The Supreme Court handed down its judgment in Fearn & Others v Board of Trustees of the Tate Gallery on 1 February 2023 [2023] UKSC 4 on appeal from [2020] EWCA Civ 104.

The extension to the Tate Modern, later named the Blavatnik Building, was complex from the off.  The initial glass design gained planning permission in 2007.  A revised brick lattice exterior design was then favoured and obtained planning permission two years later.  The scheme overran years beyond the initial projections and costs spiralled.  However, the most recent controversy has concerned the viewing platform on the top floor of the ten story Blavatnik Building.

The Claimants in this case were neighbours of the building residing in glass walled flats viewed intently from the viewing platform (that also takes in views of London).  They sought an injunction to prevent use of the platform or damages.

The important part of the cases journey through the courts in relation to planning is the consideration of the extent to which the planning system is to regulate inappropriate overlooking.  Where we have ended up is with confirmation that it is not for the planning system to determine private nuisance issues.

The extent of the overlooking in this case was extreme.  The claimants suffered visitors to the Tate Modern peering into their homes, with some people even sharing images on social media and using binoculars.  

The majority judgment of the Supreme Court, in very brief summary, found that: the level of intrusion by visitors to the Tate Modern to be a substantial interference with the ordinary use and enjoyment of their homes; and that use of a viewing platform is not a common and ordinary use of the Tate Modern.  Therefore, the Tate was liable to the claimants in nuisance.

The facts of this case involving glass walled flats at close proximity, thousands of visitors with a keen interest in observing the flats, are quite unique.  The “overlooking” arguments raised in the context of thousands of planning applications every year do not mean that a nuisance exists, although in rare cases it might.  This case highlights the need to take care over building layout and design.  It is clear that although a building, and by extension, it’s use, may have planning permission, this does not prevent a separate action in nuisance from success.

Under-funded, overloaded – must the planning system also regulate nuisance?  Thankfully not!