Fearn and others v Board of Trustees of the Tate Gallery

Private nuisance may arise from intense visual intrusion into a home. The tort is not confined to physical emanations or predefined categories of interference.

Liability depends on substantial interference with the ordinary use and enjoyment of the claimant’s land. An interference is generally excused where it results from the common and ordinary use of the defendant’s land, carried on with proper consideration for neighbours. A generally reasonable, unusual use is insufficient.

The claimant need not alter an ordinary use of the property, or adopt protective measures, to accommodate the defendant’s exceptional use. Public benefit does not exclude liability, although it may affect whether the remedy is an injunction or damages.

The appellants owned long-leasehold flats approximately 34 metres from a public viewing gallery at Tate Modern. Hundreds of thousands of people visited the gallery annually. Visitors could see into the flats’ glass-walled living areas, and many looked, photographed the interiors or posted images on social media.

Mann J held that visual intrusion could constitute nuisance but dismissed the claim because the gallery was a reasonable use, the flats were unusually sensitive and the occupants could install screening: [2019] EWHC 246 (Ch); [2019] Ch 369. The Court of Appeal identified errors in that reasoning but dismissed the appeal because overlooking was not actionable: [2020] EWCA Civ 104; [2020] Ch 621.

The central issues were whether intense visual intrusion can constitute private nuisance and whether the Tate’s operation of the gallery was actionable on the facts found.

1. Appeal allowed by a majority. Lord Leggatt, with whom Lord Reed and Lord Lloyd-Jones agreed, held that the Tate’s operation of the viewing gallery constituted private nuisance. The question of remedy was remitted to the High Court. Lord Sales, with whom Lord Kitchin agreed, dissented.

2. Private nuisance protects the utility and amenity value of land. It is not confined to physical invasion or closed categories of interference. Anything short of trespass which materially interferes with the enjoyment of rights in land is capable of constituting nuisance. Constant observation and photography from neighbouring land can therefore be actionable.

3. The governing inquiry is whether the defendant’s use has substantially interfered, judged objectively, with the ordinary use of the claimant’s land. The expression “unreasonable interference” states a legal conclusion rather than an independent, open-ended balancing test. An interference will ordinarily be excused where it results from acts necessary for the common and ordinary use of the defendant’s land and those acts are conveniently done, meaning with proper consideration for neighbours.

4. The ordinary domestic use of the flats was subjected to substantial intrusion. Operating a public viewing gallery visited by hundreds of thousands of people was a particular and exceptional use. It was not a common and ordinary use of the Tate’s land or an ordinary incident of operating an art museum. The rule of reciprocal give and take therefore did not excuse the interference.

5. The flats’ glass construction did not provide a defence. A building’s sensitivity may require its occupier to tolerate interference resulting from a neighbour’s ordinary use. It does not generally excuse substantial interference caused by an exceptional use. The law protects the utility of the land and buildings actually present, rather than a hypothetical building of conventional design. The majority left open whether extreme and unforeseeable abnormality of construction might exceptionally be relevant.

6. The claimants were not required to lower blinds, install net curtains or take comparable remedial measures. Requiring the victim to eliminate the effects of an exceptional use would contradict the reciprocity underlying nuisance. Ordinary overlooking arising from normal residential or commercial use remains something urban occupiers may have to tolerate.

7. The public benefit of the viewing gallery could not defeat liability. Public interest is relevant at the remedial stage, where it may support damages instead of an injunction. As remedies had not been argued or determined below, the appropriate injunction, remedial measures or damages had to be decided by the Chancery Division.

8. Lord Sales agreed that intense visual intrusion was capable of constituting nuisance but would have upheld Mann J’s factual assessment. In his view, objective reasonable reciprocity required a broader balance which could include the flats’ design, their use, the locality and reasonable self-help.

1. United Kingdom Supreme Court: By a majority, allowed the appeal, held the Tate liable in private nuisance and remitted the determination of remedy to the High Court: [2023] UKSC 4.
2. Court of Appeal: Dismissed the appeal. It held that the trial judge had materially erred but concluded that overlooking was not actionable in nuisance: [2020] EWCA Civ 104; [2020] Ch 621.
3. High Court, Chancery Division: Mann J dismissed the claim. He accepted that intrusive viewing could in principle constitute nuisance but held that liability was not established: [2019] EWHC 246 (Ch); [2019] Ch 369.