Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4

Residents of Neo Bankside flats with glass walls claimed nuisance against the Tate Gallery whose viewing gallery allowed hundreds of thousands of visitors annually to look directly into their living areas. The Supreme Court held that visual intrusion can constitute actionable private nuisance and that the Tate was liable, remitting the case for determination of remedy.

Facts

The claimants owned flats in the Neo Bankside residential development in London, located approximately 34 metres from the Blavatnik Building extension of Tate Modern. The flats were designed with floor-to-ceiling glass walls. The Tate opened a public viewing gallery on the top floor of the Blavatnik Building in 2016, offering 360-degree panoramic views of London. Between 500,000 and 600,000 visitors used the gallery annually. The trial judge found that visitors frequently looked into the claimants’ living accommodation, with many taking photographs and some posting images on social media. The claimants sought an injunction to prevent the Tate from allowing viewing of their flats from the southern portion of the gallery.

Planning and Construction Background

Both developments were designed and constructed in parallel between 2006-2016, without the visual intrusion effects being fully appreciated or addressed during the planning process. The judge found no consideration was given to overlooking in the planning permission for the Tate extension.

Issues

Two principal issues arose: (1) whether visual intrusion can in principle constitute an actionable private nuisance; and (2) if so, whether the facts of this case established such a nuisance.

Judgment

Majority Decision (Lord Leggatt, Lord Reed and Lord Lloyd-Jones)

The majority held that visual intrusion is capable of constituting an actionable private nuisance. Lord Leggatt stated:

“There is no conceptual or a priori limit to what can constitute a nuisance. To adapt what Lord Macmillan said of negligence in Donoghue v Stevenson [1932] AC 562, 619, the categories of nuisance are not closed. Anything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land is capable of being a nuisance.”

On the core principle governing nuisance, Lord Leggatt explained:

“The governing principle is good neighbourliness, and this involves reciprocity. A landowner must show the same consideration for his neighbour as he would expect his neighbour to show for him.”

The majority found the trial judge had erred in applying the wrong legal test by asking whether the Tate’s use was “reasonable” rather than whether it was a “common and ordinary use” of land. Lord Leggatt stated:

“Inviting members of the public to look out from a viewing gallery is manifestly a very particular and exceptional use of land. It cannot even be said to be a necessary or ordinary incident of operating an art museum.”

The majority rejected the argument that the claimants should take remedial measures such as installing blinds or curtains:

“The claimants cannot be obliged to live behind net curtains or with their blinds drawn all day every day to protect themselves from the consequences of intrusion caused by the abnormal use which the Tate makes of its land.”

Dissenting Judgment (Lord Sales and Lord Kitchin)

The dissent agreed that visual intrusion can in principle constitute a nuisance but would have dismissed the appeal on the basis that the trial judge correctly applied the “give and take” principle. Lord Sales emphasised:

“The unifying principle underlying the tort is reasonableness between neighbours… A landowner must show the same consideration for his neighbour as he would expect his neighbour to show for him.”

The dissent considered the claimants’ glass-walled design created heightened sensitivity to visual intrusion beyond what was ordinary for the locality, and that reasonable self-help measures were available.

Implications

This decision confirms that: (1) visual intrusion can constitute actionable private nuisance where sufficiently serious; (2) the test is whether the defendant’s use of land is “common and ordinary” rather than simply “reasonable”; (3) the sensitivity of a claimant’s building design does not provide a defence where the defendant’s use is exceptional; (4) claimants cannot be required to take self-help measures to mitigate interference caused by abnormal uses of neighbouring land; and (5) public benefit is relevant only to remedy, not liability.

The case was remitted to the High Court to determine the appropriate remedy, with the court noting that the public interest in maintaining the viewing gallery may be relevant to whether an injunction or damages should be granted.

Verdict: Appeal allowed. The Supreme Court held that the Tate Gallery was liable in nuisance for the visual intrusion caused by operation of its viewing gallery. The case was remitted to the High Court to determine the appropriate remedy.

Source: Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4