The north-facing view from Blavatnik Tower at Tate Modern, towards the City of London.

The Supreme Court stunned all those who have been following the plight of the residents of Neo Bankside. The long-winded legal dispute (Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent) [2023] UKSC 4) started when the Tate Modern inaugurated its viewing platform on the Blavatnik Building in 2016 and it quickly became clear that the platform enabled visitors to constantly peer into the residential apartments of the Neo Bankside development. The Supreme Court’s decision comes as a surprise given that it overturns the previous rulings by both the High Court and the Court of Appeal and has now established that this constant peering by visitors does amount to nuisance under the law of tort. We have previously covered the earlier stages of the dispute here and here.

I must confess that the decisions of the lower court always struck me as slightly odd on principle. One might live in a flat in an urban environment in which one’s neighbours can see in, though perhaps only with a passing glance, which is quite different to the constant peering the residents of Neo Bankside were subjected to. In his recap of the law of nuisance, Lord Leggatt masterfully explains how the Tate’s provision of the viewing balcony amounts to a “very particular and exceptional use of land”. The extent of viewing of the claimants’ flats was so extensive that it could never be considered as a necessary or natural consequence of the common and ordinary use of and occupation of the Tate’s land (paragraph 70). In addition to this, it is unreasonable for the Tate to expect to “rely on the principle of give and take and argue that it seeks no more toleration from its neighbours for its activities than they would expect the Tate to show for them” (paragraph 50). In essence, inhabitants of flats, provided they use them in a reasonable and expected way, can expect a degree of reciprocity from their neighbours.

Lord Leggatt also clarified that in nuisance, it is not a defence to require the claimants to put in place protective measures such as curtains, because this puts all the onus on the claimant (paragraph 83). This also goes against the principle of reciprocity. The Court of Appeal decided that “overlooking” is not a liability in nuisance. However, Lord Leggatt states the Court of Appeal was wrong in considering this claim to be about “overlooking”. The definition of overlooking is not appropriate for this case and the objection stems from the fact that the Tate not only permits but in fact even invites this constant intrusive viewing.

The lower courts were also wrong in their placing of emphasis on public interest, that is that the Tate viewing platform was an essential part of the museum’s function. Instead, public interest is applied to the question of what remedy to grant once liability has been established. The Supreme Court has remitted the case to the High Court to determine what would be the appropriate remedy. Whether this will be a damages award or an injunction is yet to be determined, but we will be eagerly awaiting this decision.

Image credit: Courtesy of © Ana-Maria Herman