This blog was contributed by Dr Carol Brennan, Teaching Fellow for Undergraduate Laws.
Four years ago, I wrote a blog describing the involvement of a major London tourist attraction in a very newsworthy nuisance action. I can now provide a final (I hope) update, because the Supreme Court has recently handed down a surprising decision in Fearn and others v Board of Trustees of the Tate Gallery  UKSC 4.
The Tate Modern, an art gallery on the south bank of the Thames, is situated in a massive converted power station. It opened in 2000, displaying an international collection of contemporary art. In 2011, a ten-story extension to the museum was begun; now named the Blavatnik Building after a key donor, it opened in 2016 and one of its highlights is a ‘viewing platform’, offering a stunning 360-degree aspect of the London skyline to as many as 300 visitors at any one time. Those enjoying the views, perhaps with a coffee or glass of wine, can also gaze straight into homes belonging to residents of the adjacent luxury apartment building: NEO Bankside, also begin in 2011 and completed in 2012. These multi-million pound flats featuring floor-to-ceiling glass walls, are stunning architectural designs which afford Tate visitors unimpeded visual access from the viewing platform into the interiors of a number of living spaces; the 18th and 19th floors being opposite the platform at a distance of only 34 metres. There are an estimated 600,000 visitors to the Tate viewing gallery per year and one claimant counted 84 people looking and taking photos in a 90 minute period, some of which were posted on social media. They reported waving and even obscene gestures.
The law became involved when the owners of four of the overlooked flats launched actions in nuisance and breach of privacy, seeking an injunction to compel the Tate to take steps preventing what they described as ‘relentless’ intrusions. In response to complaints the Tate significantly reduced the opening hours of their viewing gallery and installed security guards, along with signs reading: ‘please respect our neighbours’ privacy’. As the controversy deepened, the then Director of the Tate Nicholas Serota, had suggested that NEO Bankside residents could install net curtains – a solution which was not popular with those whose aspirations were for more 21st century interior décor!
The claimants were unsuccessful in both the High Court and the Court of Appeal, however in the landmark decision of February 2023 the Supreme Court overturned the lower courts by a majority of 3:2. Students reading the majority opinion of Lord Leggatt will benefit from an comprehensive review of the law of private nuisance, including key issues such as: locality, special sensitivity, planning permission, coming to a nuisance and public utility. In rejecting an opinion of the Court of Appeal that overlooking cannot constitute nuisance, Lord Leggatt said, ‘This is a straightforward case of nuisance.’ He confirmed that nuisance can be caused by any means: ‘the categories of nuisance are not closed’. This conclusion is supported by an illustration from the London Assize in Nuisance of 1341, I think the oldest tort case I have ever read! In reference to the Court of Appeal’s conclusion that the appellants’ claim could not succeed on the basis of ‘mere overlooking’, the Supreme Court distinguished the defendants’ interference as qualitatively different from ‘mere overlooking.’ Regarding the constant intrusion the claimants experienced, ‘…it is not difficult to imagine how oppressive living in such circumstances would feel for any ordinary person – much like being on display in a zoo.’
It was the defendants’ 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 the significant intrusion that constituted a nuisance. To paraphrase Lord Leggatt, no realistic attempt had been (or even could be) made by the Tate to deter the prying activities of the viewers. This was not a ‘common and ordinary use of land.’ The defendants’ suggestion that the claimants take their own protective actions, such as installation of privacy film on windows, was inappropriate; effectively blaming the victim. The issue of public utility had weighed in the defendants’ favour in the lower courts in recognising the benefit of the Tate’s facilities to Londoners and visitors. However the Supreme Court reiterated the well-established principle that any public benefit could be reflected in the remedy awarded, but should not impact on the decision of whether or not a nuisance existed. No specific remedy was prescribed but the case was to be remitted to the Chancery Division in the event that the parties themselves could not reach a settlement on an appropriate remedy.
The speech of Lord Leggatt illustrates the basic essence of the action in private nuisance, that is the difficulty presented to a court of balancing the competing interests of the two parties. Visual intrusion can amount to an actionable nuisance where there is a substantial interference with the ordinary use and enjoyment of the property. Whether Fearn signifies any opening of the floodgates (with implications for developers and planning authorities) remains to be seen, however it cannot be forgotten that this was an extreme situation. Suffice to say that the inhabitants of NEO Bankside never consented to living in a zoo.