The widely anticipated judgement of the case of Fearn and Others v Board of Trustees of the Tate Gallery from the Supreme Court was delivered on 1 February 2023, opening up the potential for many new claims of nuisance by way visual intrusion.
The Facts of the Case
The Tate Modern contains a public viewing platform on its top floor (constructed in 2016), which provides views over the city of London to hundreds of thousands of visitors each year, but also a direct view into a number of residential flats (constructed some four years prior) which are located nearby, and which were built with floor to ceiling glass panels. The claimants are residents of four flats who originally brought
a claim in nuisance and sought an injunction requiring the Tate Modern to prevent members of the public from being able to look into their homes, by cordoning off or screening the part of the viewing platform.
The Supreme Court has overturned the Court of Appeal’s decision and found that the Tate Modern is in fact liable in nuisance, by a majority of 3 to 2.
Whilst the Court of Appeal dismissed the appeal from the flat owners (stating that overlooking by a neighbour was not capable of giving cause to an action of nuisance and instead comparing it to an invasion of privacy), the Supreme Court found that it was ‘beyond doubt’ that the Tate Modern’s viewing platform caused a substantial interference with the ordinary use and enjoyment of the flats, comparing the flat owners’ position that they found themselves in, to that of animals on display in a zoo. In giving judgement, Lord Leggatt confirmed: “In my opinion, the Court of Appeal was right to hold that the judge incorrectly applied the law but wrong to decide that the law of nuisance does not cover a case of this kind. On the facts found by the judge, this is a straightforward case of nuisance.”
Specifically, he went further to say: “the number of spectators is in the hundreds of thousands each year; and that spectators frequently take photographs of the interiors of the flats and sometimes post them on social media. It is not difficult to imagine how oppressive living in such circumstances would feel for any ordinary person – much like being on display in a zoo”.
Despite allowing the appeal, whether or not an injunction is to be granted has been referred back to the High Court. It remains to be seen whether the parties will be able to come to a private agreement on measures to be taken to remedy this.
Why is this relevant?
The ruling from the Supreme Court may be unexpected, given the Court of Appeal decision, but it does provide a fresh take on what may constitute a nuisance in the context of overlooking a neighbouring property. Whilst the facts of this case are somewhat exceptional, and we do not expect an influx of such cases to follow, this judgment also raises a number of points that may well have wider application.
- Visual Intrusion – finding that a visual intrusion can constitute an actionable nuisance is important. This, in theory, may open up litigation to identify exactly what this term means and the limits of liability between neighbours in future. It remains to be seen what impact this will have. Whilst simply overlooking a neighbour is likely not to be enough to constitute a nuisance, there is a distinction between this and inviting members of the public to actively look out into the direction of a neighbour’s land. This is, of course, an extreme example and we are unlikely to see a raft of similar cases.
- How is the property meant to be used? – the fact that the flats were located next to a tourist attraction did not affect the assessment of whether a nuisance was caused. What affected the assessment was instead whether the properties were used in their usual way. Whilst this was a rare and unusual situation, the Court left open the question as whether any premises would be impacted. It should be noted here that the use of a viewing platform was ancillary to the use as a gallery and therefore we may see a bit more circumspection going forward as to what ancillary uses are permitted, so as to ensure that there are tighter controls on what the property is actually used for.
- No need to mitigate the nuisance – it was held not to be a defence that the claimant could take steps to mitigate the nuisance, e.g. by installing blinds or curtains. This was held not to be the flat owners’ responsibility; much like in a right of light situation, it is not a defence to ask the affected property to turn on more lamps.
There are some interesting observations which follow from this case in relation to disputes with neighbours. It cannot be that every ‘annoyance’ is an ‘actionable nuisance’ and no guidance has been given as to what this means for cases in the future. From a first look, the fact that the Supreme Court has determined that this overlooking of the flats can be a nuisance may cause some concern to developers which may become another barrier to them developing in areas which are already populated, in the same way as concern needs to be given when faced with rights of light issues. That being said, the Supreme Court confirmed that the test is whether the land is being used for a common and ordinary use, and the Tate Modern’s viewing gallery failed this test. One would think (and hope) that residential and commercial developments which are in the usual course of matters would not fail such test. Nonetheless, developments will need to factor in such risk in the future.
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