Don't look down! Supreme Court rules that visual intrusion can amount to private nuisance

Over a year after the appeal was heard, the Supreme Court has now handed down judgment in Fern and others v Board of Trustees of the Tate Gallery [2023] UKSC 4, overturning the decisions of the High Court and Court of Appeal, and establishing that visual intrusion can be a private nuisance in England & Wales.

Facts

In 2016, the Tate Modern opened a viewing platform which offered panoramic views of London. Part of the viewing platform overlooked neighbouring flats, giving visitors a direct view into those flats, with photographs being taken and uploaded on to social media.

The owners of the impacted flats issued a claim in, amongst other things, common law nuisance and sought an injunction to stop the interference or, alternatively an award for damages to compensate for the intrusion.

Lower courts

The lower courts rulings found in the favour of the Tate. It said that, although the extent of the viewing and interest shown in the claimant's flats was a material intrusion into their privacy and could amount to a nuisance, no nuisance had in fact arisen, because the Tate's use of the top floor as a public viewing gallery was reasonable and, perhaps rather insincerely, said the claimants were responsible for their own misfortune.

On appeal, it was recognised that the reasoning of the judge at first instance involved material errors of law and that, if the principles of common law nuisance were correctly applied, the claim would have succeeded. Ultimately, however, the appeal was dismissed on the basis that visual "overlooking" would not amount to a private nuisance.

Supreme Court

The Supreme Court disagreed and found visual overlooking was a nuisance. It said:

• In nuisance, we should look at the reasonable use of the land, rather than the ordinary use.

• Whether on these specific facts, operating a viewing gallery is necessary for the common and ordinary use and occupation of the art gallery. Tate Modern's use was exceptional. It was inviting thousands of people to its viewing gallery.

• Responsibility for avoiding the impact of an activity which causes substantial interference should not be on the victim.

Conclusion

Substantially interfering with a person's use and enjoyment of property can be costly. What constitutes interference (noise, smell, visual intrusion) will always be dealt with on a case by case basis by the courts. This cases adds to that body of case law in private nuisance.

This case will be important to landlords and developers alike,  especially those developments with neighbouring property close-by who may be impacted by such works.

If you have any concerns or queries about how this decision might impact you or your business, please do not hesitate to get in touch with our Real Estate Disputes team or your usual Brodies contact.