'Like being on display in a zoo': what are the consequences of the Tate Modern court ruling?

The Fearn v Tate Gallery Supreme Court decision in February 2023 received considerable coverage in the press not least because of the high profile nature of the defendant. How much will this case impact on nuisance disputes between neighbours?

The claim was brought by the owners of long leasehold flats in a development directly opposite the new extension of the Tate Modern. One of the features of the building was a viewing gallery which enabled visitors to see straight into flats with visitors frequently looking into the flats and taking photographs and, less frequently, using binoculars. The claimants applied to the court for an injunction requiring the Tate to prevent members of the public from observing their flats on the grounds of nuisance. They also claimed a breach of their rights under article 8 of the European Convention on Human Rights.

The Supreme Court held that the overlooking did amount to a nuisance for which the claimants were entitled to compensation.

A nuisance is use of land which wrongfully interferes with the ordinary use and enjoyment of neighbouring land. To amount to a nuisance, the interference must be substantial. The Court said that the constant visual intrusion was "oppressive" and was a substantial interference with the ordinary use and enjoyment of the flats.

Will this lead to other ‘visual interference’ nuisance claims and do developers need to be concerned about building in populated areas? It is probably inevitable that there will be an emergence of visual intrusion claims although it should be emphasised that the intrusion in the Tate case was very much at the exceptional end of the scale. It should also be remembered that properties have been overlooked since the first cities were constructed in medieval times and being overlooked in itself does not amount to an actionable nuisance.

For any help and advice regarding property rights or any other litigation matter please contact Johanne Spittle, Director & Head of Litigation at Ware & Kay on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email johanne.spittle@warekay.co.uk.