Inviting members of the public to admire the view from a viewing platform is not a common and ordinary use of land and is capable of giving rise to liability for nuisance.
The Supreme Court, applying well-settled tests for establishing liability in nuisance, has overturned the lower judgments in the long-awaited decision in Fearn and others v The Board of Trustees of the Tate Gallery [2023] UKSC 4; [2023] PLSCS 22.
The claimants owned flats, with walls constructed mainly of glass, in a block neighbouring the Tate Modern art gallery in London. The flats are at around the same height above ground as a viewing platform on an extension to the Tate – the Blavatnik building – which affords panoramic views of London. On the south side, visitors can see directly into the claimants’ flats.
At the time of the trial in 2019 the viewing platform was open every day of the week and visited by 500,000-600,000 people each year. The trial judge found that the flats were under near constant observation by visitors to the viewing platform, who looked, peered and took photographs of the flat interiors, many of which were posted online.
The ordinary person would consider this level of intrusion to be a substantial interference with the ordinary use and enjoyment of their home. By contrast, inviting members of the public to admire the view from a viewing platform is not a common and ordinary use of the Tate’s land, even in the context of operating an art museum in a built-up area of London.
The trial judge had applied the wrong test, by asking whether the use of the Tate’s land was reasonable rather than whether it was a common and ordinary use. He also considered that the appellants had exposed themselves to visual intrusion by choosing to live in flats with glass walls. Had the Tate been making an ordinary use of its land, the appellants would have had no complaint. However, it was not their responsibility to avoid the consequences of the defendant’s abnormal use of their land by putting up blinds or net curtains.
While, as the Court of Appeal decided, mere overlooking cannot give rise to a liability in nuisance, the complaint in this case was different. The Tate invites members of the public to look out from a viewing platform from which they can and do peer into the claimants’ flats and allows this to continue without interruption for most of the day every day. This was a nuisance and the High Court will determine a remedy.
Louise Clark is a property law consultant and mediator
