In 2016, the Tate Modern opened a new extension called the Blavatnik Building. The building is ten stories high and, on its top floor, has a viewing platform which offers panoramic views of London.
The Claimants were owners of flats in the neighbouring Neo Bankside development, 30 metres away from the gallery and around the same height above ground as the viewing platform. The flats had a distinctive appearance, with winter gardens that had wall-to-ceiling windows, and other living areas were also extensively glassed. Visitors to the south side of the viewing platform had a direct view into their living areas.
The viewing platform was open every day of the week and visited by an estimated 500,000-600,000 people each year. The trial judge found that a significant number of visitors displayed an interest in the interiors of the claimants’ flats. Some looked in, peered, took photographs and waved. Occasionally, binoculars had been used. Many of the photographs had been posted on social media.
The claimants sought an injunction requiring the Tate Modern to prevent its visitors from viewing their flats from the viewing platform, or alternatively, an award of damages, on the basis that it constituted a (private) nuisance.
Supreme Court Decision
Having lost in the High Court and the Court of Appeal, the flat-owners appealed to the Supreme Court. By a majority of 3 to 2, the Supreme Court allowed their appeal.
a) Principles in the tort of private nuisance
A nuisance is a use of land which wrongfully interferes with the ordinary use and enjoyment of neighbouring land. To amount to a nuisance, the interference must be substantial, judged by the standards of the ordinary person. Even where there is a substantial interference, the defendant will not be liable if it is no more than making a common and ordinary use of its own land. What constitutes an ordinary use of land is to be judged having regard to the character of the locality, eg whether it is a residential or industrial area.
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. In deciding whether one person’s use of land has infringed another’s rights, the public utility of the conflicting uses is not relevant. The benefit of land use to the wider community may be considered in deciding what remedy to grant and may justify awarding damages rather than an injunction, but it does not justify denying a victim remedy at all.
b) Application of the law in the case
The trial judge made findings that the claimants’ flats were under near constant observation by visitors to the viewing platform. There were hundreds of thousands of spectators each year and many took photographs and posted them on social media. The ordinary person would consider this level of intrusion to be a substantial interference with the ordinary use and enjoyment of their home.
By contrast, inviting members of the public to admire the view from a viewing platform is not a common and ordinary use of the Tate Modern’s land, even in the context of operating an art museum in a built-up area of south London. The Tate was therefore liable to the claimants in nuisance. The court heard no argument on the appropriate remedy and so remitted the case to the High Court to decide this question.
Implications for Developers
The Supreme Court's decision on overlooking and visual intrusion giving rise to a claim in nuisance appears to increase the risk of claims by adjoining landowners who are overlooked and may set alarm bells ringing for developers. Taken at face value, a residential property owner may now object to the use of neighbouring property which results in them being overlooked by the general public, even if the residential property is a subsequent development. Much will depend on the facts of each case but this creates a potentially significant risk for developers and landowners with property which is open to the public. Hotels, bars, restaurants and theatres with outdoor public terraces, or potentially with enclosed space from which patrons regularly enjoy the view, may be exposed to nuisance complaints from nearby residents simply because of the view afforded into the residents' property.
However, the court did emphasise that it would be relatively rare for visual intrusion to be of sufficient duration and intensity to be actionable. Lord Leggat commented it was not difficult to imagine how oppressive living in the claimants’ circumstances would feel for any ordinary person, much like being on display in a zoo. The question of whether or not the use of land is 'abnormal' will be addressed on an individual basis and is a nuanced issue. The case of the Tate viewing platform may reasonably be regarded as an exceptional one: a different outcome could well be reached with a less intensively-utilised facility.
Read the full judgment: Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent)  UKSC 4 (1 February 2023).