Residents of Neo Bankside flats with glass walls sued the Tate Gallery, claiming its public viewing gallery enabled hundreds of thousands of visitors annually to peer into their living areas, constituting private nuisance. The Supreme Court held this constant visual intrusion was actionable as nuisance, remitting the case for determination of remedy.
Background
The appellants were leasehold owners of flats in the Neo Bankside residential development in London, situated approximately 34 metres from the Blavatnik Building extension of Tate Modern. The top floor of that building housed a public viewing gallery offering 360-degree panoramic views of London. The flats, designed by Richard Rogers and Partners, featured predominantly glass walls with floor-to-ceiling windows. Between 500,000 and 600,000 visitors used the viewing gallery each year, with a limit of 300 at any time. Visitors could see directly into the appellants’ living areas, particularly on the 18th and 19th floors which were at approximately the same height as the gallery.
The trial judge, Mann J, found that a very significant number of visitors displayed interest in the interiors of the flats — looking, peering, photographing, waving, and occasionally using binoculars. Many photographs showing the interiors had been posted on social media. Mann J found that this level of visual intrusion would reasonably be regarded by a homeowner as a material intrusion into the privacy of their living accommodation.
The Issue(s)
Two principal issues arose:
1. Whether visual intrusion (‘overlooking’) can in principle constitute an actionable private nuisance
Mann J answered yes; the Court of Appeal answered no, holding that ‘mere overlooking’ is incapable of giving rise to a cause of action in private nuisance regardless of its severity.
2. Whether, if visual intrusion can constitute nuisance, the Tate was liable on the facts
Mann J held it was not liable, reasoning that the Tate’s use was reasonable, the claimants had created their own sensitivity through the glass design, and they could take protective measures such as lowering blinds. The Court of Appeal disagreed with Mann J’s analysis on this point but did not need to decide it given their ruling on the first issue.
The Parties’ Arguments
The appellants contended that the Tate’s use of its land as a public viewing gallery was a particular and exceptional use, not a common and ordinary one, and that the resulting constant observation and photography caused a substantial interference with the ordinary use and enjoyment of their flats. They argued that the well-settled principles of private nuisance, properly applied, established liability.
The respondent argued primarily that ‘overlooking’ cannot constitute a nuisance as a matter of law, relying on the Court of Appeal’s reasoning and nineteenth-century authorities concerning the opening of windows. As a fallback, the Tate contended that Mann J’s reasoning on liability was correct — that it was making reasonable use of its land and that the claimants’ glass-walled design created their own sensitivity.
The Court’s Reasoning
The majority judgment (Lord Leggatt, with Lord Reed and Lord Lloyd-Jones)
Lord Leggatt set out the core principles of private nuisance in a comprehensive analysis. He emphasised that private nuisance is a tort to land protecting the utility and amenity value of the claimant’s land, that the categories of nuisance are not closed, and that there is no conceptual limit to what can constitute a nuisance:
Anything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land is capable of being a nuisance.
Lord Leggatt critically distinguished the concept of ‘reasonable user’ from a general assessment of the reasonableness of the defendant’s use. He endorsed the formulation of Bramwell B in Bamford v Turnley:
those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action.
He explained that this principle rests on reciprocity:
The governing principle is good neighbourliness, and this involves reciprocity. A landowner must show the same consideration for his neighbour as he would expect his neighbour to show for him.
Applying these principles, Lord Leggatt found three material errors in Mann J’s reasoning:
(i) Applying the wrong legal test
Mann J asked whether the Tate’s use was ‘unreasonable’ in a general undefined sense, rather than whether it was a common and ordinary use of land. Operating a viewing gallery inviting several hundred thousand visitors annually was manifestly a particular and exceptional use, not a common and ordinary one.
(ii) Wrongly treating the glass design as creating ‘sensitivity’
While the glass walls were relevant to what occupants must tolerate from the ordinary use of neighbouring land, they could not provide a defence where the defendant’s use was exceptional. Lord Leggatt stated:
it is not a defence for a defendant to argue that the interference was caused by the presence or construction or design of the claimant’s building.
The judge’s hypothetical exercise of imagining a differently designed building had no factual foundation and was legally impermissible.
(iii) Wrongly placing the burden of protective measures on the claimants
Lord Leggatt held it was unsound to require claimants to mitigate the impact of the defendant’s exceptional use:
The claimants cannot be obliged to live behind net curtains or with their blinds drawn all day every day to protect themselves from the consequences of intrusion caused by the abnormal use which the Tate makes of its land.
On the Court of Appeal’s reasoning, Lord Leggatt held they were right that ‘overlooking’ (in the sense of a spatial relationship or ordinary looking from a neighbouring property) cannot constitute a nuisance. However, the Court of Appeal fundamentally erred in characterising the claim as one about ‘mere overlooking’:
To argue that this use of the defendant’s land cannot be a nuisance because ‘overlooking’ … cannot be a nuisance is like arguing that, because ordinary household noise caused by neighbours does not constitute a nuisance, inviting a brass band to practise all day every day in my back garden cannot be an actionable nuisance.
On the public interest, Lord Leggatt held that this was relevant only to remedy, not liability. Citing Bramwell B:
Now, in the first place, that law to my mind is a bad one which, for the public benefit, inflicts loss on an individual without compensation.
The dissenting judgment (Lord Sales, with Lord Kitchin)
Lord Sales agreed on the first issue — that visual intrusion is capable in principle of constituting a nuisance. However, he disagreed on the second issue. He favoured a broader test of objective reasonableness and reciprocity rather than focusing predominantly on whether the defendant’s use was ‘common and ordinary’. He considered that the claimants’ own adoption of an unusually open glass design, atypical for the locale, was a relevant factor in the give-and-take assessment. He would have upheld Mann J’s assessment as a permissible evaluative judgment, emphasising appellate restraint in interfering with fact-sensitive assessments of this nature.
Practical Significance
This decision is significant in several respects. First, it confirms that the categories of private nuisance are not closed and that visual intrusion, where sufficiently intense, can constitute an actionable nuisance — disposing of the Court of Appeal’s bright-line exclusion. Second, it provides an authoritative restatement of the core principles of private nuisance, emphasising that the test is not a free-ranging assessment of reasonableness but turns on whether the defendant’s use is common and ordinary, applied through a principle of reciprocity. Third, it reaffirms that public benefit is not a defence to liability, though it may be relevant to remedy. Fourth, it underscores that the availability of self-help measures to the claimant cannot shift the burden of an exceptional use onto the victim. The case was remitted for determination of the appropriate remedy, which may include an injunction, damages, or consideration of remedial measures the Tate might propose.
Verdict: The Supreme Court allowed the appeal by a majority of 3-2 (Lord Leggatt, Lord Reed and Lord Lloyd-Jones; Lord Sales and Lord Kitchin dissenting). The Court held that the Tate’s use of the viewing gallery gives rise to liability to the claimants under the common law of private nuisance. The case was remitted to the High Court (Chancery Division) to determine the appropriate remedy.
Source: Fearn & Ors v Board of Trustees of the Tate Gallery [2023] UKSC 4
