Insights

Andrew Robins

Published 19 April 2023
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Overlooking Can Be a Public Nuisance

The case of Fearn v Tate Gallery was always going to attract media attention and the recent judgement of the Supreme Court was both controversial and has wide implications in respect of public nuisance claims.

The decision overturned both the first instance decision and the Court of Appeal decision and held that the Tate Modern’s viewing platform caused a nuisance to the adjacent flat owners.

The facts

In 2016, the Tate Modern art gallery opened a public viewing gallery enabling 360 degree views of London. It attracts between 500,000 and 600,000 visitors a year. The claimants owned block of flats (built between 2006 and 2012) overlooked by the art gallery and the flats (which were constructed before the viewing platform) had wall-to-ceiling windows. Visitors to the viewing platform could see directly into the claimants’ living areas.

The flat owners brought a claim in nuisance and sought an injunction requiring the Tate Modern to screen off part of the platform, so it was no longer possible to look into their homes. In turn, the Tate Modern argued that the platform was a public utility and that preventative measures by the flat owners could reduce the interference.

Decision

The Supreme Court held that nuisance can be caused by any means (there is no limit to what can constitute a nuisance) and ‘intrusive viewing’ is capable of being an actionable interference in private nuisance. The oppressive effect of the viewing on the occupiers’ privacy caused a substantial interference with the claimants’ ordinary use and enjoyment of their property.

The Supreme Court also held that the correct test in respect of the defendant’s use was whether it was common and ordinary. In this case, the Supreme Court held that the defendant’s use of the land was unusual and exceptional, and the viewing gallery was not necessary for the ordinary use of the art gallery. The existence of the glass walls did not change the fact that the defendant’s use of their land was not ordinary or common and public utility is not a defence to a claim of nuisance. Its only relevance is when considering what remedy to grant.

The judgment also found that the trial judge was incorrect to find the claimant’s ability to take remedial steps relevant to whether the use was reasonable. The case was remitted to the High Court to decide the issue of the appropriate remedy.

Comment

Although the Supreme Court recognised that anyone should be free to build on land as they choose, the decision potentially has significant implications for developers, planning authorities and affected neighbours. There is some comfort to be taken from the test that the court applied, namely whether the land was being used for a common and ordinary use which test, the Tate Modern failed. Normal residential and commercial developments are less likely to fail this test.

There also remains the possibility that parliament will intervene and create new legislation relating to public overlooking and public nuisance. So as always, it’s a question of watch this space and keep in touch.

For more information or to discuss the implications for you, please get in touch.

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