Just one look at you: Supreme Court rules that visual intrusion from the Tate Modern viewing gallery is a nuisance

The Supreme Court has handed down its much awaited and significant judgment in the case of Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent) [2023] UKSC 4, ruling by a majority in the Appellants’ favour that the use of the Tate Modern viewing gallery amounted to a nuisance. The Appellant leaseholders may now be awarded an injunction and/or damages against the Tate.

Background

A claim in nuisance and under the Human Rights Act 1998 was brought by five luxury flat owners against the owners of the Tate Modern (the “Tate”) in 2017. The claimants’ flats have large glass windows in Neo Bankside on the South Bank of the River Thames, where the living areas can be seen from the viewing platform of the neighbouring Tate Modern. The claimants wanted an injunction requiring the Tate to stop members of the public using the platform to observe their flats, which (as the Trial Judge found) included having photographs taken which were posted to social media and in some cases, the use of binoculars to peer into the flats.

The High Court held that there was no cause of action under the HRA 1998 and no actionable nuisance. The claimants appealed to the Court of Appeal, who, in 2020, handed down their judgment which disagreed with the High Court’s reasoning but nevertheless dismissed the appeal.

(See further reading below for more details of these cases.)

The claimants appealed further to the Supreme Court and on 1 February 2023 it handed down its landmark judgment.

The Supreme Court Judgment

Lord Leggatt gave the leading judgment (in favour of the claimants reflecting the majority view of the Supreme Court) and found: 

• Whilst mere overlooking does not give rise to a liability for nuisance, this was not the complaint in the present case. Rather, the Tate was inviting members of the public to a viewing platform which allows people to look into the Appellants’ flats every day of the week, comparing the situation with being on display in a zoo. This was not mere overlooking but constant visual intrusion.
• This was a substantial interference with the Appellants’ “ordinary use and enjoyment” of their land and could therefore give rise to a liability for nuisance.
• What constitutes “ordinary use” is judged having regard to the character of the location, and even though the building in question is an art museum in a built-up area, inviting members of the public up to a viewing platform is not a “common and ordinary use” of the Tate's land.
• The Court of Appeal’s comments that, if the appeal were allowed there would be a difficulty in “drawing the line”, were rejected. If correct, this would render the law to be “utterly ineffectual”.
• Whilst the appellants, by choosing to live in homes made with glass walls, had exposed themselves to visual intrusion, the Tate had not been using its land in an “ordinary” way. Therefore it was not an answer to the claim to say that the design or construction compounded the nuisance.
• In contrast to the dissenting Judgment, it was not reasonable to expect the appellants to take their own measures to avoid being seen from the viewing platform (such as putting up blinds or curtains) as this wrongly placed the responsibility on the victim.
• Public interest considerations may be relevant to the question of remedy (i.e., whether an injunction and/or damages are appropriate, and on what terms and sum), but not to the question of liability.
• The Supreme Court has deferred the decision on what remedy is appropriate (damages or an injunction) to the High Court.

The full judgment can be found here.

CMS comment

While the facts of this case are somewhat unusual, this is a landmark decision which will be controversial and relevant to all developers and landowners in confined urban environments. The Supreme Court has overturned lower court decisions to recognise that intrusion of privacy (by visitors staring from one building into another) can constitute a nuisance, entitling the invaded property owner to seek an injunction or damages preventing such intrusion. It will be relevant to all developers in confined urban spaces and is now a live consideration when appraising potential developments. Developers can expect privacy to be raised more frequently by those who object to development. It may now emerge as a long lost third prong in neighbours’ passive trident, alongside rights of light, and planning law. For residents (and other occupiers) however, the decision provides some reassurance that they should not be subjected to extreme visual intrusion, nor are they required to take steps to remedy a nuisance imposed on them by others.

Further reading:

They’ll be watching you: High Court finds that Tate visitors are not a nuisance (cms-lawnow.com)

They’ll still be watching you: Court of Appeal agrees that Tate visitors are not a nuisance (cms-lawnow.com)