1 February 2023

Supreme Court win for flat owners in Fearn v Tate

On 1 February 2023 the Supreme Court handed down its judgment in the ongoing nuisance claim between the residents of Neo Bankside and the Tate Gallery relating to the public viewing gallery situated in the Blavatnik Building at the Tate Modern.

Lord Leggatt, who gave the leading Judgment (with which Lord Reed and Lord Lloyd-Jones agreed) decided that the Tate’s use of the viewing gallery does give rise to liability to the residents under common law nuisance and that the case should be remitted to the High Court to determine the appropriate remedy. The Judgment, which runs to 168 pages re-asserts the principles of the law of nuisance and considers its application to the facts and the decisions of the Courts below.

Background

The viewing gallery is situated on the 10th floor of the Blavatnik Building and affords a 360-degree panoramic view of London to visitors of the Tate Gallery at no cost. Around 5 and ½ million people visit the Tate Gallery each year and of those, it was estimated that around 500,000-600,000 visit the viewing gallery with a limit of around 300 on the gallery at any time. The Claimants all own flats that are situated in a development opposite known as Neo Bankside. The interior of the flats can be viewed easily from the south side and south western corner of the viewing gallery.

The Courts below

The Judge at first instance found on the facts that a significant number of visitors displayed an interest in the interior of the flats either by peering, photographing, waving or using binoculars to view. He considered this to be a material intrusion into the privacy of their living accommodation using “privacy” in its every day sense. Despite stating that such intrusive viewing could, in principle, give rise to a claim in nuisance he concluded that the intrusion experienced in this case did not amount to a nuisance for two reasons. Firstly, the claimants had properties with glass walls and secondly, because they had failed to take remedial measures to protect their privacy.

The Court of Appeal found that this reasoning involved material errors of law and that, had the principles of nuisance been applied correctly, the residents’ claim should succeed. Nevertheless, they then went on to dismiss the appeal. Their reason was that overlooking, no matter how oppressive, cannot in law count as a nuisance.

Supreme Court Decision

Lord Leggatt considered that whilst the Court of Appeal was right to hold that the first instance Judge incorrectly applied the law, it was wrong to decide that the law of nuisance does not cover a case of this kind, which he considered to be a straight forward case of nuisance. The notion that visual intrusion cannot constitute a nuisance is not supported by precedent and indeed the relevant authorities positively support the opposite conclusion. He concluded that in applying the well settled legal tests, the claim ought to succeed. He suspected that what lay behind the rejection of the claim by the Courts below was “a reluctance to decide that the property 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.”

This decision is a robust re-assertion of the protection afforded by the common law to privacy in the home. As a result, there was no need to extend the common law to accommodate the right to privacy guaranteed by Article 8 of the ECHR.

Natasha Rees, Senior Partner and lead lawyer advising the Claimants, said “Our clients are both pleased and relieved that nearly six years after they began their claim the Supreme Court has now found in their favour. Lord Leggatt, giving the majority judgment, recognised how oppressive it can be to live “under constant observation from the Tate’s viewing gallery for much of the day, every day of the week…much like being on display in a zoo.” Our clients now look forward to working with the Tate as valued neighbours to find a practical solution which protects all of their interests.”

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