In the decision of Fearn v Tate Gallery handed down by the Supreme Court on 1 February 2023, visual intrusion was held to be capable of being a straightforward nuisance. The case was brought by owners of flats in the block next door to the Tate Modern in London. With largely glass walls the interiors of these flats ended up being in the line of sight from the south side of the Tate Modern’s new viewing platform, which was built along the outside of the 10th floor of the building’s Blavatnik Building that opened in 2016. 

The flat owners, whose building pre-dated the one built by the Tate, brought their claim against the Tate on the basis that parts of the viewing platform “unreasonably interfered with their enjoyment of the flats so as to be a nuisance”, that it inferred with their right to respect for private and family life under Article 8 ECHR and because the Tate is a public authority, s.6 Human Rights Act 1998 was also in breach. The tenants sought an injunction requiring the Tate to prevent its visitors from viewing their flats from the viewing platform, or alternatively, an award of damages. 

At first instance, the trial judge heard that “a very significant number of visitors display an interest in the interiors of the claimants' flats. Some look, some peer, some photograph, some wave. Occasionally binoculars are used. Many photographs have been posted online”, and while it was noted that the viewing platform was open “every day of the week and was visited by an estimated 500,000-600,000 people each year” did not find there to be a breach of article 8, or s.6 HRA. On the matter of private nuisance, the court held at first instance that while “overlooking could amount to an actionable nuisance,” a claim in nuisance was not made out. Inner-city living, the judge noted, comes with it a degree of expectation around reduced privacy.

The Court of Appeal also dismissed the claim, this time on the basis that overlooking does not give rise to a claim of private nuisance, suggesting that overlooking is more like an invasion of privacy (which is a personal interest) rather than nuisance (damage to an interest in property) and therefore the flat owners needed to rely on other rights or remedies rather than nuisance.

The Supreme Court, by 3-2, disagreed and found that visual intrusion was capable of being a straightforward nuisance. To amount to a nuisance, the interference must be substantial, judged by the standards of the ordinary person, and the court found that the “near constant observation” met this standard. 

This landmark ruling brings with it some controversy and raises issues to consider in the future. The court identified that failings had been introduced from a number of institutions which included the Tate’s own commercial decisions, those of the developers of the flats adjacent and also by those that granted the permissions for both premises to be developed within a similar timeframe, albeit the Tate took longer to complete the work, and adjacent to each other without a consideration of the impact the two decisions might have upon each other.