Fearn & Ors v Board of Trustees of the Tate Gallery

Factual and Procedural Background

The Claimants are long-leasehold owners of four glass-fronted flats in “Block C” of “Neo Bankside,” a residential high-rise situated on the South Bank of The City. Directly opposite, “The Defendant” (the Board of Trustees of Tate Modern) constructed the “Blavatnik Building,” whose Level-10 walkway is a free, 360-degree public viewing gallery. From that gallery visitors can see directly into the Claimants’ floor-to-ceiling living areas at distances of roughly 34 m, frequently photographing and posting images on social media.

The Claimants issued proceedings on 22 February 2017 seeking an injunction to close the southern and part of the western walkways, alleging an unreasonable interference with enjoyment of land (private nuisance) and, originally, a breach of Article 8 ECHR. At first instance Judge [Mann] dismissed the human-rights claim and, although he held that “visual intrusion” can constitute a nuisance, found no actionable nuisance on the facts. The Court of Appeal reversed him on principle—holding that “mere overlooking” can never be a nuisance—and, in the alternative, concluded that Judge [Mann] had erred when balancing the parties’ interests. The Claimants appealed to the Supreme Court. The reproduced text is the dissenting judgment of Lord Sales (with whom Lord Kitchin agreed) stating that the appeal should be dismissed.

Legal Issues Presented

1. Whether, as a matter of principle, visual intrusion caused by people looking into a residential property can constitute an actionable private nuisance.
2. If so, whether on the particular facts the use of the Defendant’s viewing gallery created an actionable nuisance warranting injunctive relief or damages.
3. Ancillary: what role, if any, Article 8 ECHR plays in defining or expanding the common-law tort of private nuisance.

Arguments of the Parties

Appellants’ (Claimants’) Arguments

• The tort of private nuisance already protects against unreasonable interference with use and enjoyment of land; extreme visual intrusion is no different.
• Judge [Mann] erred by treating the flats’ glass design as a “self-induced sensitivity” and by relying on potential self-help such as blinds.
• The Court of Appeal was wrong to hold that “mere overlooking” can never be a nuisance; extensive case-law and Article 8 support extension to privacy harms.

Respondent’s (Defendant’s) Arguments

• Historically nuisance requires emanations (noise, fumes, etc.); overlooking has never been actionable and is governed by planning control, not tort.
• The Claimants voluntarily purchased highly glazed dwellings and converted “winter gardens” into living space, creating their own sensitivity.
• Reasonable self-help (blinds, film, curtains) is available; forcing closure of a public gallery would place an excessive burden on the Defendant’s ordinary land use.

Table of Precedents Cited

Court's Reasoning and Analysis

Lord Sales accepts that traditional formulations of nuisance (“material interference with ordinary comfort”) are broad enough to include extreme visual intrusion. Historical authorities, foreign case-law, and academic commentary show that the tort is not confined to physical emanations.

Having answered the principle question affirmatively, he turns to the facts. The correct test is objective “give and take” reasonableness, balancing both neighbours’ rights. Key factors:

• Locality: a dense, tourist-heavy urban environment where some overlooking is inevitable.
• Claimants’ flats are unusually sensitive because of their all-glass design and conversion of “winter gardens” into living space.
• Defendant’s viewing gallery is a reasonable, culturally beneficial use and is not malicious or excessive when judged against ordinary residential blocks.
• Effective self-help (blinds, film, curtains) is available and is a normal aspect of city living.
• Precedents on “sensitive claimant” (Robinson v Kilvert) and window-opening cases support factoring in self-induced exposure.

Because normal-design flats would not suffer an actionable interference, the Claimants cannot convert their heightened exposure into liability for the Defendant. The Court of Appeal erred by treating “common and ordinary use” as determinative and by undervaluing the Defendant’s reciprocal property rights. Judge [Mann] applied the law correctly, so the appeal should be dismissed.

Holding and Implications

Proposed Holding (Dissent): APPEAL DISMISSED.

Lord Sales would have upheld the trial judgment, concluding that although visual intrusion can amount to private nuisance, the Claimants did not meet the objective threshold in this case. The decision emphasises:

• The governing test is objective reasonableness (“give and take”) rather than a rigid “common and ordinary use” rule.
• Self-help and claimant-induced sensitivity are legitimate considerations in privacy-nuisance claims.
• Article 8 ECHR adds nothing where domestic tort principles already provide a complete analytical framework.

Because this is a dissent, it sets no binding precedent, but it articulates a detailed framework likely to influence future cases involving privacy, architecture and land use.