A landmark judgment was handed down yesterday (1 February 2023) by the Supreme Court in Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent) [2023] UKSC 4.

In its judgment, the Supreme Court has allowed the appeal by the residents of Neo Bankside, meaning that the Tate is liable to them in nuisance. 

Background 

The case centred around glass-walled flats high above the South Bank in London. Unfortunately, those flats were around the same height as a viewing platform on the tenth floor of the newly constructed Blavatnik Building - an extension to the Tate Modern.

From the viewing platform, hundreds of thousands of visitors to the Tate could see into the flats.

The residents sought an injunction requiring the Tate to prevent its visitors viewing the flats from the platform.

Previous judgments 

At first instance, the trial judge agreed that the viewing platform constituted a material intrusion into the privacy of the residents’ living accommodation – but that this did not amount to a nuisance as the Tate’s use of its land was reasonable. The judge also levelled an amount of responsibility at the residents that had bought properties in central London with glass walls and could mitigate the issue by lowering their blinds or by putting up curtains. 

The residents made an appeal to the Court of Appeal, which held that this initial view was incorrect, but still decided in favour of the Tate, on the grounds that “mere overlooking” by the visitors could not give rise to a claim for nuisance. 

What constitutes nuisance?

The residents obtained permission to appeal to the Supreme Court.  The judgment, which runs to 97 pages, contains a useful summary of the law on private nuisance and how and why, in the Supreme Court’s view, the lower courts misinterpreted the authorities to find that, whilst sometimes sympathetic to the residents, it couldn’t find in their favour. 

In particular, the Supreme Court explained that:

1. Categories of nuisance are not “closed” – anything short of trespass could be a nuisance;
2. The courts must seek to maintain a balance between the conflicting rights of neighbouring landowners – but finding that “reasonable” balance is not a legal standard, but effectively the conclusion of the exercise;
3. It is no answer to a claim for nuisance to say that the defendant is using its land reasonably, or in a way that is beneficial to the public; and
4. The correct test is instead whether the defendant is using its land in a way which wrongfully interferes with the ordinary use and enjoyment of neighbouring land.

The Supreme Court decision

The Supreme Court therefore held that:

1. The first instance judge had applied the wrong legal test and should have instead considered whether Tate’s use of the land was common and ordinary - rather than reasonable.
   
   It was held that inviting the public to admire the view from a viewing platform was not a common and ordinary use of the Tate’s land. The result for the residents was “much like being on display in a zoo” and, although the flats were part of a mixed-use development in central London, the viewing gallery was not necessary for the common and ordinary use and occupation of the Tate’s land. Instead, it was manifestly a particular and exceptional use.
2. Although it is true that there is no claim in nuisance simply due to overlooking, the residents were complaining of constant visual instruction. The Tate had put up a sign asking visitors to respect the privacy of the residents, a move which the judgment describes as “not quite wholly useless” given visitors were permitted and invited to look out from the viewing platform.  There was no “give and take” between neighbours, and the residents were being subjected to something which went far beyond anything that could be reasonably regarded as a necessary or natural consequence of the Tate’s use. The court held the residents would not be expected to live behind net curtains all day to protect themselves from the intrusion. 

It is worth noting that the judgment did briefly consider whether planning regulation would be a better medium for controlling the overlooking [109-110]. 

However, following Lawrence v Fen Tigers the Court held that planning and the common law of nuisance have different functions. Indeed, there had been no consideration given to overlooking in the planning process for the Blavatnik Building.

And those that found the opposite

It was, however, another majority judgment (3-2). 

Dissenting, Lord Sales and Lord Kitchin focussed more specifically on whether the tort of private nuisance would apply in the case of residential property subject to visual intrusion, and whether there was an actional private nuisance caused by the viewing platform. 

The answer, in the minority’s view, rested on principles of reciprocity and compromise – which the judge at first instance was better placed to determine. Given that - the minority held - his approach was correct, the Court should not have interfered with the original decision. 

Impact of the decision

Although the Supreme Court found in favour of the residents, the case has been remitted to the High Court to determine the appropriate remedy. However, the judge at first instance had noted that the only remedy that had been claimed in the particulars of claim was injunctive relief.

We therefore await with interest whether settlement might instead be reached before then, either on financial terms or to limit the use of the viewing platform – or, more likely, both. If the case does not settle, the court will need to decide whether the balance lies in favour of an injunction or whether damages will be a sufficient remedy. 

It is important to note that according to the Supreme Court judgment, although much discussed at first instance, it didn’t matter that the flats had been built before the viewing platform, nor whether either developer were aware of the other’s intended use of their land [51]. 

This decision may therefore be of some comfort to developers planning construction near residential buildings – when it comes to nuisance, each case will turn on its facts, not on who was there first.

The Supreme Court also made it very clear that this was an extraordinary case – simply being able to look into neighbouring premises will not be enough for a successful nuisance claim.