The Tate Modern Viewing Gallery Case: Implications for Planning

United Kingdom

On 1 February 2023, the Supreme Court handed down their much-awaited judgment in Fearn and others v Board of Trustees of the Tate Gallery,[1] finding that the impacts of the Tate Modern’s viewing gallery on the privacy of adjacent luxury flat owners constituted an unlawful nuisance.

Five owners of luxury flats argued that overlooking by visitors to the viewing platform, which attracts hundreds of thousands of visitors each year, amounted to a nuisance.[2] The claimants were unsuccessful in the High Court and Court of Appeal. However, the Supreme Court disagreed, in a significant judgment for the tort of private nuisance.

In this Law-Now, we consider the implications of the Supreme Court’s judgment for the planning system. For a discussion of what the case means for the law of nuisance, please refer to this Law-Now by CMS’ Real Estate Disputes experts.

What does the Tate case mean for planning?

The Supreme Court reaffirmed the approach taken in Coventry v Lawrence in 2014.[3] This was the most recent Supreme Court decision on private nuisance before Tate. In Lawrence, the Court ruled that planning permission should only play a very limited role in nuisance claims.

Although the Supreme Court was split in the Tate case, the majority and minority both agreed that nuisance and planning perform different functions. The planning system controls the development of land in the public interest, while nuisance confers property owners with the right to enjoy their land without undue disturbance. Lord Leggatt noted that “planning laws are not a substitute or an alternative for the protection provided by the common law” and that planning permission does not erase or impede private rights.[4] The position is now clearer still: an activity will not be immune from private nuisance, merely because it benefits from planning permission. Local planning authorities and the development sector will be relieved to understand that Tate does not require private law impacts of a development to be read across into planning decision-making in every case.[5] This would be a challenging task which authorities would be ill-equipped to perform.

The planning history of a development, including whether the local planning authority rejected planning objections based on overlooking (or whether any such objections were made), makes no difference to whether a nuisance claim can succeed.[6]

Whilst the commentary above relates to the Town and Country planning regime, it is worth noting that development consent for nationally significant infrastructure under the Planning Act 2008 may provide a defence to claims in statutory nuisance. However, statutory nuisance and private nuisance are two separate areas of law and the Tate judgment does not relate to statutory nuisance.

Also, the Supreme Court in Tate confirmed that planning authorities may take into account an “open-ended” range of factors when determining whether to grant planning permission for a proposed activity. Decision-makers may consider the impacts on the amenity of nearby properties, and indeed this may now be more likely following the controversy surrounding the Tate case and the Government’s renewed focus on high quality design.[7] In addition, the NPPF (itself a material consideration for decision-makers) requires planning polices and decisions to ensure that new development is appropriate for its location taking into account the impacts of pollution, such as noise and light, and “the potential sensitivity of the site or the wider area to impacts” that may arise.[8] However, in legal terms, planning authorities are not required to give amenity impacts or overlooking any particular weight. Authorities may still rationally conclude that the adverse amenity impacts of a development are outweighed by other public benefits.

A recent Court of Appeal judgment emphasises that planning decision-makers are entitled to take a broad approach to assessing amenity impacts. In CAB Housing Limited v SSLUHC,[9] Lindblom J ruled that the General Permitted Development Order does not limit the types of amenity impacts which decision-makers are entitled to take into account when they consider prior approval applications for the construction of additional residential storeys.

Will the courts take the public interest or planning permission into account when deciding the remedy for a nuisance?

The Supreme Court also confirmed that judges should not normally take into account the public benefit of an activity when deciding whether it is a nuisance. However, if they do find it to be a nuisance, public benefits may be relevant when the court decides what the appropriate remedy should be.[10]

In Tate, the Supreme Court preferred to remit the choice of remedy to the High Court, who will decide whether to award damages or an injunction (or both). It had been suggested in some previous case law that if it would be in the public interest for an activity to continue (of which the grant of planning permission could be a strong indication), this might justify awarding damages instead of an injunction. Effectively, this would mean that the activity continues subject to compensation. However, in Lawrence, the Supreme Court majority said that the choice of remedy involves “a classic exercise of discretion” by the court.[11] It will be interesting to see how the High Court approaches this issue and the weight afforded to the public interest in the activity and/or the grant of planning permission.

Building works will not normally constitute a nuisance

The Supreme Court confirmed that so long as “all reasonable and proper steps are taken to ensure that no undue inconvenience is caused to neighbours”, construction and demolition works will not normally constitute a nuisance.[12] This will give further comfort to developers, who will note that planning conditions typically incorporate a number of controls which serve to mitigate the impacts of construction/demolition, often within “CEMPs” and “DEMPs”.


It is reassuring that the Supreme Court reaffirmed the limited degree of overlap between planning law and private nuisance.

However, the judgment also confirms that any activity can, in principle, constitute a nuisance, including overlooking. Developers may therefore be concerned that even after securing planning consent, their development could be susceptible to a nuisance challenge, although technically this has always been the case. But it is worth highlighting just how unusual this case was: huge numbers of visitors attended the viewing gallery each day; the claimants’ flats’ glass walls gave gallery visitors “an apparently clear view of how the claimants seek to conduct their lives”;[13] and yet the issue of overlooking was not picked up at any stage during the planning process. The Tate case is unlikely to lead to a slew of successful nuisance actions but developers should expect it to be cited by objectors at the planning stage.

Objectors can still have recourse in nuisance, even though the development benefits from planning permission. However, the differences of opinion expressed in the High Court, Court of Appeal and Supreme Court show how uncertain nuisance litigation can be and this may deter future claimants. The uncertainty is not surprising, given that judges in nuisance claims are essentially being asked to reach a view on just how much “give and take” neighbours should withstand. These judgments will only become more complex as urban developments increase in density and place-makers seek to bring a broader range of uses into closer proximity.

Although nuisance law and planning will continue to co-exist in parallel, the Tate judgment has brought into focus just how controversial a development’s impacts on neighbouring properties can be. Far from causing authorities to shy away from these issues at the planning stage, the case may encourage them to require developers to carry out more rigorous assessments of amenity impacts, particularly where novel uses are proposed.

The Government’s continued emphasis on high-quality, place-sensitive design only underlines the expectation that planning authorities should closely assess the impacts of a proposed scheme on neighbours. For example, the latest version of the City of London’s draft local plan recognises the need to protect existing residents from adverse amenity impacts and to minimise overlooking from new developments. The plan will require applicants for planning permission to identify potential impacts on neighbours and propose mitigation measures. Where necessary, planning conditions will be imposed to limit the amenity impacts of the new scheme.

Article co-authored by Jasmine Kaler, Trainee Solicitor at CMS

[1] [2023] UKSC 4.

[2] The claimants also brought a head of claim under the Human Rights Act 1998.

[3] Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822.

[4] Tate, [110].

[5] There may still be some circumstances in which private law constraints are material considerations for the local planning authority.

[6] Tate, [201].

[7] This renewed focus on design has been a theme in a series of reports and policy announcements, including the creation of the “Building Better, Building Beautiful Commission”.

[8] National Planning Policy Framework (2021), para 185.

[9] [2023] EWCA Civ 194.

[10] Tate, [120] and [126].

[11] Lawrence, [120].

[12] Tate, [37].

[13] Tate, [2].