Supreme Court allows appeal by residents in Tate Modern viewing platform privacy case

The Supreme Court has - by a 3-2 majority - allowed an appeal brought by the owners of four luxury flats overlooked by the Tate Modern’s viewing platform.

The claimants had based their claim on the common law of nuisance.

Lord Leggatt, who gave the majority judgment, concluded that “there is no reason why constant visual intrusion of this kind cannot give rise to liability for nuisance and, on the facts found by the trial judge, it does in this case”.

The claimants sought an injunction requiring the Tate to prevent its visitors from viewing their flats from the viewing platform, or alternatively, an award of damages.

The claims were dismissed by the High Court ([2019] EWHC 246 (Ch)) and, for different reasons, by the Court of Appeal ([2020] EWCA Civ 104).

The claimants appealed to the Supreme Court, which allowed the appeal. Lord Reed and Lord Lloyd-Jones agreed with Lord Leggatt.

In Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent) - [2023] UKSC 4, Lord Leggatt outlined the background to the case.

The Tate Modern (the Tate), a public art gallery in London, opened a new extension in 2016 called the Blavatnik Building. This building is ten stories high and, on its top floor, has a viewing platform which offers panoramic views of London.

The claimants own flats in a block neighbouring the Tate that are at around the same height above ground as the viewing platform and have walls constructed mainly of glass. As observed by Lord Leggatt: “Unfortunately for the claimants in this case, visitors to the viewing gallery can see straight into the living areas of their flats”.

At the time of the trial the viewing platform was open every day of the week and was visited by an estimated 500,000-600,000 people each year.

The trial judge, Mann J found that a very significant number of visitors display an interest in the interiors of the claimants’ flats, noting: “Some look, some peer, some photograph, some wave. Occasionally binoculars are used. Many photographs have been posted online”.

The tenants claimed that the use of sections of the viewing gallery infringed their rights under Article 8 of the ECHR and, as they alleged the Tate Gallery was a public authority, the Tate was in breach of section 6 of the Human Rights Act 1998 (“the 1998 Act”).

The trial judge found that although there was a great degree of intrusion into the flats, the privacy claim under the 1998 Act failed because the Tate Gallery was not exercising functions of a “public nature”.

He held that intrusive viewing from a neighbouring property can in principle give rise to a claim for nuisance. However, he concluded that the intrusion experienced by the claimants in this case “does not amount to a nuisance”.

His reasoning, as noted by Lord Leggatt: “was in essence that the Tate’s use of the top floor of the Blavatnik Building as a public viewing gallery is reasonable and that the claimants are responsible for their own misfortune: first, because they have bought properties with glass walls and, second, because they could take remedial measures to protect their own privacy such as lowering their blinds during the day or installing net curtains”.

Lord Leggatt's reasons for allowing the appeal were summarised by the Supreme Court as follows:

Principles in the tort of private nuisance

The majority judgment reviews the core principles of the law of nuisance. In short, a nuisance is a use of land which wrongfully interferes with the ordinary use and enjoyment of neighbouring land. [9]-[11] To amount to a nuisance, the interference must be substantial, judged by the standards of the ordinary person. [22] Even where there is a substantial interference, the defendant will not be liable if it is doing no more than making a common and ordinary use of its own land. [27] What constitutes an ordinary use of land is to be judged having regard to the character of the locality, eg whether it is a residential or an industrial area.

It is no answer to a claim for nuisance to say that the defendant is using its land reasonably or in a way that is beneficial to the public. [47] In deciding whether one person’s use of land has infringed another’s rights, the public utility of the conflicting uses is not relevant. [121] The benefit of land use to the wider community may be considered in deciding what remedy to grant and may justify awarding damages rather than an injunction, but it does not justify denying a victim any remedy at all. [122]

The application of the law in this case

The trial judge made findings that the claimants’ flats are under near constant observation by visitors to the viewing platform. There are hundreds of thousands of spectators each year and many take photographs and post them on social media. The ordinary person would consider this level of intrusion to be a substantial interference with the ordinary use and enjoyment of their home. [48]

By contrast, inviting members of the public to admire the view from a viewing platform is not a common and ordinary use of the Tate’s land, even in the context of operating an art museum in a built-up area of south London. [50]

“The Tate is therefore liable to the claimants in nuisance. The court heard no argument on the appropriate remedy and so remitted the case to the High Court to decide this question”. [131]-[132]

Lord Leggatt concluded that the trial judge reached the wrong conclusion as a result of three errors of law:

1. The judge applied the wrong test by asking whether, in operating the viewing platform, the Tate was making an ‘unreasonable’ use of its land, instead of asking whether it was a common and ordinary use. [54]-[55]. 
2. The judge considered that the claimants had exposed themselves to visual intrusion into their homes by choosing to live in flats with glass walls. It is right that, if the Tate had been making an ordinary use of its land, the claimants could not have complained about any visual intrusion resulting from the design of their flats. [62]-[63] But where, as here, a defendant is using its land in an abnormal and unexpected way, it is no answer to a claim in nuisance to say that the claimant would not have suffered a nuisance if their property had been of different design or construction. [72]-[75]
3. The judge also held that it was reasonable to expect the claimants to take measures to avoid being seen from the viewing platform, such as putting up blinds or net curtains. This wrongly placed the responsibility on the victim to avoid the consequences of the defendant’s abnormal use of their land. [88]

Lord Leggatt then outlined errors made by the Court of Appeal:

The Court of Appeal recognised that the judge had made these errors but decided that the claim must nevertheless fail because “mere overlooking” cannot give rise to liability for nuisance. It is true that a person cannot complain of nuisance because their flat is overlooked by another building or because people on the top floor of that building can look into their homes and see inside [90]-[91]. However, that is not the complaint made in this case. The claimants’ complaint is that the Tate invites members of the public to look out from a viewing platform from which they can, and many do, peer into the claimants’ flats and allows this activity to continue without interruption for most of the day every day of the week. [92]

Lord Leggatt concluded: “There is no reason why constant visual intrusion of this kind cannot give rise to liability for nuisance and, on the facts found by the trial judge, it does in this case”.

Lord Sales, with whom Lord Kitchin agreed, gave a dissenting judgment. He concluded that according to an “objective standard of reasonableness” the Tate had not committed a nuisance.

The Supreme Court (by a majority of 3 to 2) allowed the appeal.

Lottie Winson