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Nuisance: Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent) [2023] UKSC 4 On appeal from: [2020] EWCA Civ 104

10 February 2023

This case concerns a complaint from the occupiers of a residential building known as 'Neo Bankside' (on the south bank of the Thames, on Holland Street adjacent to Tate Modern's Blavatnik Building.

The complaint concerned the use of a viewing platform on the Blavatnik Building by the visitors to the Tate and the extent to which such use constituted a nuisance to the homeowners. The case has been the subject of considerable media scrutiny recently.

Neo Bankside is a modern complex of three residential towers and comprising of 217 apartments, constructed with glass curtain walling. The developer's marketing website boasts of 'unparalleled views towards The City and St Paul's Cathedral'. The apartments are very much of the modern 'glass box' sort requiring blinds and curtains to ensure privacy and mitigate solar gain.

The Blavatnik Building is a modern brick extension to the famous former power station housing Tate Modern. It is a tall, angular, building akin to a modern interpretation of a fortified tower house with horizontal slit windows (ironically affording much interior privacy) and a long viewing platform on the south side of the 10th floor. The viewing platform was accessible by visitors.

The viewing platform is a popular feature and was visited by several hundred thousand people every year. It affords extensive views of the city and surrounding buildings, both near and far.  Notably, the platform allows direct views into the apartments of Neo Bankside, which are around 30 metres away. Such views are not uncommon across London, and indeed are simple fact of life for many people around the world living in densely built urban environments where space is at a premium.

The owners of four flats in Block C of Neo Bankside objected to the scrutiny from the visitors to Tate Modern and sought a court injunction requiring Tate to prevent public access to part of the viewing platform, or alternatively damages.  They argued that the platform unreasonably interfered with their enjoyment of the flats and constituted a nuisance, both in common law and under s.6 of the Human Rights Act 1998 and also alleged that it infringed their privacy rights under Article 8 of the European Convention for the protection of Human Rights and Fundamental Freedoms.

In the first instance the claimants were not successful with any of these arguments, but were given permission to appeal to the Court of Appeal in respect of the common law nuisance claim where they were once again unsuccessful. The Court of Appeal also found in favour of the Tate, though they deployed different legal reasoning. The matter was then referred to the Supreme Court in 2021 and the judgement was issued on 1 February 2023.

The Supreme Court found in favour of the claimants (by a majority of three to two).

It held that the trial judge had applied the wrong test as to the use of the viewing platform – the correct test was not whether or not the use was 'unreasonable' but in fact whether or not 'it was common and ordinary'. Where such a use was abnormal and unexpected then it is not possible to argue that the claimant would not have suffered a nuisance if their property had been of different design or construction. It also held that the trial judge was wrong to hold that it was reasonable to expect the claimants to take measures to preserve their own privacy – such as blinds or net curtains. This wrongly put the onus on the homeowners to mitigate the consequences of the defendant's abnormal use. 

It held that the Court of Appeal had erred because it failed to distinguish this case from ordinary 'overlooking' – for example, by occupiers of other neighbouring buildings. In this case the visual intrusion was constant and pervasive and this gave rise to a nuisance.

The Supreme Court has now referred this case back to the court of first instance to determine the remedy. It is possible that the Tate will be directed to erect screening or prevent public access to all or some part of the viewing platform.  More cynical onlookers may be hoping for a nominal damages award! Indeed based purely on 'judicial votes' the claimant has been lucky – six out of the total of nine judges who have heard this matter disagreed with the claimants, but the 'right' three have found in their favour!

The judgement contains a useful overview of the key concepts of common law nuisance. This is an ancient legal concept with roots dating back to the middle ages. Common law is not codified in statute but is instead formed of many colourful judicial decisions forming precedent for subsequent decisions.  A nuisance is a use of land which interferes wrongfully with the ordinary use and enjoyment of neighbouring land. The interference must be substantial as judged by the standards of an ordinary person. There will be no liability if it is doing no more than making common and ordinary use of the land, but such use is to be judged by the character of the locality. Arguments of reasonableness and public benefit will not defeat such a claim – but may justify a different remedy such as damages.

This case appears to pose a significant issue with broad public interest.  Permitting owners of flats in the middle of one of the world's most popular tourist cities to object to being overlooked by the general public may make London a less interesting place. This case poses a potential threat to urban land use and development.

Taken at face value, a residential property owner may now object to the use of neighbouring property which results in them being overlooked by the general public, even if the residential property is a subsequent development.  Obviously much depends on the circumstances of each case but this creates a potentially significant risk for developers and landowners with property which is open to the public. Hotels, bars, restaurants and theatres with outdoor public terraces, or potentially with enclosed space from which patrons regularly enjoy the view, may be exposed to nuisance complaints from nearby residents simply because of the view afforded into the residents' property. The question of whether or not such a use is 'abnormal' would need to be addressed on a case by case basis – this is a nuanced issue. The case of the Tate viewing platform was an exceptional one. It seems entirely possible a different outcome would be reached with a less intensively utilised facility.

Of course, litigation is not cheap and further nuisance cases of this nature will likely be brought by those with the financial and legal backing required to do so, potentially leading to a rash of these cases in affluent neighbourhoods. That said this case also has potentially totemic value for those who wish to merely threaten litigation.

The simple fact is that most human beings like the view from the top – be it a hill, cliff, church tower – and it is not unusual to be offered the facility to reach a high point to outlook – many public and private buildings include such provision. The Blavatnik Building should be seen in this context and indeed the Tate Modern, whilst privately owned, could be broadly categorised as a de-facto part of the wider public realm. Many people visit merely to look at, and out of, the impressive Tate buildings (as opposed to the art inside). Some may well disagree with the Supreme Court's view that such use is 'abnormal' in the setting of the wider London cityscape.

It will be interesting to see how the behaviour of occupiers and landowners (particularly developers) changes in response to this judgement. For example it may be possible in some cases to enter into covenants whereby particular uses and indeed overlooking is explicitly authorised and agreed between landowners thus precluding future nuisance claims in respect of those uses. Such arrangements would require careful co-ordination. In some cases such arrangements might be tagged onto rights to light agreements: however in a complex cityscape it may be difficult to pin down all prospective nuisance claims.

To find out more about the points raised in this article please contact Damian Fleming or Jonathan Smith.

Further Reading