Fearn –v- Tate Modern judgment: Supreme Court confirms ‘visual intrusion’ constitutes a private nuisance
By Simon Burdett-Dixon
The Supreme Court has today extended the law by confirming that overlooking or ‘visual intrusion’ can give rise to a cause of action in private nuisance.
Private nuisance is where an owner (or their visitors, agents, contractors, etc.) behaves on or uses their own land in a way that causes harm to a neighbouring owner’s land, or their use and enjoyment of it.
In Fearn and others v Board of Trustees of the Tate Gallery  UKSC 4, the Supreme Court has to decide whether the viewing platform at the Tate Modern in London amounted to a private nuisance against a group of 4 leaseholders of a neighbouring block of flats. The block of flats benefitted from a form of internal balcony that had floor to ceiling glass walls, which are within the near and direct line of sight of the viewing platform. Some of the leaseholders had chosen to utilise their internal balcony areas for additional internal living space, and took issue with the significant overlooking they experienced from hundreds of thousands of visitors to the viewing platform each year (which included the use of binoculars, cameras and the regular posting of the same on social media).
At first instance, and on appeal in the Court of Appeal, the Courts found (for slightly different reasons) in favour of the Tate Modern, i.e. no nuisance. The Court of Appeal held that mere overlooking did not form the basis of a cause of action in nuisance. Both of the lower Courts found that the leaseholders had invited an enhanced sensitivity to overlooking upon themselves, by purchasing a flat with a form of balcony, and that many of them had utilised that area differently to what was intended in its design (and without taking steps to reduce the impact of overlooking, such as the erection of screening). The Courts indicated that those voluntary choices by the leaseholders involved them taking on a greater risk of overlooking, and that should not increase the likelihood of third party liability for nuisance.
Supreme Court Decision
In a 3-2 decision, the Supreme Court overturned the Court of Appeal, finding that there was no reason why visual intrusion (as it put it) could not amount to an actionable private nuisance. The Tate Modern’s use of the viewing platform in this way did exactly that, and was not a common or ordinary use of its land (being an art gallery). The ordinary person would see this level of intrusion as a substantial interference with the ordinary use and enjoyment of their home. It was no defence that the Tate Modern said its use of the land was reasonable or for the benefit of the public. The Court further explained that the reasoning in the lower Courts relating to the leaseholders’ failure to take steps to limit the nuisance was also wrong, on the basis that a victim should not suffer for failing to take steps to protect itself from an actionable nuisance (adopting the analogy that someone causing a noise nuisance could not rely on a defence that the injured party had failed to use ear plugs).
The Supreme Court was not asked to determine the appropriate remedy, which has been released back to the High Court for determination.
This decision opens up a new class of potential action in private nuisance, though it remains unclear where the line will be drawn on what amounts to an actionable or non-actionable private nuisance of visual intrusion. This was a rather extreme case, where the leaseholders were under near constant observation by visitors to the viewing platform, and the Tate Modern was not being used in what would be considered an ordinary way. It may therefore be unlikely that smaller scale situations, where looking out of land may be considered an ordinary use, will amount to an actionable nuisance, unless perhaps the extent of that intrusion is relatively extreme.
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