Fearn and others v Board of Trustees of the Tate Gallery

The Supreme Court allowed the appellants' appeal and held that the Tate's operation of a public viewing gallery, which invited thousands of visitors to look into neighbouring flats and enabled extensive photographing of their interiors, gave rise to liability in private nuisance. The court reiterated the core principles of private nuisance: it protects the use and enjoyment of land, the test is objective and rooted in the principle of reciprocity or "give and take" as explained in Bamford v Turnley and later authorities, and there is no conceptual bar to nuisance arising from visual intrusion. The Court found that the trial judge applied an incorrect overall "reasonableness" test and that the Court of Appeal was wrong to treat "overlooking" as inherently outside the tort. The Supreme Court held that (i) substantial and continuous visual intrusion can constitute an actionable interference with the amenity value of land; (ii) a claimant's choice of building design or sensitivity does not, as a general rule, defeat a valid nuisance claim; and (iii) it is not a defence to say that claimants could reasonably have taken protective measures (eg blinds or net curtains) where the defendant makes an exceptional use of its land. The case was remitted to the High Court for determination of remedy.

This litigation concerned flats in Neo Bankside which face the southern walkway of the top floor viewing gallery of the Tate Modern (the Blavatnik Building). The claimants complained that thousands of visitors a year peer into and photograph their living accommodation, causing a material intrusion into the amenity and privacy of their homes. They sought an injunction restraining the Tate from allowing access to the relevant parts of the walkway or, alternatively, damages.

Procedural history:

• First instance: Chancery Division, Mann J ([2019] Ch 369) — the judge found substantial intrusive viewing but dismissed the nuisance claim on the ground that the Tate's use was "reasonable" and the claimants had made themselves sensitive by choice of design and could take protective measures.
• Court of Appeal: [2020] EWCA Civ 104 — the court found errors in the trial judge's reasoning but held that "overlooking" cannot, as a matter of law, give rise to private nuisance and dismissed the appeal.
• Supreme Court: [2023] UKSC 4 — the appeal was allowed and the matter remitted on remedy.

Issues framed:

1. Whether the common law of private nuisance can, in principle, cover persistent and intrusive visual observation and photography from a neighbouring property;
2. If it can, whether on the facts found at trial the Tate was liable; and
3. What remedies are appropriate in the light of competing private and public interests.

Court’s reasoning: The Supreme Court (majority) reiterated established principles: private nuisance is a tort to land protecting the utility and amenity value of land; the test is objective; the categories of nuisance are not closed; and the "give and take" principle (reasonable user) governs conflict between neighbouring landowners. Applying those principles to the trial judge’s factual findings, the court concluded that the continuous and extensive viewing and photographing of the claimants' living rooms by thousands of visitors materially interfered with the ordinary use and enjoyment of the flats and therefore constituted a nuisance. The court rejected two principal defences relied upon below: (a) that "overlooking" is as a matter of law incapable of being a nuisance; and (b) that the claimants' own choice of a largely glazed design or their ability to install screening defeats liability. The Supreme Court accepted that public interest considerations are relevant but only at the remedies stage; accordingly it remitted the case to the High Court to determine whether an injunction, damages or other measures are appropriate.

Appeal allowed. The Supreme Court held that private nuisance protects substantial interference with the use and amenity value of land and that persistent and intrusive visual observation and photography from a neighbouring property can amount to nuisance. The trial judge erred in applying an overall "reasonableness" test which downplayed the established principle of reciprocity ("give and take") and in treating the claimants' choice of a glazed design and availability of protective measures as decisive defences. The Court of Appeal erred in holding that "overlooking" can never be a nuisance. The Court remitted the issue of remedy to the High Court.

First instance: Chancery Division, Mann J, [2019] Ch 369 (trial). Appeal: Court of Appeal, [2020] EWCA Civ 104 (appeal dismissed). Final appeal: Supreme Court, [2023] UKSC 4 (appeal allowed; remit on remedy).