Visual intrusion is an actionable nuisance

In 1 February 2023, the Supreme Court handed down judgment in Fearn and Others v Board of Trustees of the Tate Gallery. It decided by a majority of three to two that visual intrusion is actionable under the common law of nuisance. Lord Leggatt gave the lead judgment, with whom Lord Reed and Lord Lloyd-Jones agreed, Lord Sales and Lord Kitchin dissenting. This judgment is an important analysis of how competing uses of land in an ever more crowded world might be managed, and if and when legal rights are engaged.

Background

In June 2016, a public viewing gallery was opened on the top floor of a new extension to the Tate Modern Gallery in London. The appellants’ flats are located in the nearby Neo Bankside development. The appellants were already occupying their flats when the viewing gallery was opened. The walls of the appellants’ flats are constructed mainly of glass. As a matter of fact, the first instance judge held that the living areas of the appellants’ flats was under constant observation from visitors to the Tate’s viewing gallery for most of the day, every day of the week. Visitors frequently take photos of the interiors of the appellants’ flats and post them on social media. Lord Leggatt states in his judgment that it is ‘much like being on display in a zoo’.

Passage through the lower courts

The appellants sought an injunction in February 2017 requiring the Tate Gallery to prevent the public from viewing their flats from the viewing gallery, or alternatively an award of damages. Their claim was based upon the common law of private nuisance (an alternative ‘privacy’ claim was not successful and not appealed).

At trial, Mr Justice Mann concluded that the intrusion experienced by the appellants did not amount to a nuisance. The judge’s reasoning was that the Tate’s use of their building as a public viewing gallery was reasonable and that the appellants are ‘responsible for their own misfortune’, because their flats have glass walls, and also because they could take remedial measures to protect their own privacy, such as lowering their blinds or installing net curtains.

Upon appeal, the Court of Appeal found ‘material errors of law’ in the judge’s reasoning, but nevertheless dismissed the appeal on that ground that ‘“overlooking”, no matter how oppressive, cannot in law count as a nuisance’.

Supreme Court judgment

The majority in the Supreme Court found for the appellants, identifying three particular errors of law made by the trial judge. 

Underpinning the majority’s decision was a reliance on the ‘rule of give and take’ as between neighbours, and the importance of whether the use complained of was ‘a common and ordinary use’. See the judgment of Bramwell J in the leading case of Bamford v Turnley (1862) 3 B & S 66.

Lord Leggatt held that the trial judge applied the wrong legal test, by asking whether the nature of the Tate’s use of its land is ‘reasonable’, instead of asking whether it is ‘a common and ordinary use’. Lord Leggatt found that use as a viewing gallery was not ‘common and ordinary’ and ‘cause[d] a substantial interference with the ordinary use and enjoyment of the [appellants’] properties’.

Second, Lord Leggatt stated that the trial judge was wrong to conclude that the appellants have to put up with the nuisance because their glass-walled flats are ‘abnormally sensitive’ properties. Lord Leggatt held that there was no legal precedent for that argument, and that even if the flats could have been designed in a different (less sensitive) way, the Tate could not rely upon that defence because the Tate’s own use is ‘exceptional’.

Third, Lord Leggatt disagreed with the trial judge that it is reasonable to expect the appellants to take protective measures to avoid being seen from the viewing gallery.

The Supreme Court then overturned the Court of Appeal’s decision that the law of nuisance does not prevent overlooking. Lord Leggatt stated ‘the notion that visual intrusion cannot constitute a nuisance is not supported by precedent’.

The Supreme Court opined that the lower courts may have dismissed the claim because they were influenced by the public interest in the use made of the Tate’s viewing gallery. Lord Leggatt states that the public interest is not relevant to the question of liability, and only to ‘the question of what remedy to grant’.

The Supreme Court held that the Tate’s use of the viewing gallery gives rise to liability to the appellants under the common law of nuisance. The case has been remitted to the High Court to determine the appropriate remedy.

Wider Implications for real estate market

This case clarifies that the common law of nuisance can apply to visual intrusion, but that ‘common and ordinary’ use of properties should not be vulnerable to such claims.

The Supreme Court went to some length to emphasise that it considered the creation of a viewing gallery as an extreme example of visual intrusion, but there are likely to be areas for future uncertainty in real estate development (some of which were expressly noted by the Supreme Court minority), especially in crowded urban areas. The Supreme Court’s decision suggests that anything which is not ‘common and ordinary’ might be open to challenge, possibly including:

• The relevance of security cameras as an element of ‘visual intrusion’;
• Balconies in general; and
• External areas such as hotel roof top bars.

The case is a reminder that it is not a defence to a claim in nuisance that the injured party ‘came to’ an already existing state of affairs (as the Supreme Court had reiterated in Lawrence v Fen Tigers Ltd [2014] UKSC 13).

Paul Greatholder is a partner and Jodie Green an associate in the property and housing litigation team at Russell-Cooke