The court held Tate liable in nuisance to the owners of flats with glass walls situated 34 metres from the gallery’s ten-storey Blavatnik Building extension, in Fearn & Ors v Board of Trustees of the Tate Gallery [2023] UKSC 4.
The extension, opened in 2016, includes a viewing platform from where thousands of visitors can see directly into the luxury multi-million-pound flats, watch the residents and take photographs, unless the residents close their curtains. The claimants, four flat owners, sought an injunction or, alternatively, an award of damages.
The court allowed the appeal by a 3-2 majority and remitted the case to the High Court to decide the remedy. It found nuisance comprised ‘substantial’ interference caused by the use of land that was not ‘ordinary’, and that the viewing platform was not an ordinary use of Tate’s land, even in the context of a central London art museum.
Lords Sales and Kitchin, dissenting, agreed with the majority that visual intrusion could create a private nuisance but found the trial judge was entitled to find the use of the flat owners’ land was other than ‘ordinary’, and it was possible for them to take normal screening measures to limit the effect of the intrusion.
Claire Lamkin, real estate partner, Kingsley Napley, said: ‘The judges emphasised the rare circumstances in this case.
‘However, it will no doubt precipitate a wave of copycat cases where people feel a property development near them is highly intrusive. And to that extent builders, architects, developers, town planners and policy makers will need to check their plans carefully from now on to minimise the risk of future similar litigation.’
Thomas Freeman, senior associate at Irwin Mitchell, said: ‘The case is important because the Supreme Court has re-stated the law of nuisance.
‘In the longer term, it is the question of “ordinary use” which is likely to generate satellite litigation. It is difficult to assess ordinary use by reference to locality in highly developed mixed areas, or where new uses are to be introduced to an area or are developed incrementally over time.’
The High Court previously held Tate’s use of its land was reasonable, the flats were exceptionally sensitive due to their glass walls and the owners could shut their blinds or draw their curtains. The claim was also dismissed at the Court of Appeal, which found ‘mere overlooking’ was not nuisance.
Laura Odlind, real estate partner at Mishcon de Reya, said the Supreme Court ruling could potentially have an impact on the use of security cameras positioned to overlook part of a neighbouring property.
Commenting on the claimants’ decision to base their case on nuisance rather than privacy, Edward Machin, senior lawyer in Ropes & Gray, said it was a ‘refreshing approach’ and ‘a good reminder that other legal arguments are available and may be better suited’.
