Welcome to the second of our RED Alerts of 2023.

Also featuring in this month's update:

• Peril at Picnic House: email exchange affects transfer of property to ex-partner.
• Pay now, argue later: Supreme Court decision on conclusiveness of service charge certificates.
• Supreme Court solution to service charge reapportionment.
• Adverse possession: service charge and squatter's rights.
• Japanese Knotweed: Untying the knot on liability for "blight"?

Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4

Summary

A group of residential tenants have emerged victorious in the much-anticipated Supreme Court judgment. Despite failing to convince both the High Court judge and the Court of Appeal of their case, the Supreme Court found in favour of the leaseholders and held that the Tate was liable in nuisance by a tight majority of 3 to 2.

The facts

This case concerned the viewing platform at the Tate Modern which opened its doors to the public in 2016. Since its opening, the residents of the adjacent Neo Bankside development had complained of visitors to the gallery peering into their flats (sometimes even taking photographs or filming) which prompted them to bring a claim for an injunction in 2017.

The residents argued that the use of the gallery constituted a private nuisance and also cited section 6 of the Human Rights Act 1998 and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 

Both the first instance judge and the Court of Appeal dismissed the residents' claim (albeit for different reasons). In particular, the Court of Appeal issued its judgment on the basis that mere overlooking cannot give rise to a claim in private nuisance. You can find further detail on the Court of Appeal's decision in our previous article here.

Supreme Court decision

The Supreme Court allowed the residents' appeal by a slim majority of 3 to 2. Lord Leggatt, who delivered the majority judgment, began by first summarising the core principles of the law of nuisance; for example, that a nuisance claim requires a diminution in the utility and amenity value of the claimant's land rather than just personal discomfort and that a substantial interference with the claimant's ordinary use of the land must have occurred. The majority were particularly keen to emphasise that the reasonableness or otherwise of the defendant's use of the land is no answer to a claim in nuisance.   As a result, the judgment will no doubt become a helpful reference point for those considering nuisance claims going forward. 

Ultimately, the Court held that this is a "straight forward case of nuisance" and that it is "beyond doubt" that the viewing platform caused a substantial interference with the ordinary use and enjoyment of the flats. 

The decision also clears up a number of important points regarding the future of private nuisance, including clarifying that 'visual intrusion' can, in principle and depending on the facts in question, be a nuisance. The ruling also clarifies that a defendant will not be able to use any characteristics of the claimant's building (eg having glass walls) as a defence to liability and that claimants shouldn't be expected to take steps to avoid or lessen the nuisance, such as putting up net curtains as a shield to prying eyes of the Tate's visitors in this case. 

Our comment 

This is an extremely important decision for the law of nuisance and was closely fought. At first glance, this ruling will be of great interest to many property owners who are concerned about privacy and ‘overlooking’, especially those in modern high rise properties featuring floor-to-ceiling windows. However, the Supreme Court has sought to keep the floodgates firmly shut by emphasising that their decision was specific to the facts of the case; ie that the Tate's specific use of its property as a viewing platform for members of the public to admire the view is not a common and ordinary use of the Tate's land, even in the context of operating an art museum. It remains to be seen if other cases may be brought to broaden the concept of privacy; however, the fact that 2 of the 5 Supreme Court judges disagreed with the outcome may be a deterrent. 

One thing that we can say for certain is that this decision will have direct implications for developers, architects and engineers who, in addition to rights of light, will now need to have regard to this case in their future projects and designs. We will likely see an increase in objectors seeking to use privacy arguments in development disputes as another string to their bow which may add yet another layer of complexity and delay to negotiations. 

Whilst this may be the end of the road in the context of appeals, it is not quite the end of the story as the Supreme Court decided that the High Court should determine the question of remedy if the parties can't agree between themselves. Public interest arguments may have failed to persuade the Supreme Court against imposing liability on the Tate but they will certainly be relevant to the question of whether an injunction should be awarded or if the leaseholders could be fully compensated through a payment of damages only. The fate of the Tate's viewing gallery therefore still rests in the balance!