The owners of flats which can be seen into from the Tate’s viewing gallery have been granted an appeal after the Supreme Court found visual intrusion into a home can be considered a private nuisance in some circumstances.

In Fearn and others v Board of Trustees of the Tate Gallery, Lord Leggatt, Lord Reed and Lord Lloyd-Jones today allowed the appeal while Lord Sales and Lord Kitchin gave a dissenting minority judgment. The claimants, owners of the glass-walled flats, seek an injunction requiring the art gallery to prevent visitors from viewing their homes from the platform, or as an alternative, an award of damages.

The case was dismissed by the High Court and later, for different reasons, by the Court of Appeal. In a 96-page judgment published more than a year after the hearing, the Supreme Court has now allowed the appeal.

In lead judgment, Lord Leggatt said: ‘I suspect that what lies behind the rejection of the claim by the courts below is a reluctance to decide that the private rights of a few wealthy property owners should prevent the general public from enjoying an unrestricted view of London and a major national museum from providing public access to such a view.’

An estimated 500,000 people visit the Tate’s viewing gallery each year. The flat owners argue that the Tate ‘actively invites’ the public to visit and ‘look out from that location in every direction, including at the claimants’ flats situated only 30-odd metres away.’ Leggatt said: ‘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.’

The Supreme Court found the trial judge made a ‘cluster of mistakes’ as he applied the wrong legal test when deciding ‘whether the Tate Modern, in operating the viewing gallery as it does, is making an unreasonable use of its land.’

Leggatt said: ‘Having asked himself the wrong question, the answer given by the judge was, unsurprisingly, that operating a viewing gallery is not an inherently unreasonable activity in the neighbourhood. Nowhere did the judge consider whether the operation of a viewing gallery is necessary for the common and ordinary use and occupation of the Tate’s land. Had he done so, he would have been bound to conclude that…the Tate was not using its land “in a common and ordinary way, but in an exceptional manner.”’

Leggatt agreed that the advantages to glassed design flats ‘come at a price in terms of privacy’ but ’the physical attributes of a building cannot themselves give rise to a claim or defence to a claim in nuisance.’

He added: ‘Inviting several hundred thousand visitors a year to look out at the view from your building cannot by any stretch of the imagination be regarded as a common or ordinary use of land. Equally, having thousands of people each day looking into the interior of your flat, often taking photographs (which are sometimes posted on social media) and occasionally using binoculars, cannot possibly be justified by the rule of give and take.

‘A flat owner who objects to this use of neighbouring land is not demanding of her neighbour any more than she must allow him to demand of her. She is not seeking any special or unequal treatment. She is asking only for her neighbour to show the same consideration towards her as he would expect her to show towards him.’

When discussing the Court of Appeal’s understanding of the word ‘overlooking’ Leggatt said: ‘To argue that this use of the defendant’s land cannot be a nuisance because “overlooking” (in the Court of Appeal’s sense) cannot be a nuisance is like arguing that, because ordinary household noise caused by neighbours does not constitute a nuisance, inviting a brass band to practise all day every day in my back garden cannot be an actionable nuisance.’

Leggatt said the lower courts were ‘influenced by what they perceived to be the public interest in the use made of the Tate’s viewing gallery.’ Although it was not wrong to take public interest into account, he said, ‘what is wrong is to treat it as relevant to the question of liability for nuisance rather than only, where liability is established, to the question of what remedy to grant.’

Leggatt referred the case back to the High Court to determine the appropriate remedy.

In a dissenting judgment, Lord Sales said he would have dismissed the appeal.

 

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