On 1 February 2023 the Supreme Court handed down the much-anticipated decision in Fearn v Tate Gallery. The decision attracted some controversy, as it overturned both the decision of the court at first instance and the Court of Appeal decision, and was itself a decision which split the Supreme Court by 3-2. The decision has potentially far-reaching consequences and it is yet to be seen whether government intervention, specifically as regards to overlooking, may be required.
Background
The Tate Modern art gallery constructed a viewing platform on its top floor in 2016 to provide views of the city of London to visitors, however it also had a direct view into residential flats located near the gallery which had floor to ceiling glass windows and which had been built some 4 years prior to the viewing platform.
The owners of the flats brought a claim in nuisance against the Tate Modern and sought an injunction requiring the same to screen or cordon off part of the platform so it was no longer possible to look into their homes. The Tate counter-argued that the claim should be dismissed as, amongst other things, the platform brought a public utility and that preventative measures by the flat owners, such as lowering blinds, could reduce the interference.
As mentioned above, both the court of first instance and the Court of Appeal had rejected the claim by the flat owners.
The Ruling
The Supreme Court overturned the decision of the lower Courts and held that the viewing platform allowed visitors to cause a nuisance to the flat owners. The Court analysed the scope of private nuisance and stated that there is no limit to what can constitute a nuisance. The Court decided that visual intrusion where there is substantial interference with the ordinary use and enjoyment of the property can amount to an actionable nuisance. In the Court’s own words, the Claimants’ flats “are under constant observation from the Tate’s viewing gallery for much of the day, every day of the week; that the number of spectators is in the hundreds of thousands each year” and “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.“
One aspect which was not considered by the Court, and will be decided by the High Court, is what remedy the Claimant will now receive – be it an injunction or damages. It is possible that a private settlement may be reached before the question is considered by the Court again.
Comment
The decision has wide implications for the law surrounding nuisance claims, not least of which is that visual intrusion can constitute an actionable nuisance. The parameters of this are yet to be fully fleshed out, as it is unlikely that ‘mere overlooking’ as the Court termed it, would constitute an actionable nuisance – though to what extent something can be considered ‘mere overlooking’, remains something of a mystery.
Developers may initially be concerned about the decision and its implications, however one aspect to consider in this regard is that the Court confirmed the test is whether the land is being used for its common and ordinary purpose, which the Tate Modern’s viewing platform was deemed to have failed. It remains a risk that developers will have to consider, though one would expect ‘usual’ developments to meet this test.
Finally, there is the question of remedy (injunction or damages) which is yet to be decided and will be determined by the High Court in due course. This is of course pending any private settlement the parties enter into prior to a decision being required.