"The city is not a concrete jungle, it is a human zoo." – Desmond Morris
In a surprise decision in Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent)  UKSC 4 handed down on 1 February 2023, the Supreme Court decided 3-2 that visual intrusion can amount to an actionable nuisance.
"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."
The nature and extent of the viewing of the claimants’ flats goes far beyond anything that could reasonably be regarded as a necessary or natural consequence of the common and ordinary use and occupation of the Tate’s land.
The public viewing gallery on the top floor of the Blavatnik Building, which is part of the Tate Modern art museum on Bankside in London, is a popular visitor attraction. From the viewing gallery visitors can enjoy 360-degree panoramic views of London.
When the claim was brought by the owners of flats adjacent to the gallery, about 5.5 million people were visiting the Tate Modern each year and, of them, several hundred thousand (500,000-600,000 on one estimate) visited the viewing gallery, with a limit of 300 people at any one time.
Entry to the museum and the viewing gallery is free but the top floor of the Blavatnik Building is also available to hire for external events – an important source of revenue for Tate Modern.
The flats in question are glass-fronted apartments located on, respectively, the 13th, 18th, 19th and 21st floors of a block which is part of the nearby Neo Bankside residential and commercial development. The distance between the two buildings is about 34 metres and the flats on the 18th and 19th floors – which are the most affected – are at about the same height above ground level as the viewing gallery.
The claimants said that visitors to the viewing platform could look into these flats, and some posted photographs of these on social media.
The judgment handed down by the Supreme Court held the gallery liable in private nuisance.
The flat owners made claims in both privacy and private nuisance. The first limb of protecting against an invasion of privacy, a personal right, failed quickly. The Court of Appeal noted that there were other laws protecting privacy, such as harassment and stalking.
It is the responsibility of Parliament to determine whether additional laws are necessary to deal with privacy, rather than for the courts to extend the principle of private nuisance. Private nuisance in itself protects an interest in property, and this common law principle was sufficiently adequate to deal with this case.
Private nuisance occurs when an act on an owner's land materially interferes with the neighbouring landowner's enjoyment of rights over their land. This interference must cause an objectively substantial interference with the neighbour's ordinary use of their land to constitute private nuisance. Thus resulting in the balancing of landowners' rights to each enjoy their land.
The trial court and Court of Appeal both ruled against the five flat owners.
However, the Supreme Court identified three legal errors in the trial court's judgment.
First, the legal test on reasonableness should have been whether operating a viewing platform was necessary for the common and ordinary use and occupation of a gallery, rather than whether it was unreasonable to operate a viewing platform as part of the gallery's use of their land. It was not a common and ordinary use.
"Inviting members of the public to look out from a viewing gallery is manifestly a very particular and exceptional use of land. It cannot even be said to be a necessary or ordinary incident of operating an art museum."
Second, the trial court concluded that the flat owner's exposure was self-induced due to the glass-walled design of the façade. However, despite this design increasing the flat owners' susceptibility to visual intrusion, this did not change principles of reciprocal rights. Since a viewing platform was an exceptional use of the gallery's land, beyond common and ordinary use, the gallery did not act with reasonable consideration for their neighbours.
The third error was holding the flat owners responsible for avoiding the intrusion. While the flat owners could have reduced the intrusion by putting up blinds or curtains, this was not a defence to claims in nuisance, and, as Lord Leggatt noted, wrongly places the responsibility of avoiding interference on victims.
The Court of Appeal ruled that visual intrusion could not amount to private nuisance. The Supreme Court found no authority to support the position that visual interference for a prolonged period, and of a sufficient intensity, could not amount to nuisance.
Thus, being photographed would result in a greater interference, compared to observing these flats with the naked eye, exacerbated by the sharing of these photographs on social media.
Both courts could have been influenced by the perceived public interest of having a viewing platform in the gallery, balancing this against the interests of the five flat owners.
While the Supreme Court agreed that public interest was a consideration, it should only be considered once liability for nuisance has been established to determine the appropriate remedy. It should not be a consideration when determining whether use was reasonable.
It is unlikely that all cases of visual intrusion from overlooking would amount to private nuisance because of the test applied by the Supreme Court, namely whether use of the land was for a common and ordinary use.
Here, a viewing gallery in an art gallery was not common and ordinary, however when applied to commercial and residential developments, it is more probable that a viewing gallery would constitute common and ordinary use.
The Supreme Court clarified that the circumstances in which this law will apply is rare, but did highlight issues surrounding the sharing of pictures taken on smartphones on social media and CCTV.
"Inviting several hundred thousand visitors a year to look out at the view from your building cannot by any stretch of the imagination be regarded as a common or ordinary use of land. Equally, having thousands of people each day looking into the interior of your flat, often taking photographs (which are sometimes posted on social media) and occasionally using binoculars, cannot possibly be justified by the rule of give and take."
The viewing platform is now closed.
The Supreme Court did not award a remedy, if the parties cannot reach an agreement on the remedy a further hearing will be required in the High Court to decide a remedy. Remedies may include an injunction to prevent or restrict use of the viewing platform or damages.
Points to take away:
- The categories of nuisance are unlimited.
- Mere overlooking will not amount to a nuisance, this was not a case about overlooking but a case about extreme visual intrusion.
- It will be a rare case where overlooking will amount to visual intrusion and each case will be decided on its facts.
- Developers used to dealing with issues relating to right to light should now add potential nuisance through visual intrusion to their considerations when planning a scheme.
- When selling adjoining land, sellers should consider whether buyers should agree not to bring claims for nuisance caused by visual intrusion.
It may be in the future that this case will be distinguished on its very particular facts, but we will have to wait and see.
This article was authored by real estate partner Merle Wray and paralegal Natalie Darwis.
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