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

The claimants owned flats in the Neo Bankside development beside Tate Modern. Their living areas had floor-to-ceiling glass walls. A public viewing gallery in the Tate's Blavatnik Building stood about thirty-four metres away and attracted hundreds of thousands of visitors each year. Visitors could see directly into the flats; some waved, used binoculars, took photographs and posted images online. The residents sought an injunction or damages in private nuisance. The trial judge accepted that intrusive viewing could in principle be a nuisance but dismissed the claim, partly because the residents could install blinds. The Court of Appeal also dismissed the appeal, holding that overlooking was not capable of amounting to nuisance. The residents appealed to the Supreme Court.

Can persistent viewing into a home from neighbouring land amount to private nuisance, and was the Tate's use of its viewing gallery an ordinary use that the residents had to tolerate?

By a majority, the Supreme Court allowed the appeal. Private nuisance protects the utility and amenity of land, and there is no closed list of the ways in which substantial interference may occur. The problem was not ordinary overlooking between neighbouring buildings but the Tate's exceptional use of its land to invite very large numbers of people to look out from a viewing platform. On the trial judge's findings, the resulting intrusion substantially interfered with the ordinary use of the flats. It was no answer that the Tate's activity was socially valuable or that the residents could live behind blinds or net curtains. Those considerations might bear on remedy, but they did not remove liability. The case was remitted for the appropriate remedy to be determined.

Private nuisance may be committed by visual intrusion where the defendant's use of land causes substantial interference with the claimant's ordinary use and enjoyment of land. The question is not a free-ranging balance of reasonableness; ordinary and common uses receive priority over exceptional uses that impose an undue burden on neighbours.

The judgment rejects a categorical rule that visual intrusion or overlooking can never be a nuisance and gives a modern restatement of the tort's organising principles. It emphasises that nuisance protects rights in land, so a claimant ordinarily needs a proprietary interest as established in Hunter v Canary Wharf. It also separates liability from remedy: the public benefit of an activity may affect whether an injunction or damages is appropriate, but does not authorise uncompensated interference. The case does not create a general tort of invasion of privacy or make ordinary neighbourly overlooking actionable.