Cases - Fearn and Others v Board of Trustees of the Tate Gallery

Record details

Name

Fearn and Others v Board of Trustees of the Tate Gallery

Date

[2023]

Citation

EWCA Civ 104

Keywords

building surveyor, right of light, nuisance, overlooking

Summary

Fearn and Others v Board of Trustees of the Tate Gallery, a decision from the UK Supreme Court delivered on 1 February 2023, came to a bold and unexpected decision on when ‘visual intrusion’ will be actionable under the law.

Overturning previous decisions in the High Court and the Court of Appeal, the Supreme Court found that the visual intrusion into a neighbouring block of flats resulting from a viewing platform at the Tate Modern Gallery (Tate) constituted a nuisance in common law.

In this case note, we explain the key findings of the Supreme Court in this decision and what this means for property developers, owners and affected neighbours.

Case overview

Fearn v Tate was a dispute between residents of luxury apartments/flats adjacent to the Tate in London and the Gallery itself. The dispute arose from a viewing platform on the Tate's new Blavatnik Building.

The claimants’ block of flats was constructed between 2006 and 2012. When the Tate extension was constructed in 2016, a top-floor viewing gallery was included, providing panoramic views over central London. The claimants’ flats have floor-to-ceiling panels, allowing those on the viewing platform to see directly into their flats.

The viewing platform enabled visitors to the Tate to overlook the residents' flats, resulting in claims from residents that this was an unreasonable interference with the enjoyment of their flats and, therefore, was actionable under the law as a nuisance.

A majority in the Supreme Court found, contrary to decisions in the lower courts, that this was a straightforward case of nuisance, and the residents were entitled to relief from the Court. The Court did not, however, decide on the appropriate remedy (such as an injunction on the use of the platform or damages) and sent the case back to the High Court for a determination on that matter.

Key findings

For reasons of brevity, we will focus on the majority decision delivered by Lord Leggat. The major findings were:

The definition of nuisance

The Supreme Court clarified the definition of nuisance as involving wrongful interference with the ordinary use and enjoyment of a neighbour’s land. There are two elements to this. First, the question is whether, objectively, there has been a substantial interference with the ordinary use and enjoyment of the land. It is not enough that the claimant is annoyed; it is required that the reasonable or ordinary person would be so affected.

Second, even where a substantial interference has occurred, was the defendant’s use a ‘common and ordinary use’ of that land. If so, there is no nuisance. It is no defence to a claim of nuisance, the Supreme Court found, that the use of the land is reasonable or benefits the public. Benefit to the public is only relevant to the decision as to what remedy is appropriate, not the existence of a nuisance.

A visual intrusion can be a nuisance

Taking into account the definition outlined above, the Court held that a visual intrusion can be an actionable nuisance. Furthermore, the viewing platform, in this case, created a nuisance. There are two aspects to the particular finding here. First, it was found at trial that the claimant’s flats were under constant observation from visitors; hundreds of thousands of individuals visited the platform each year. Many took photographs and posted them to social media. The Supreme Court found that a reasonable person would consider this a substantial interference with their ordinary use and enjoyment of their home. As the Supreme Court put it: ‘it is not difficult to imagine how oppressive living in such circumstances would feel for any ordinary person – much like being on display in a zoo’.

Second, inviting the public onto the viewing platform was not a ‘common and ordinary use’ of the land by Tate. The viewing platform and how it was being continuously used, including night events, was not a common and ordinary use of an art gallery building.

Errors in previous cases

The Supreme Court found that there had been several errors in the reasoning of the High Court trial Judge, which had led to the finding against the claimants.

The trial judge erred in asking whether the viewing platform was an ‘unreasonable’ use of the land when the test is whether it was ‘common and ordinary’.
The trial judge erred in finding it relevant that the claimants had chosen to live in flats with glass walls. This would have been relevant if Tate’s use of the land was ‘common and ordinary’, but it was an abnormal use.
The trial judge erred in saying it was reasonable to expect claimants to take mitigating steps such as putting up blinds. It was not the claimants' responsibility to mitigate against the defendant’s abnormal use of the land.

The Supreme Court also found that the Court of Appeal had erred in its reasoning.

The Court of Appeal had found that, while the trial judge had made significant errors, ‘mere overlooking’, as had occurred in this case, does not create liability for nuisance.

In supporting their conclusion, the Court of Appeal appealed to a line of cases that justifiably restricted the common law from constraining buildings and development in towns and cities.

The Court of Appeal referred to the fact that there is no general right of light in common law, except an easement after 20 years’ use, which satisfies the relevant conditions. Similarly, there is no general right to prevent someone from looking into a residence.

Furthermore, the Court of Appeal held that any restriction on ‘overlooking’ is properly the domain of the legislature and can be attended to through planning controls. The Court of Appeal held that, in substance, this case concerned an invasion of privacy rather than damage to an interest in property.

The Supreme Court disagreed that this was a case of ‘mere overlooking’. Rather, Tate had invited the public to peer into the claimants’ flats on an almost continuous and sustained basis. Binoculars, photos and postings on social media were all evidence of more than simply overlooking.

As observed above, disagreeing with both prior courts, the Supreme Court found that there can be – and was, in fact – a nuisance in this case due to the visual intrusion created by the viewing platform.

Consequences for developers and neighbours

This case may be thought to open up potential claims for affected parties in existing or future property developments.

However, it must be noted that the Supreme Court emphasised the unusual facts of this case, which will not apply to most glass-walled apartment buildings. It is likely to only be in exceptional cases that the property developer or owner will not be engaging in a ‘common and ordinary’ use of their land.

Nevertheless, there are some lessons we can take from this case:

Just as developers need to think carefully about potential objections to their planning applications and possible right of light easements, developers need to consider potential nuisance claims carefully. Careful consideration of any potential nuisance, whether from visual intrusion, glare, noise, or any other source, is required. Where a potential nuisance may exist, developers should engage with affected parties.
Parties adversely affected by a development should consider the broad conceptual bounds of nuisance identified by the Supreme Court and seek advice on whether they may have a claim for nuisance.