Nuisance: Supreme Court decision in claim for nuisance by flat owners against the Tate Modern

The Supreme Court has handed down its judgment in this long-running claim for nuisance by leasehold owners of flats opposite the Tate Modern in London in respect of the gallery’s public viewing area.

The background

In Fearne and others v Board of Trustees of the Tate Gallery [2023], long leasehold owners of flats in central London brought a claim for nuisance against the Tate Modern gallery, which was located directly opposite their properties. A public viewing gallery at the Tate offered views for visitors across London, but visitors were also able to see directly into the claimants’ flats. Visitors took photographs and occasionally used binoculars, and photographs of flats were posted onto social media.

Claiming that the viewing gallery was a nuisance which interfered with their enjoyment of their properties, and infringed their rights under Article 8 of the European Convention on Human Rights, the leaseholders sought an injunction preventing visitors from looking into their flats.

The leaseholders’ claim was dismissed in the High Court, and later by the Court of Appeal, finding that ‘overlooking’ could not constitute a nuisance in law. The claimants appealed to the Supreme Court.

Read more on the background to this case in our earlier summary

The decision

In a majority decision, the Supreme Court allowed the claimants’ appeal, finding that ‘overlooking’ constituted a nuisance and entitling the claimants to compensation.

Disagreeing with the Court of Appeal, the Supreme Court concluded that the law of nuisance did apply. The relevant positions of the parties – owners of premium, high-value properties, and visitors to a major national museum having access to unrestricted views of London – was a consideration for the Supreme Court, but only when assessing remedy, and whether an injunction should be granted, rather than the overall success of the claim.

The principles of private nuisance state that “a nuisance is a use of land which wrongfully interferes with the ordinary use and enjoyment of neighbouring land”. Interference must be substantial when judged by the standards of an ordinary person. “Common and ordinary use” of land would not be considered a nuisance, having regard to the general character of the local area.

A defence that land use was beneficial to the public, or simply that land use was reasonable, was insufficient. These were considerations when assessing remedy and damages, but did not deny the claimants any remedy whatsoever.

In applying these core principles, the Supreme Court considered whether the use of land in this case amounted to a nuisance. The viewing gallery was visited by hundreds of thousands of people over the course of a year, taking photographs of the claimants’ properties which were distributed online. The Court found that this activity did amount to a substantial interference with the claimants’ ordinary use and enjoyment of their homes.

The viewing platform was not found to be a common and ordinary use of the Tate’s land, resulting in an actionable nuisance to which the claimants were entitled to a remedy. The Supreme Court remitted the matter to the High Court for determination as to that remedy.

A number of arguments and earlier conclusions were dismissed by the Court. The High Court had erred in assessing whether the use of land by the Tate was “unreasonable”, and should instead have considered whether use was “common and ordinary”. Having determined that such use was abnormal and unexpected, the Tate could not argue that claimants could mitigate the nuisance themselves by erecting blinds or curtains, or that they had chosen to live in properties with large glass windows thereby exposing themselves to intrusion. It was not the burden of the claimants to avoid a nuisance arising from the abnormal use of neighbouring land.

Advice and action for landlords

This much-anticipated decision sets an important precedent in considering claims for nuisance. The Supreme Court determined that the appropriate test to apply is not whether use by a landowner could be considered “unreasonable”, but instead whether use is considered “common and ordinary” for the locality.

Even as a public art gallery of national significance, the Tate’s public viewing area over London was considered by the Court to be “abnormal and unexpected”.

The Supreme Court considered the extent of the visual intrusion encountered by the claimants in the context of an abnormal and unexpected use of land by the Tate. It was not the claimants’ responsibility to take measures to prevent nuisance caused by an abnormal and unexpected use, and the claimants were entitled to remedy.