interference with the ordinary use and enjoyment of the claimants’ flats, comparing the claimants’ position to that of animals “being on display in a zoo”.
• “Inviting members of the public to look out from a viewing gallery is manifestly a very particular and exceptional use of land”.
• It is immaterial who was there first, although in this case, the claimants purchased their flats in 2013 / 2014 (i.e. prior to the completion of the Blavatnik Building).
• There was no obligation on the claimant to take reasonable steps to mitigate the nuisance, for example, by putting privacy blinds over the glass. It is not for a claimant to have to take action because the defendant has chosen to use their property in an exceptional way.
• It was not a defence to say that the claimants’ properties was in a sensitive area with a high level of tourists.

Summary

It is likely that this case will open the door for a series of claims that seek to explore what ‘visual intrusion’ means, and the limits of any such liability between neighbours, in circumstances where there is not “a very particular and exceptional use of land”.

The key points to take away for now are as follows:

• While visual intrusion amounted to nuisance in this case, it is important to note that being merely overlooked does not generally constitute nuisance.
• There is no burden on the claimant to avoid the nuisance.
• The ‘sensitivity’ or otherwise of a claimants’ property is not a defence to liability.
• While developers will be carefully considering designs which could risk visual intrusion, in more normal circumstances this will remain a difficult claim.
• The Court has a duty to consider the public interest when deciding whether to grant an injunction or to award damages.
• The Supreme Court does not address the sometimes-overlooked requirement of foreseeability as an element of liability in private nuisance, however this principle still needs to be taken into account in such cases.

Contact our commercial litigation solicitors in Westminster, London

Jai Sharda is a Partner in the Litigation and Dispute Resolution Department and is recognised as an expert in commercial dispute resolution and arbitration. If you would like to speak to Jai, contact him by ringing 020 7873 1000, email him at law@williamsturges.co.uk or fill in our contact form.