The recent Supreme Court judgment in Fearn and others (Appellants) v Board of Trustees of
the Tate Gallery (Respondent) [2023] hands down a landmark decision in favour of a
resident’s right to privacy.
In 2016, the Tate Modern Art Gallery in London built an extension called the Blavatnik
Building. The building’s top floor features a viewing platform which provides panoramic
views of London. The viewing platform also happens to provide clear and uninterrupted
views of the neighbouring Neo Bankside flats which are located on the southside of the
Gallery, with walls constructed of glass. Viewers are thereby able to peep directly into the
flats of the residents.
Five residents subsequently brought an action in 2019, based on the common law of private
nuisance, which is designed to protect homeowners from any activity that unduly interferes
with the use of their homes. They sought an injunction requiring the Tate to prevent
members of the public from viewing their flats, or an award for damages in the alternative.
The residents’ case was dismissed in the High Court, and then again in the Court of Appeal,
on the basis that “the law does not always provide a remedy for every annoyance to a
neighbour, however considerable that annoyance may be”, and by choosing to live in homes
with walls of glass, they had exposed themselves to a nuisance.
The Supreme Court did not agree. Rather, the Supreme Court held that visual intrusion can
be a nuisance and that the fact that the residents occupied a sensitive building (by reason of
its glass design) is not a defence. The residents purchased their flats before the erection of
the Blavatnik Building, and the operation of a viewing platform is not necessary for the
common and ordinary use and occupation of the Tate.
Lord Leggatt referred to principles arising out of a case dating back to 1341 in which a
fishmonger, John Le Leche, unlawfully erected a watch-tower in order to peep on the
activities of his servants. From this, he drew the conclusion that, “it is obvious that … such an
activity could substantially interfere with the ordinary use and enjoyment of [the residents’]
land”. Lord Leggatt further likened the situation to being on display in a zoo.
The case has presently been returned to the High Court to decide on an appropriate remedy.
It will be interesting to see what solution the High Court determines protects the interest of
the residents, and how they come to reach it.
Not only does this ruling have serious financial implications for the Tate, it also has
significant implications for the future of modern architecture. It appears that both property
developers and architects will now have to ‘peep’ into the bigger picture when buying land
and planning how to develop it.
To discuss the issues raised in this article and the implications it may have for you and/or
your land or business, please call us 01484 821500 or fill out our online enquiry form to
request a callback.