From one of London’s best free viewpoints to a neighbour’s nightmare – what could the result of Fearn & Others v Board of Trustees of the Tate Gallery mean for developers? Here, Davina Mordanti looks at the claim and what developers can learn.

In 2016, the Tate Modern opened a new 10-storey extension (the Blavatnik Building) which included a viewing platform. Whilst hundreds of thousands of visitors were exposed to panoramic views of London, the interior of the directly adjacent flats were also on full display. The neighbouring residential buildings, known as Neo Bankside, are made up of 217 apartments with floor to ceiling glass windows. Whilst these apartments offered similarly striking views of the city, the opening of the Tate Modern viewing platform, which in some cases was just 34m away, attracted around half-a-million visitors annually. This resulted in the residents of Neo Bankside’s lives compared to “being on display in a zoo” with visitors to the viewing platform taking photographs and videos of the flat’s interiors, some even using binoculars.

Understandably the residents of the apartments felt the actions of visitors to Tate Modern to be too much and sought an injunction requiring the Tate Modern to prevent its visitors from accessing certain areas of the viewing platform or damages in the alternative.

The claim was on the following three basis:

1. The viewing platform unreasonably interfered with the occupier’s enjoyment of their flats, amounting to a nuisance;
2. The viewing platform infringed on the tenant’s rights under Article 8 of the ECHR (the right to respect for private and family life); and
3. The Tate Modern was in breach of Section 6 of the Human Rights Act 1998 (a duty on public authorities to act compatibility with the rights in the Act where possible).

In 2019, the High Court dismissed the claim and held that the viewing platform was not a legal nuisance or a breach of privacy under Article 8 of the ECHR.

The Court of Appeal also dismissed the claim but for different reasons. The court held that the tenants were not entitled to protection from ‘overlooking’, finding that overlooking by neighbours does not amount to an actionable private nuisance.

In a surprising turn of events, on 1 February 2023, the Supreme Court held the Tate Modern’s public viewing platform does constitute “a straightforward case of nuisance”.  At the date of this blog we don’t know what remedy will be available to the residents as that is a decision that has been handed back to the High Court for ruling.

In handing down its judgement, the Supreme Court considered whether or not the land was being used for a “common or ordinary” use.  In the case of the Tate Modern, inviting members of the public to look out from the viewing platform was decided to be an exceptional use of its land, not a necessary or ordinary incident of operating an art gallery.  Whilst commercial and residential developments should (hopefully) satisfy this test, it is an issue that developers must now consider, as even risk of litigation is enough to concern property developers.

Whilst the Supreme Court recognised that landowners should be free to build on land at their discretion, there is no doubt that the outcome will be of significant concern to developers. In addition to the potential claims for infringements of rights of light, developers will now need to consider potential overlooking nuisances when developing in populated areas, such as London, Manchester and other towns and cities in England and Wales.  In exceptional circumstances, it is possible that landowners and tenants may agree to enter into covenants which authorise overlooking to avoid such private nuisance claims.  It remains to be seen whether or not the Supreme Court’s decision impacts on the planning regime,  as planning authorities may need to assess a potential overlooking nuisance before granting permission in the future. Keep an eye out for a follow up blog upon the Supreme Court’s decision.

This article is not provided as advice and should not be relied upon as such. Should you require legal advice from our corporate team, email us at Hello@beyondcorporate.co.uk