Tate Gallery loses landmark Supreme Court nuisance case

Published on 02.05.23
Published on 02.05.23

The much-anticipated Supreme Court decision in Fearn & Others v Tate Gallery found that a visual intrusion can amount to a nuisance. In this article, Ahmed Jasem, a trainee in the property department, examines the case and the potential implications of the court’s decision.

Facts of the case

The case was brought by a group of tenants living in apartments across from the Tate Modern art gallery on the South Bank in London. It centres around a viewing platform built as part of the Tate Modern’s extension in 2016, which allowed visitors to see into the homes of the residents.

The tenants claimed the gallery’s viewing platform, which provided panoramic views of the city, caused a nuisance by invading their privacy. From certain angles, the platform allowed visitors to look directly into the apartments. The tenants argued that they were constantly being watched and photographed by tourists, causing them to feel uncomfortable and anxious. This affected their right to the quiet enjoyment of their properties. The Tate Gallery maintained that the platform was an important feature of the museum’s public access policy.

High Court decision

At the initial hearing, the High Court ruled in favour of the tenants. The court held that the viewing platform constituted a nuisance and ordered the Tate Gallery to erect a screen blocking the view from the platform into the apartments.

Court of Appeal

The Tate Gallery appealed to the Court of Appeal. The court dismissed the appeal on the basis that the intrusion is greater than that of adjacent commercial or residential premises. The court said these types of premises would not give rise to the same level of interest in the apartments as a viewing gallery, whose sole purpose is to view.

Supreme Court

This decision was further appealed to the Supreme Court. The court sided with the residents in a 3 to 2 majority decision, ruling that the viewing platform did indeed constitute a nuisance. The court held that the platform “unreasonably interfered” with the residents’ use and enjoyment of their properties. It said the Tate Gallery had not taken sufficient steps to mitigate the platform’s impact on the surrounding area.

Lord Leggatt said in his judgment:  “Fundamental to the common law of private nuisance is the priority accorded to the general and ordinary use of land over more particular and uncommon uses.”

He continued: “The nature and extent of the viewing of the claimants’ flats goes far beyond anything that could reasonably be regarded as a necessary or natural consequence of the common and ordinary use and occupation of the Tate’s land.”

Conclusion

Fearn & Others v Tate Gallery highlights the potential conflicts that may arise when a person’s use of their property interferes with another’s enjoyment.

Following the court’s ruling, the Tate Gallery erected a screen to block the view from the platform.

The case is a reminder of the need for developers to be mindful of the impact of their developments on others. It is a cautionary tale for all stakeholders in construction projects, including developers, local council, planners and architects to take appropriate steps to minimise any negative effects on surrounding property owners and the local community.

If you require further information on this article, please contact Ahmed Jasem at [email protected].

Disclaimer: The above is merely general guidance and should not be relied on as formal advice. We suggest you take professional advice before taking any action in relation to the issues discussed above.