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A warning for developers - The Tate Modern viewing platform is a nuisance, Supreme Court rules

A warning for developers - The Tate Modern viewing platform is a nuisance, the Supreme Court rules

On 1 February 2023, the Supreme Court extended the English law, ruling that ‘visual intrusion’ from a neighbouring property may form the basis of a claim under the tort of private nuisance in the case of Fearn and Others v Board of Trustees of the Tate Gallery.

The Facts of the Case

The Tate Modern constructed the viewing platform in 2016 on its top floor, attracting thousands of visitors each year to observe the views over the city of London. However, the platform also provided views directly into the living spaces of the claimants’ flats, which were built a few years prior to the platform and designed with floor to ceiling glass panels, allowing people to take pictures of the resident’s interiors. For this reason, Lord Leggatt of the Supreme Court likened the claimants’ experience to ‘being on display in a zoo’.

In 2017, the flat owners brought a claim under the common law of private nuisance, whilst also pursuing an injunction requiring the Tate Modern to close the relevant part of the platform. Whilst the High Court concluded that private nuisance could extend to cases of overlooking, they said it could not form the basis of a claim against the Tate Modern because the appellants had chosen to live in a building with high glass ceilings, so their exposure to viewing was self-induced.

The flat owners subsequently appealed to the Court of Appeal – they affirmed the High Court’s decision to dismiss the claim, but not for the same reasons. Unlike the High Court, they concluded that the tort of private nuisance does not extend to overlooking – it was for Parliament to formulate any relevant laws.

The Supreme Court has since overturned the Court of Appeal’s decision, finding that the Tate Modern is in fact liable in private nuisance.

The Supreme Court’s Decision

Private nuisance is a branch of law which provides remedies where there has been a significant detriment to the use or enjoyment of a person’s property. For the claim to succeed, it had to be shown that the use of the viewing gallery amounted to a substantial interference with the ordinary use of the claimants’ properties.

Unsurprisingly, the Supreme Court concluded that the viewing platform amounted to a substantial interference with the ordinary use and enjoyment of the flats, a significant factor being the number of spectators and photographs of the interiors of the flats which were posted to social media. Another important test considered by the Court was whether the Tate Modern’s viewing platform was necessary for the ordinary use of the art gallery. On this point, the Court found that the viewing platform promoted an ‘exceptional’ rather than ‘ordinary’ use of an art gallery, concluding that the Tate Modern’s viewing platform was unreasonable and therefore liable under private nuisance.

The case has now returned to the High Court to determine a solution for the claimants. If no agreement is found, the viewing gallery may be forced to closed permanently.

Why is this relevant?

This is the first time that the law has recognised visual intrusion as amounting to the tort of private nuisance, increasing the risk of claims by adjoining landowners who are overlooked.

However, it is rare for visual intrusion to be of a sufficient duration and intensity to be actionable – the Supreme Court recognised that cases in which the new law would be applied would be rare. This does not mean developers can ignore the potential risk posed – the Supreme Court’s assessment of whether a nuisance was caused was not affected by the flats’ location (next to a tourist attraction), but instead whether the properties were used in their usual way. Whilst this was a rare situation, the question as to whether any premises could be impacted by visual intrusion was ultimately left open.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.

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