On 1 February 2023, the landmark judgment of the Supreme Court in the case of Fearn & Others v The Board of Trustees of the Tate found that the Tate Gallery’s viewing platform constitutes a legal nuisance.
Jane Rees, Associate at Berry Smith LLP, considers how this ruling could influence future claims in nuisance.
The Tate case concerns the 2016 opening of the Blavatnik Building, i.e. the 10-story extension at the Tate which included a viewing platform on the top floor offering panoramic views of London.
The Claimants own glass-walled flats situated next door to the Tate which are of a similar height to the Blavatnik Building. The southside of the viewing platform offered a view directly into the Claimants’ flats.
The Claimants’ claim in private nuisance sought an injunction preventing the public from being able to look into their flats from the viewing platform or in the alternative, an award of damages.
Ultimately, the Supreme Court found in favour of the Claimants; the Tate is liable in nuisance and the remedy is now hotly anticipated from the High Court.
This ruling caused concern to developers and owners of private and commercial buildings because it confirms that a visual intrusion can be an actionable nuisance. Moreover, it potentially opens floodgates for people wanting to prevent their neighbours having windows offering a view into their properties / gardens.
However, it is important to consider how the Supreme Court reached its decision. Whilst it was found that there was, effectively, no limit as to what can constitute a nuisance; “anything that materially interfered with the ordinary use and enjoyment of neighbouring land would qualify”, a balance must be struck between the competing rights of ordinary use of the nearby property owners.
Although the Claimants chose to reside in flats with glass walls, the viewing gallery of the Tate meant that the flats were viewed by thousands of visitors per week, many with cameras and binoculars. Indeed, visitors were effectively invited to the viewing platform to gaze into the Claimants’ flats and the Tate allowed this to continue, uninterrupted, every day.
Moreover, it was questionable as to whether the viewing platform was “common and ordinary use of the property”. Ultimately it was found that it was not because the public use of the viewing platform was ‘exceptional’ and was not a requirement or an everyday occurrence of running an art gallery. It was found that the Tate was using its property in an “abnormal and unexpected way” due to the sheer volume of visitors using the viewing platform.
This is important because the Supreme Court confirmed that if the Tate had been using its land in its ordinary manner, the Claimants could not have objected about visual privacy brought on by the design of their flats with glass walls.
Overall, it will come as somewhat of a relief to owners of ‘ordinary’ residential and commercial properties that the ruling of the Supreme Court does not mean that ‘mere overlooking’ gives rise to liability in nuisance when properties are used in a common and ordinary way. Careful consideration must be given to all facts and properties are being used when considering a nuisance claim.
Should you require advice with regard to a potential nuisance, Berry Smith’s Dispute resolution Team can assist.
Please contact us on 029 20345511 or disputeresolution@berrysmith.com
