An unexpected Supreme Court win for flat owners in Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent) [2023] UKSC 4


In 2016, London’s Tate Modern opened its renowned public viewing platform in the Blavatnik Building, with a 360-degree panoramic view of central London. The problem? The view included a direct line straight into the living areas of a block of flats opposite, which was constructed with impressive floor-to ceiling windows. Users of the viewing platform were able to look at, take photos of, and view the residents in their flats.

The flat owners claimed that the use of the viewing platform in this way was a nuisance and sought an injunction requiring the Tate to prevent members of the public from viewing their flats from certain areas of the viewing platform.

Initial Decision

In the High Court, the trial judge rejected the claim for an injunction on the basis that the use of the viewing platform was, in his view, reasonable. In addition, he found that the flat owners had failed to mitigate the adverse effects of the apparent loss of privacy by lowering their blinds or hanging net curtains. The residents took the matter to the Court of Appeal.

Court of Appeal Judgment

The Court of Appeal agreed with the trial judge and rejected the appeal. However, it disagreed with the trial judge’s reasoning. Instead, the Court of Appeal rejected the injunction claim on the basis that overlooking does not fall within the tort of nuisance.

The law of nuisance serves to protect against a range of interferences with land, the most relevant one in this case being interference with a neighbour’s quiet enjoyment of his land. The Court of Appeal concluded that it was a matter for Parliament to protect property owners against overlooking should it wish to do so, rather than the courts extending the common law of private nuisance. The claimants took the matter to the Supreme Court.

Supreme Court Decision

In a landmark 3:2 majority decision, the Supreme Court has decided that the Tate’s viewing platform does give rise to an actionable nuisance. The viewing gallery means that living in the flats is “much like being on display in a zoo”. Departing from the decisions at first instance and in the Court of Appeal, the Supreme Court reasserted the protections afforded by the common law to privacy in the home (even if that home is a glass house).

The Supreme Court confirmed that nuisance arises when:

  • there is substantial interference with the ordinary use and enjoyment of a claimant’s land; and
  • that interference is not consistent with the common and ordinary use of the defendant’s land.

Giving the Supreme Court’s ruling, Lord Leggatt found that the Tate’s viewing platform is not a “normal” use of the museum’s land and as such, causes a legal nuisance to the flat owners. It is important to note ‘mere’ overlooking was not the basis of the decision. Rather, it was the Tate’s invitation to patrons to look out (as is the nature of a viewing gallery) into the flats opposite was key. That level of intrusion was not, in the Supreme Court’s eyes, a ‘common and ordinary use’ of Tate’s land, in the context of the locality. The Supreme Court was also influence by the scale of the overlooking, bearing in mind that the viewing platform attracts hundreds of thousands of people each year with a maximum of 300 visitors using it at any one time.

The fact that flat owners should have known that interference of this kind was a risk when purchasing flats of this type of construction was not a defence to the nuisance. The public benefits of the viewing platform were also deemed to be irrelevant to the Supreme Court’s decision-making, though it will be interesting to see whether this is taken into account when the appropriate remedy is decided upon.

The Supreme Court has decided the issue of principle, but the question of whether the flat owners should be entitled to an injunction to restrain the nuisance from continuing, or damages to compensate them for the nuisance, remains to be seen. This issue has been remitted back to the High Court and the legal and property industries will now wait with great interest to see what remedy is ultimately granted to the flat owners.

A new form of nuisance?

The Supreme Court’s decision restates that private nuisance still does not extend to ’mere’ overlooking.  However, will we now see a trend of other property owners bringing legal action where they perceive their enjoyment of their property to be adversely affected by being overlooked? It seems unlikely. The Fearn case involved an extreme and unusual type and scale of “visual intrusion” and “intolerable interference with their freedom to use and enjoy the property”. Furthermore, the Supreme Court has made it clear that cases where the law will be applied the same way will be rare (not least because this was a very particular and exceptional set of circumstances).

For a case to be brought, the intrusion will need, objectively, to be “substantial”. The decision may bring some comfort to developers planning construction near residential buildings, but disputes regarding overlooking are not uncommon and so it remains to be seen whether people will view the decision in Fearn as a platform to try their luck.

The full Judgment can be read here.

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