The Supreme Court handed down the decision in the case of Fearn and others v Board of Trustees of the Tate Gallery in February 2023, finding it in favour of the claimants.
Ultimately, the Supreme Court decided that the Tate’s viewing platform constitutes a nuisance to the neighbouring residential flats. It is being touted by the press as ground-breaking for the law of nuisance. We disagree.
The Tate’s viewing platform – a nuisance?
The viewing platform at the Tate was opened in 2016, providing a panoramic view of London, as well as a view of the neighbouring flats situated approximately 34 metres away. It is estimated that the Tate receives between 500,000 – 600,000 visitors a year, with up to 300 visitors at any one time. The flat owners claimed that it was a nuisance to overlook from the Tate into the flats and that it was in breach of the residents’ privacy, breaching their Article 8 rights pursuant to the European Convention of Human Rights.
In 2019, the High Court heard the claim for an injunction to limit where visitors could stand on the viewing platform, limiting their view inside the flats. The claim was unsuccessful in both the High Court and the Court of Appeal, the Court of Appeal determining that there was no right to claim nuisance in the case of overlooking a property.
The Supreme Court’s decision
The Supreme Court has decided that the flat owners were correct and that the Tate’s viewing platform does constitute a nuisance. In short, nuisance is the use of land which wrongfully interferes with a person’s use and enjoyment of neighbouring land. This use and enjoyment can extend to the amenity value of the land. An interference is only a nuisance where it is a substantial interference that is measured by reference to a ‘reasonable’ person, meaning it is an objective test.
Unlike the Court of Appeal, who determined that being overlooked was not capable of being a nuisance, the Supreme Court has decided that the overlook from the viewing platform was a nuisance. The viewing platform allowed individuals to take photos and videos, and upload those to social media. Images found on social media taken from the platform contained views into the neighbouring flats. It was this visual intrusion into the homes of neighbouring flat owners which was determined to be a substantial interference capable of constituting a nuisance.
The Court of Appeal largely considered that the protection the claimants required was a matter for the Government to draft legislation to protect. The Supreme Court disagreed in this case and considered that applying the law of nuisance, in this case, was not stretching or expanding the law, merely applying the tests properly.
We agree with the Supreme Court on that issue – this decision is unlikely to open the floodgates of claims for nuisance due to being overlooked. The Tate’s viewing platform provided a unique set of circumstances. The law has not been expanded to allow neighbours to make a claim of nuisance for neighbours looking over their fence.
What is next?
The Supreme Court has remitted the issue of what remedy the claimants are entitled to back to the High Court so it may be some time before we understand whether the Tate’s viewing platform is to close for good, whether it is to be restricted, or whether the claimants will be awarded damages for their loss of amenity. Either way, we do not anticipate that the judgment will have sweeping changes.
For more information
If you have any questions regarding the above, please contact Phil Scully in the property litigation team.
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