The Court of Appeal has handed down judgment in the case of Fearn & Others v The Board of Trustees of the Tate Gallery, concerning a dispute between the Tate Modern gallery and its residential neighbours over the Tate’s public viewing platform.

The Court of Appeal, in dismissing the appeal has confirmed that “mere overlooking” is not capable of giving rise to a private nuisance.

Background to the dispute

A legal nuisance is usually caused by someone doing something on their land which interferes with the use of neighbouring land.

Fearn and other residential neighbours of the Tate Modern bought flats on London’s South Bank, in what the Court of Appeal described as “a striking modern development“.

At around the same time, the Tate Modern was constructing an extension including a large viewing platform which provided, in the words of the Court of Appeal “a striking view of London to the north, west, and east, with a less interesting view to the south“.

Unfortunately for the residents, visitors to the Tate Modern began to take photographs and “view the claimants and their flats with binoculars“.  This resulted in Fearn and the other residents seeking an injunction against the Tate Modern to prevent this overlooking, which they considered amounted to a legally actionable nuisance.

Decision

At first instance in the High Court (see our previous blog), the judge concluded that there was no actionable nuisance.

The residents promptly appealed.  Unfortunately for the residents, the Court of Appeal agreed with the High Court and dismissed the appeal.  However, the Court of Appeal disagreed with the High Court’s reasoning:

• The Court of Appeal, having undertaken a detailed review of the relevant case law, concluded that “the overwhelming weight of judicial authority… is that mere overlooking is not capable of giving rise to a cause of action in private nuisance“.
• The High Court considered that floor-to-ceiling glass windows meant that the residents had submitted themselves to a “self-induced exposure to the outside world” and that they could “install net curtains“. The Court of Appeal was critical of this.  It noted that there was no suggestion that the residents were using the flats “otherwise than in a perfectly normal fashion“, and it is not usually a defence to nuisance to say that the person suffering it could take steps to minimise the effects on them.

As the appeal has been dismissed, and leave to appeal to the Supreme Court has been refused, the residents will, it seems, have to put up with being overlooked by visitors to the Tate Modern.  This may appear unfair given that the overlooking in question is clearly an annoyance to them.  However, the Court of Appeal did point out that “even in modern times the law does not always provide a remedy for every annoyance to a neighbour, however considerable that annoyance may be” and that further laws on this matter are rightly a matter for Parliament.

Fearn & Others v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104

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