Living in a zoo – the Supreme Court’s decision in Fearn v Trustees of the Tate Gallery [2023] UKSC 4

March 23, 2023

by William Hanbury

A few yards from the Tate Modern lies the Neo-Bankside block. It contains glass fronted flats constructed not long before the gallery’s viewing platform (known as the Blatvanik Building) opened. The trial took place in 2019, shortly before coronavirus struck in 2020 ([2019] EWHC 246) and took an inordinately long time to get to the Supreme Court.

Mann J dismissed the flat-owners’ claims, pointing out that they knew what they were acquiring when they purchased glass-sided properties. They could lower the blinds or fit net curtains if necessary.

The Court of Appeal said the trial judge had been wrong in law but the flat-owners still could not succeed because overlooking was not a tort.

The Supreme Court disagreed. It returned to basic principles but applied them in a creative way to the facts of the case:

  • The basic purpose of the law of nuisance is to protect one’s enjoyment of land including the rights benefiting that land, such as easements. The interference may be tangible, such as incursion by knotweed to choose a frequent contemporary example,  or intangible, such as noise or smell, to choose an example which frequently arose in the nineteenth century but with modern planning law less frequently arises today.
  • Amenity value is compensated rather than personal discomfort (this would be a major article in its own right!).
  • Interference must be proved. The ordinary use of one’s land does not create a nuisance (see Tanner v London Borough of Southwark Council [2001] 1 AC 1- watching TV in one’s own flat, even though it is poorly insulated, does not constitute a nuisance.

Here, the defendants , the gallery owners, put on corporate events in the viewing platform but mainly it was used by free entrants to the  gallery enjoying views over this part of London.  On any view there was, and is, a significant public benefit to the gallery’s activities- one of the country’s major tourist attractions.

The trial judge was nevertheless  found to have been wrong to dismiss the claim. The question was not whether the  Tate Modern’s use of its land was unreasonable but whether it was  a “common or ordinary use”.

It was an abnormal use to invite several thousand people to a viewing platform knowing that they might peer into neighbours’ properties.

Overlooking was not enough to establish the tort of nuisance – inviting people for that purpose was!

Lord Sales, with whom Lord Kitchin agreed, dissented.  He attempted to apply well-established principles. The trial judge had been correct. The Tate Gallery had carried  on an ordinary use of its land. The purchasers of flats in the area had to take account of the locality. It is the very design of each flat,  permitting maximum light into each unit, which also allows the peering eyes of others!

To say the case is controversial would be an understatement. First, it is judicial  legislation of the highest order. One would expect a change to the law at this level to be a matter for Parliament or at least for the Law Commission to consider it first.

Secondly, those who have followed other recent decisions of the Supreme Court will detect that it is in a legislative mood. Guest v Guest late last year has certainly changed the recognised basis of disposing of proprietary estoppel claims and  a few years earlier Lord  Briggs  set the cat amongst the pigeons when he extended the law of easements in Regency Villas v Diamond Resorts [2018] UKSC 57.

Thirdly , although the court explicitly recognised the claim as common law nuisance, article 8 of the ECHR was part of the claimant’s pleaded case. The trial judge regarded article 8 as an unnecessary complication and so did the Supreme Court (see paragraph 113). However one would have thought that it might have been a  more flexible way of getting to the same result. A right of privacy has been applied in numerous contexts in media law – mainly to protect already well protected celebrities! The point about article 8 is that it is a qualified right and the Tate could have relied on its discharge of an important  public function in balancing its interests against those of the flat owners.

Fourthly, the case gives rise to significant practical implications. The parameters  of the law of nuisance will be very difficult to set in future and far from creating clarity the case is likely to create uncertainty therefore.

The landowner provided a service to the  public largely free of charge. Those who know the area know that it is exceptionally busy, with the south bank walkway attracting hundreds of thousands of visitors every day, nearby.  Surely those buying  flats in the area did not expect complete privacy? The case is likely to prove controversial for years to come therefore.