The Supreme Court has ruled that a viewing platform at the Tate Modern caused unreasonable interference with the owners’ enjoyment of luxury flats adjacent to the museum, says Christopher Clayton.
Background
The widely publicised case of Fearn and others v The Board of Trustees of the Tate Gallery [2023] UKSC 4involved the owners of four flats in the Neo Bankside development on the South Bank in London, which are located approximately 34 metres from the Tate.
The viewing platform opened in 2016, four years after the flats were completed, and provides 360-degree panoramic views of the city as well as a direct view into the living areas of the glass-fronted apartments.
The owners of the flats brought a claim against the Tate in nuisance due to an estimated 500,000 visitors a year looking into their homes from the platform, some of whom took photographs of the flats and their inhabitants and posted the images online. The owners contended that that was an unreasonable interference with their enjoyment of their flats. They also claimed that this infringed their right to respect for their private and family lives under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Furthermore, it was claimed that the Tate was in breach of section 6 of the Human Rights Act 1998, which provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
The claimants sought an injunction to prevent members of the public from observing their homes from parts of the platform or an award of damages.
In the first instance, the privacy claim under the 1998 Act failed because Tate was not exercising functions of a public nature, however, the trial Judge did recognise that there was a degree of intrusion which could, in principle, give rise to a claim in nuisance. The intrusion experienced by the claimants in this case did not amount to a nuisance as the use of the public viewing gallery is reasonable and the claimants are responsible for their own misfortune.
The claimants sought to appeal the decision in the Court of Appeal, which dismissed the appeal and held that “overlooking”, no matter how oppressive, cannot in law count as a nuisance. It was ruled that the claimants were not entitled to protection from overlooking, and this is not capable of giving rise to a cause of action in private nuisance.
The case was brought before the Supreme Court, which applied the principles of private nuisance and overturned the Court of Appeal’s decision, finding that the Tate is in fact liable in nuisance. The Judgement does not, however, set out a remedy. This was referred back to the High Court, suggesting it may involve either an injunction or damages paid to the claimants. The Tate may also have to implement measures, such as a screen, preventing their visitors from looking into the flats.
Commentary
One of the primary considerations to come out of this decision is whether this will open the floodgates to further potential claimants taking legal action against their neighbours for visual intrusion and seeking remedies by way of an injunction or damages.
Lord Leggatt, who gave the lead judgment, was clear, however, that this is a very distinct case, as the opening of the viewing platform was a very particular and exceptional use of the land. This means that parties cannot bring claims in nuisance simply because neighbours can see inside their buildings. In any event, it will be interesting to see whether this historic ruling will have any significant implications and bring a new aspect to nuisance disputes.
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