A private nuisance arises when something unreasonably and substantially interferes with a person’s property or their enjoyment of that property. There are remedies in law where a private nuisance has taken place.
In Fearn and others vs the Board of Trustees of the Tate Gallery, the Supreme Court held that the owners of luxury flats opposite the Tate Modern’s viewing gallery faced unacceptable intrusion from visitors, preventing them from enjoying their homes. As a result, the viewing platform constituted a nuisance in law to the adjacent flat owners.
Background
In this case, five flat-owners of flats in the Neo Bankside development on the South Bank in London brought a claim against the Tate Modern over the estimated 500,000 visitors a year looking into their homes from the viewing platform about forty metres away from their flats. The platform, which offers a panorama of the city as well as a direct view into their floor-to-ceiling glass-fronted apartments, opened to the public in 2016, a few years after the flats were completed.
The Private Nuisance Claim
After complaints from the residents, the museum tried to limit tourists looking at the apartments by restricting the viewing platform’s opening hours and asking tourists to stop taking photographs of the properties. The flat owners felt that this was not sufficient and brought a private nuisance claim against the Tate, claiming that visitors to the gallery could look into their apartments and were, in some cases, using binoculars to do so. They applied for an injunction to stop people from viewing their flats from the platform, or damages.
Lower Courts Dismiss Owners’ Claim
The High Court dismissed the claim, suggesting that the owners should mitigate the nuisance by putting up blinds or curtains. Later, the Court of Appeal also rejected the owners’ appeal, finding that since this was a case of one property overlooking another, it could not be considered a nuisance.
Supreme Court Finds a Straightforward Case of Nuisance
However, the Supreme Court overturned the Court of Appeal’s decision, finding that visual intrusion could fall under the scope of the UK law of private nuisance. Lord George Leggatt, the lead judge in the ruling, noted that ‘hundreds of thousands of visitors each year’ visited the platform and many took photographs of the apartments. In his view, it would be oppressive to live in such circumstances and compared it to being on display in a zoo.
Lord Leggatt also went on to say that the viewing platform was not a ‘common and ordinary’ use of the Tate Museum’s land. He rejected the High Court’s suggestion that the apartment owners should buy curtains to mitigate the nuisance on the basis that it was not correct to place the responsibility on the victims to deal with the problem. He likened it to dealing with a complaint of excessive noise by saying that the victim should buy earplugs.
The Supreme Court returned the case to the High Court to decide whether access to the platform should be restricted, whether the Tate Modern should pay compensation, or whether some other proposal from the museum could solve the problem.
Our Comments
At first sight, this case seems to have the potential to open the floodgates for private nuisance claims in the context of overlooking a neighbouring property. However, the decision, in this case, involved a set of exceptional circumstances, with the level of intrusion being excessive given that there are an estimated 500,000 visitors to the viewing gallery every year. Accordingly, it is unlikely to apply to everyday scenarios.
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