Partner Gurpreet Sanghera and Trainee Solicitor Charlie Edwards discuss the Supreme Court's decision that the Tate Modern's viewing deck is a nuisance in relation to the adjacent Neo Bankside luxury apartments, in Law360.
Gurpreet and Charlie's article was published in Law360 on 24 February 2023, and can be found here.
An Englishman’s home is his castle…
That was the message from the Supreme Court in Fearn -v-Tate. After ample judicial debate, the Supreme Court handed down its judgement on 1 February 2023, overturning the decisions of the High Court and Court of Appeal and held that visual intrusion, of the kind proved in this case, was capable of amounting to a private nuisance. The claimants are seeking an injunction against the gallery preventing visitors from being able to look directly into their apartments or alternatively an award of damages.
The case concerns an action brought by the owners of four luxury apartments in the Neo Bankside development, which is overlooked by, and adjacent to, the public viewing gallery part of a new extension that was added to Tate Modern in 2016. The gallery is a popular tourist attraction visited by an estimated 500,000 – 600,000 people per year, with an upper limit of 300 people at any one time. The claimants’ apartments have glass walls, allowing visitors of the museum to look directly into their living accommodation.
The tort of private nuisance applies when a person does something on their own land, which they are lawfully entitled to do, but results in the interference and enjoyment of neighbouring land.
The court must consider whether the defendant’s use of land has caused a substantial interference with the ordinary use of the claimant’s land. What constitutes a substantial interference is to be assessed objectively by the standards of an ordinary or average person in the claimant’s position. The courts will not entertain claims for minor annoyances, “the basis of such claims is not the physical invasion itself but the resulting interference with the utility or amenity value of the claimant’s land”. The courts have held “the interference with the use of the claimant’s land must exceed a minimum level of seriousness to justify the law’s intervention… Moreover, there is no requirement that theinterference must be caused by a physical invasion”.
At first instance, the trial Judge Mann J found that the proximity of the Tate’s viewing gallery to the claimants’ flats allowed more prurient Tate visitors to peer through the apartments’ windows and observe the interiors. While some simply looked inside, others went as far as to use binoculars to spy on the residents, while yet others took photographs of the rooms and posted them on social media.
Whilst he concluded that this amounted to a material intrusion into the privacy of the claimants’ living accommodation, he ruled that the intrusion does not amount to a nuisance. He held that the claimants had protective measures available to them such as the use of net curtains or blinds, noting that residents had willingly chosen to live in a building designed by the developers to be so revealing to the outside world, and so could not expect that the Tate should have a liability for nuisance caused. Describing their exposure as “self-induced”, he said that those living in the flats would have to tolerate the consequences resulting from the original design, namely that their privacy would likely be infringed by some gallery visitors unless the residents took their own measures to block the views into each window.
Court of Appeal
The Court of Appeal upheld Mann J’s decision but for different reasons. The Court of Appeal held that this was not a case about undue sensitivity and the Judge’s reasoning involved material errors of law.
By applying the established principles of the law of private nuisance, the correct approach would be to consider the impact of the viewing gallery on the amenity value of the flats, and that by application to the facts in this case, the claimants should succeed. Nevertheless, the Appeal was dismissed on the basis that there were valid reasons for not extending the law in this manner.
In a 3-2 majority judgement, the Supreme Court surprisingly overturned the previous decisions and ruled in favour of the flat owners, determining that it was a clear case of nuisance. The Court held that the Tate’s viewing platform was not a “normal” use of its land and the homeowners faced a “relentless intrusion” which interfered with the ordinary use and enjoyment of their properties.
Lord Justice George Leggatt said in his ruling that he could see why living in such circumstances would feel akin to living in a zoo, describing the living experience as “oppressive” to the average person residing in the flats.
Undoubtedly, developers may be concerned about the ramifications of this judgment on their own developments.
Many people face similar issues surrounding privacy on a daily basis, especially in towns and cities where there is a mixture of neighbouring commercial and residential property. The Supreme Court’s finding that visual intrusion can constitute an actionable form of private nuisance is significant, as it has the potential to open the floodgates for nuisance claims from owners of residential properties that are being overlooked. This judgment may well factor into plans for future commercial developments, and residential tenants may use this as a basis for applying for injunctions or even objecting to future commercial developments near their homes.
Notably, Lord Justice Leggatt said that asking the flat owners to try and remedy the situation themselves, for example by putting up curtains, unfairly placed the burden of responsibility for curtailing the nuisance on the victims.
Despite this, Lord Justice Leggatt attempted to narrow the scope of the decision by describing the viewing gallery as an exceptional use of the Tate’s land and explaining that the case concerned a very specific set of circumstances, with the level of intrusion being excessive. It is therefore unlikely to have a wide-ranging application. The success of future claims will likely depend heavily on the use of the land and whether that is classed as “abnormal” or not. Further, some may argue that a certain lack of privacy is to be expected due to the glass-walled design of the flats and their central location – which was the view of Lord Justice Mann in the initial High Court ruling in 2019.
Following the judgment, the case has been referred back to the High Court to determine the appropriate remedy and we await to hear what the court awards. In 2017, the flat owners applied for an injunction requiring the gallery to cordon off parts of the platform or to erect screening to prevent the public from peering into their homes. However, the Tate’s viewing gallery has been closed since the Covid-19 pandemic started in 2020. It may therefore simply be a case of determining the level of damages to be awarded to the flat owners. If the High Court orders an injunction, for example for partial closure of the viewing gallery, this could have significant ramifications for both the gallery and future nuisance claims on similar facts.
The representative for the flat owners said her clients would work with the gallery to reach a practical solution in which all parties’ interests were protected.