Tenants win nuisance claim against Tate Modern - Boodle Hatfield

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01 Feb 2023

Tenants win nuisance claim against Tate Modern

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Kate Symons View profile
3 min read

The residents of an exclusive glass clad residential building adjacent to Tate Modern have won their long-running legal dispute with the gallery with the Supreme Court finding that that a viewing platform that allows visitors to the gallery to enjoy the panoramic London skyline, whilst also looking directly into the residents' living space, constitutes a "visual nuisance".

The viewing platform, situated on the tenth floor of the gallery is said to have attracted in excess of 500,000 visitors each year with a significant number of those visitors displaying an interest in the interiors of the adjacent building, taking photographs, waving at residents and in some cases using binoculars for a better view before posting images on social media. The residents claimed that the use of the viewing platform constituted a nuisance, turning their homes into a "public exhibit" akin to being on display in a zoo.

The residents' claim of nuisance was rejected by both the High Court, which found that residents in an inner city location “can expect to live quite cheek by jowl with neighbours” and should perhaps address the issue with the use of net curtains, and the Court of Appeal which found that "mere overlooking" cannot give rise to liability for nuisance.

The Supreme Court however disagreed with the decisions in the lower courts finding that "inviting members of the public to look out from a viewing gallery is manifestly a very particular and exceptional use of land" and that the residents "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 of the land". The Supreme Court also rejected the idea that the residents claim was based on mere overlooking - finding that the residents did not object to the fact that they were overlooked, but did object to the "visual intrusion" created by the gallery inviting the public to the viewing platform given the proximity of the claimants flats.

The saga may not end here. The Supreme Court, whilst finding the gallery liable for nuisance, was not able to decide an appropriate remedy the residents having previously argued for an injunction to prevent the further use of the viewing platform or compensation in the form of damages. The residents and gallery have been encouraged to reach agreement, failing which the matter will return to the High Court.

Whilst unarguably an interesting decision, the facts of the residents' claim are relatively unique. It will not be easy for those finding themselves overlooked in more mundane circumstances to successfully apply this judgment to establish a successful claim for nuisance - where perhaps net curtains or blinds may suffice.

Fearn and others Board of Trustees of the Tate Gallery (Respondent)

(Appellants) v

Passing his judgement, Lord Leggatt said the viewing gallery, which is currently closed, left the residents feeling like "being on display in a zoo". He added it was "not difficult to imagine how oppressive living in such circumstances would feel for any ordinary person". He also found the platform was not a "normal" use of the museum's land and "inviting members of the public to look out from a viewing gallery is manifestly a very particular and exceptional use of land". "It cannot even be said to be a necessary or ordinary incident of operating an art museum," he said.

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