Law of Nuisance: the Supreme Court’s recent decision in Fearn & Others v Board of Trustees of the Tate Gallery [2023] UKSC 4
The long awaited judgment in Fearn v Tate Gallery [2023] UKSC 4 was handed down on 1 February 2023 providing a helpful restatement of the principles of private nuisance. In overturning the Court of Appeal’s decision, the findings were that a visual intrusion is capable of giving rise to liability in nuisance.
Background
The Tate Modern in London opened a new extension in 2016. The extension consisted of ten stories with its top floor having a viewing platform offering panoramic views of London. The Claimants own flats in a block of residential flats of similar height to the viewing platform. As those flats consisted mainly of glass it meant to that visitors to the Tate’s viewing platform could see directly into those flats. The Claimants sought an injunction preventing visitors to the Tate from looking into their flats from the viewing platform based on the common law of nuisance.
The High Court considered that whilst intrusive viewing from a neighbouring property could give rise to a claim in nuisance it did not give rise to a claim in liability in this case. The decision was then overturned by the Court of Appeal who found that ‘overlooking’ cannot constitute an actionable nuisance.
The Supreme Court’s decision
The decision reinstates the principles of private nuisance. In summary, a nuisance is a use of land which wrongfully interferes with the ordinary use and enjoyment of neighbouring land. To amount to a nuisance, the interference must be substantial, judged by the standards of the ordinary person.
The Supreme Court has overturned the Court of Appeal’s decision, finding that it was beyond doubt that the Tate’s viewing platform constitutes substantial interference with the ordinary use and enjoyment of the flats and that the Tate is liable in nuisance. The trial judge found that the Claimants’ flats are under near constant observation by visitors to the viewing platform. It had been estimated that some 500,000 to 600,000 visitors would use the viewing platform, taking photographs and posting on social media. The ordinary person would consider this level of intrusion to be a substantial interference with the ordinary use and enjoyment of their home. In contrast, members of the public using the platform to admire the view is not a common and ordinary use of the Tate’s land.
This decision is an important starting point for any consideration of the principles in potential nuisance cases.
If you wish to discuss any matters relating to this article or nuisance which may be affecting you then please contact Amanda Nudds on 01328 852804.
