Tate Modern and the law of nuisance: time to take a different point of view

On 1 February 2023, the UK Supreme Court handed down its long-awaited decision in the case of Fearn and others v Board of Trustees of the Tate Gallery. And it is already being described as one of the most influential judgments of recent years – perhaps even a reset of the law of nuisance in England and Wales as we knew it.

But the question many people are asking now is: what effect will the decision really have? Is it indeed a game-changer? Or, is it an outlier, confined to its own facts? We will be examining those questions in more detail in a future article but for now, here is a summary of the key points.

What were the facts?

In 2016, the Tate Modern gallery in London (the Tate) opened a new extension called the Blavatnik Building. It has a viewing platform on the top floor. It is ten stories high and offers panoramic views over the London skyline. But it also offers views to and through the floor to ceiling windows of a number of flats situated within a neighbouring building.

This, the High Court found, led to significant numbers of the Tate’s visitors peering into and even photographing their interiors. As a result, the owners of some of those flats sued the Tate in nuisance.

How did the lower courts (High Court and Court of Appeal) decide the case?

Both the High Court and the Court of Appeal found against the flat owners. The High Court judge found that they had exposed themselves to visual intrusion, by choosing to live in flats with floor to ceiling windows. Plus, it would be reasonable to expect them to adopt mitigations, such as putting up curtains. The Court of Appeal disagreed with the trial judge. Nonetheless, it still found in favour of the Tate, on the basis that mere overlooking does not amount to an actionable nuisance.

What did the Supreme Court decide?

The Supreme Court found, by a majority, in favour of the claimants. It drew a distinction between (a) mere overlooking of an adjacent property; and (b) conduct which goes further, so as to amount to a ‘visual intrusion’.

This is the headline point: the actions of the members of the public on the viewing platform had gone beyond incidental overlooking. They were actively intruding (even to the extent of using binoculars in some cases) on the ordinary use and enjoyment of the claimants’ properties. The Court also found that the defence (to a nuisance claim) of a person doing no more than use their land in a common and ordinary way was not available to the Tate (i.e. because an external viewing platform is not a common or ordinary feature of a public art gallery).

Why does this matter?

This is a decision of the Supreme Court and so, for the time being (i.e. unless the Supreme Court revisits the issues on a separate appeal), future court cases in England and Wales will be bound by it. And the decision leaves some real uncertainty in its wake:

• At what point will the threshold between (non-actionable) incidental overlooking and (actionable) visual intrusion be crossed?
• What will the likely remedy be in cases where the actions of the defendant are found to amount to a nuisance?

This particular point was not answered by the Supreme Court and so we will have to wait for the High Court to decide if the flat owners are entitled to an injunction, damages in lieu or in addition.

Comment

This is undoubtedly an important decision that widens the scope of the law of nuisance. In theory, it will affect all property owners in England and Wales whose property is overlooked (or, whose property may soon be overlooked) by another building.

The Supreme Court was careful, however, to acknowledge that overlooking will not, in and of itself, give rise to a claim in nuisance.

Each case will need to be assessed objectively and on its own facts. But even the risk of litigation on this point will be a real concern for many and property developers and investors in particular, who may now turn to the insurance market to help guard against it.

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