What a nuisance: the impact of Fearn v Tate Gallery on future nuisance claims

The viewing platform at the Tate Modern Gallery was once considered one of London’s best free viewpoints.

Over recent years, however, it has caused controversy with neighbours.

Between 2006 and 2012, four blocks of flats were built on the south bank of the River Thames. These modern flats were almost entirely surrounded by floor-to-ceiling glass panels.

Starting in 2006 and finishing in 2016, the Tate Modern built an extension – the Blavatnik Building – with a viewing platform installed on the top floor.

While boasting panoramic views of London, the platform also allowed hundreds of thousands of visitors a year to see directly into the adjacent flats.

The tenants complained that visitors to the viewing platform frequently took photographs of their living quarters, posting these on social media. Some even viewed the interior with binoculars.

The appellants sought an injunction against the Tate Modern in nuisance to prohibit visitors from certain areas of the viewing platform, on the basis that overlooking unreasonably interfered with the use of their property.

The court at first instance and the Court of Appeal refused to grant an injunction.

The Supreme Court ruling

In what will be considered a landmark decision, the Supreme Court overturned the decision of the lower courts.

It held that the viewing platform allowed Tate Modern visitors to cause a nuisance to the adjacent flat owners.

Following an assessment of the scope of private nuisance, the court highlighted that nuisance can be caused by any means: there is no limit to what can constitute a nuisance.

The Supreme Court said that public utility is not a defence to a claim of nuisance. Its only relevance is when considering what remedy to grant.

Public utility “may justify awarding damages rather than an injunction, but it does not justify denying a victim any remedy at all”.

The constant observation by visitors to the viewing platform constituted a level of intrusion which the ordinary person would consider to be a substantial interference with the ordinary use and enjoyment of their home.

Moreover, the Tate Modern’s invitation to the public to admire the view from a platform is not a “common and ordinary use of … land” – notwithstanding consideration of its location in London as an art museum.

Remarking on the Court of Appeal’s conclusion that the appellants’ claim could not succeed on the basis of “mere overlooking”, the Supreme Court viewed the complaint as qualitatively different.

It was the invitation of the public to an area where they can peer into the claimants’ flats – and allowing this activity most of the day, every day of the week – that gave rise to a significant intrusion that constituted a nuisance.

What does the decision mean for future claims?

The significance of this decision is profound.

Practitioners need to carefully consider the reasoning and adapt the advice given to clients on the potential influence it may have on future claims of nuisance, as well as the wider impact this decision will have when advising developers and/or aggrieved neighbours.

Ultimately, the courts identified failings from several institutions:

• in the commercial decisions taken by the Tate Modern
• to a lesser extent, in the commercial decisions taken by the developers of the flats infringed upon
• by the public authorities who permitted the construction and development of both premises in a similar timeframe, without taking into consideration the impact they might have on each other

Planning authorities may need to assess the potential impact of causing an overlooking nuisance on future developments before granting planning permission to avoid this type of situation from reoccurring. There is no guarantee that lack of foresight will be tolerated by the courts in future.

It is uncertain in the short term how the reasoning in this judgment will be applied by the courts.

Practitioners should be braced for novel arguments concerning whether:

• there is a risk of an overlooking nuisance
• the function is necessary for the common and ordinary usage of the land, and
• there was adequate consultation from surrounding neighbours

There is also the question (raised by the first instance judge) whether remedial and mitigating steps could have been taken by both sides to reduce the intrusion and inconvenience suffered by the tenants.

The Supreme Court decided it would be unreasonable to place such a burden on the tenants.

It is not difficult when thinking about the wider implications to see why that conclusion was reached – although one wonders whether the same outcome would have been achieved had the design and construction of the flats taken place materially after the Tate's extension.

Finally, it is worth considering what parliament will make of this ruling.

The judgment was given by a narrow 3:2 majority. An issue that weighed on the dissenters, as well as the decision of the Court of Appeal, was a desire not to encroach on parliamentary sovereignty by creating new law.

If the floodgates are opened too wide, parliament may well take steps to intervene and create new legislation relating to public overlooking.

Only time will tell whether this decision will be a help or a hindrance in the long term.

For now, there is one thing we can say for certain: nuisance has never been more interesting.