Fearn v Board of Trustees of the Tate Gallery

Case Name: Fearn v Board of Trustees of the Tate Gallery 

Citation: Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4; [2024] AC 1

Court: Supreme Court of the United Kingdom 

Date of Decision: 1 February 2023 

Bench: Lord Reed (President), Lord Lloyd-Jones, Lord Kitchin, Lord Sales and Lord Leggatt. Lord Leggatt delivered the majority judgment, while Lord Sales delivered the dissenting judgment. 

Introduction 

Fearn v Board of Trustees of the Tate Gallery is a leading modern authority on the scope of the tort of private nuisance. The case arose from an unusual form of interference: visitors to the Tate Modern’s viewing platform could look directly into the living areas of neighbouring flats. The Supreme Court unanimously rejected the proposition that visual intrusion is incapable, as a matter of law, of amounting to nuisance. A narrow majority then held that the particular interference caused by the Tate’s viewing platform was actionable.¹1 

The decision is important for two connected reasons. First, it clarifies that private nuisance is concerned with the substantial interference with the ordinary use and enjoyment of land rather than with a closed list of physical intrusions. Secondly, it demonstrates that the common law can protect an aspect of privacy through property rights even though English law does not recognise a general tort of invasion of privacy. The case therefore sits at the intersection of property, tort and privacy law.1 

The judgment is also controversial. The majority placed particular weight on whether the claimant’s use of land and the defendant’s use of land were “common and ordinary”. That approach offers a structured alternative to an open-ended inquiry into reasonableness, but it may also create uncertainty. Lord Sales and Lord Kitchin’s dissent argued for a broader “give and take” assessment of competing interests, including the claimants’ unusual use of their glass-fronted flats and the availability of curtains or screening. The case therefore illustrates an important tension within nuisance law between protection of property rights and the need to accommodate ordinary activities in a densely populated urban environment.1 

Facts of the Case 

The claimants were long leasehold owners of four flats in the Neo Bankside development in central London. The flats were positioned opposite the Tate Modern and were located on high floors, between the thirteenth and twenty-first floors. Each flat contained a “winter garden” with floor-to-ceiling glass windows. Although originally conceived as an enclosed balcony-like space, the winter gardens had become part of the living areas of the flats.²2 

Between 2006 and 2016, the Tate Modern developed the Blavatnik Building, a ten-storey extension to the museum. The top floor contained a viewing gallery designed to provide visitors with panoramic views of London. The gallery attracted very large numbers of visitors. A significant feature of the dispute was the physical proximity between the viewing platform and the claimants’ homes: the relevant flats were approximately 34 metres away. From the south side of the viewing platform, visitors had a direct and largely unobstructed view into the claimants’ living areas.³3 

The problem was not merely that the flats could be seen from a neighbouring building. Visitors actively looked into the apartments. Evidence before the trial judge showed that people took a particular interest in the flats, peering into them and, in some instances, taking photographs. The Tate had placed notices asking visitors not to take photographs and to respect residents’ privacy, but the problem continued.4 

The claimants sought an injunction requiring the Tate to prevent members of the public from observing the flats from the viewing gallery. Their claim was advanced principally in private nuisance. They also relied directly on article 8 of the European Convention on Human Rights, contending that the Tate was a public authority for the purposes of section 6 of the Human Rights Act 1998 and had failed to respect their right to private and family life and their home.5 

At first instance, Mann J accepted that the viewing gallery caused a real and material intrusion into the claimants’ privacy. He nevertheless dismissed the nuisance claim. In his assessment, the Tate’s use of the land was not unreasonable in the locality, and the claimants could take measures such as installing curtains or privacy film. The direct Human Rights Act claim also failed because the Tate was not exercising a public function in the relevant circumstances.6 

The Court of Appeal upheld the result, but on a different basis. It considered that private nuisance could not extend to mere overlooking. It relied upon what it regarded as the weight of existing authority, the difficulty of drawing an objective line between actionable and non-actionable visual intrusion, the role of the planning system, and the view that the dispute was fundamentally about privacy rather than property. The claimants appealed to the Supreme Court.7 

Legal Issues 

The Supreme Court’s decision can be organised around the following questions: 

Issue 1: Whether an interference caused by visual intrusion, without a physical emanation crossing the boundary of the claimant’s land, is capable in principle of constituting a private nuisance. 

Issue 2: If visual intrusion is capable of constituting nuisance, what legal test should be applied to determine whether the interference is substantial and actionable? 

Issue 3: Whether the Tate’s operation of the viewing gallery amounted to a substantial interference with the ordinary use and enjoyment of the claimants’ land. 

Issue 4: Whether the claimants’ use of highly glazed flats, their ability to install curtains or screening, the Tate’s planning permission, or the public benefit of the viewing gallery should affect liability. 

Issue 5: More broadly, whether the common law of private nuisance can protect an interest in privacy through protection of the use and enjoyment of land without transforming nuisance into a general privacy tort. 

Arguments Presented 

5.1 Claimants’ Arguments8

The claimants argued that the Tate’s operation of the viewing platform substantially interfered with their ordinary use and enjoyment of their homes. The central point was that this was not ordinary neighbouring observation. The Tate deliberately operated a viewing gallery from which hundreds of thousands of visitors could look towards London, including directly into the claimants’ living spaces. The scale, frequency and intensity of the observation made the interference qualitatively different from ordinary overlooking.8 

The claimants also rejected the idea that nuisance was limited to physical emanations. They relied on the underlying purpose of the tort: protection of the amenity and utility of land. If noise, smells, smoke, light and other non-tangible effects can interfere with the enjoyment of property, there was no principled reason to exclude visual intrusion merely because the interference is produced by human observation. They further argued that the Tate’s use of the land was exceptional rather than common and ordinary in the locality.8 

In relation to the Human Rights Act, the claimants contended that Article 8 protected their home and privacy. Although the direct claim ultimately failed because the Tate was not a public authority for this purpose, the claimants maintained that privacy values were relevant to the development of the common law.8 

5.2 Tate’s Arguments8 

The Tate argued that overlooking was not actionable in private nuisance and that existing authorities supported that position. It maintained that nuisance was a tort to land and should not be transformed into a general action for privacy. According to the Tate, visual intrusion presented difficult boundary problems because almost any building or public space might permit some degree of observation.8 

The Tate also relied on the ordinary character of its activity and the planning context. The viewing gallery had planning permission and was an important public attraction. It offered legitimate public benefits by providing panoramic views of London. The Tate argued that the claimants had chosen to live in highly glazed properties and could reasonably protect themselves by using curtains, blinds or privacy film.8 

Finally, the Tate contended that the courts should not use the common law of nuisance to create a new privacy right better left to Parliament. The planning system, rather than private nuisance, was said to be the appropriate mechanism for regulating the relationship between modern developments and neighbouring properties.8 

Court’s Reasoning and Analysis 

Lord Leggatt, with whom Lord Reed and Lord Lloyd-Jones agreed, began by restating the nature of private nuisance. Nuisance is a tort to land: the protected interest is not simply the claimant’s personal discomfort but the utility and amenity of the land itself. The majority rejected any rule that a nuisance must necessarily involve a physical emanation crossing the boundary. In principle, an interference may arise “by any means”.9 

The majority identified the core inquiry as whether the defendant’s use of land has caused a substantial interference with the ordinary use of the claimant’s land. “Substantial” sets an objective minimum threshold of seriousness. “Ordinary” operates in two directions. A claimant cannot complain about an interference that results from an unusually sensitive or abnormal use of the claimant’s own land. Conversely, a defendant may avoid liability where the activity is a common and ordinary use of the defendant’s land in the locality.¹10 

This formulation was presented as bringing together familiar nuisance principles. The “reasonable user” or “give and take” principle was treated as a way of describing common and ordinary use. Similarly, the freedom to build on one’s own land was recognised, subject to the limits of nuisance. The majority also reaffirmed that “coming to the nuisance” is not a defence. A claimant does not lose an otherwise valid right merely because the defendant’s activity existed earlier.¹¹11 

Applying these principles, the majority regarded the facts as unusually clear. The constant observation of the claimants’ homes substantially interfered with their ordinary use and enjoyment of their flats. The situation was compared to being placed on display. The Tate’s use was not ordinary because it deliberately invited large numbers of members of the public to stand at the viewing platform and look out across the city, including directly into the neighbouring homes.¹²12 

The majority therefore distinguished the case from ordinary overlooking. A building that happens to permit a neighbour to see another property is not necessarily a nuisance. The claimants’ complaint concerned a specific activity: the Tate’s active invitation to large numbers of people to observe the surrounding area from a platform situated directly opposite the flats. The Court of Appeal had therefore framed the claim at too high a level of generality by treating it simply as a case about overlooking.¹³13 

Lord Leggatt also rejected the suggestion that planning permission defeated or materially weakened the nuisance claim. Planning law serves a different public function from private nuisance. Planning permission regulates development in the public interest; it does not ordinarily authorise an interference with private rights. Public interest could be relevant when determining an appropriate remedy, particularly whether damages should be awarded instead of an injunction, but it was not a defence to liability.¹13 

The majority further rejected the trial judge’s emphasis on self-help measures. Requiring the claimants to install curtains or privacy film would place responsibility on those suffering the interference. Where the defendant’s use was abnormal and the claimant’s use was ordinary, the availability of such measures did not prevent liability.¹14 

The minority reached a different conclusion on the application of the law to the facts. Lord Sales, joined by Lord Kitchin, agreed that visual intrusion could in principle constitute nuisance. Their disagreement concerned the evaluation of reasonableness. They favoured a more nuanced assessment of reciprocal obligations between neighbours. The court should consider the interests on both sides, including the nature of the locality, the claimants’ use of their homes, the degree of vulnerability created by their glass walls, and the availability of ordinary remedial measures.¹15 

The dissent therefore accepted that the Tate’s viewing platform was unusual but did not regard that fact as automatically decisive. Lord Sales also emphasised the institutional role of the trial judge, who had heard extensive evidence and personally visited the site. In his view, an appellate court should be cautious before replacing the trial judge’s evaluative assessment of what was objectionable in the particular neighbourhood.¹16

The division between the majority and minority is consequently not about whether privacy matters or whether visual intrusion is legally possible. Both accepted the first proposition. The central disagreement is about how nuisance should balance competing land uses. The majority sought a more structured test based on common and ordinary use; the minority preferred the traditional idea of reasonable reciprocity and “give and take”.17 

Judgment and Ratio Decidendi 

The Supreme Court allowed the appeal by a majority of three to two. Lord Leggatt delivered the majority judgment, joined by Lord Reed and Lord Lloyd-Jones. Lord Sales, joined by Lord Kitchin, dissented on the application of the law to the facts.¹ The question of the appropriate remedy was remitted to the High Court.18 

The most important legal holding was unanimous: visual intrusion is capable in principle of constituting a private nuisance. The Court did not create a free-standing tort of privacy. Instead, it held that visual intrusion can be actionable where it substantially interferes with the ordinary use and enjoyment of land.18 

The ratio decidendi can therefore be expressed as follows: private nuisance is not confined to physical emanations or other predetermined categories of interference. An interference caused by visual observation may be actionable where it substantially interferes with the ordinary use and enjoyment of the claimant’s land and results from a use of the defendant’s land that is not common and ordinary in the locality. The claimant’s unusually sensitive use of land may affect the assessment, but where the claimant’s use is ordinary and the defendant’s use is abnormal, self-help measures do not necessarily prevent liability.¹19 

The judgment also confirmed important propositions about nuisance more generally. Public interest in the defendant’s activity does not, by itself, prevent liability. Planning permission does not extinguish private rights. “Coming to the nuisance” is not a defence. Most significantly, the decision emphasised the interest protected by nuisance—the use and enjoyment of land—rather than the physical form through which interference occurs.19 

Critical Analysis 

Fearn is significant because it rejects a formalistic boundary around nuisance and reconnects the tort with the interest it is designed to protect. The strongest aspect of the decision is the unanimous recognition that physicality is not a principled prerequisite. Traditional nuisance cases commonly concern physical emanations, noise, smells, smoke, roots or other tangible effects, but the reason these interferences are actionable is their effect on the use and enjoyment of land. If a visual intrusion causes an equally serious interference with that enjoyment, excluding it simply because the mechanism is a human gaze would be difficult to justify.²20 

This reasoning is consistent with the development of nuisance doctrine. The Supreme Court referred to authorities showing that nuisance has never been confined to one physical model. Obstruction, interference with rights to light and unusual visual effects can all produce actionable interference without fitting neatly into the idea of a substance crossing a boundary.²¹ The judgment therefore has the advantage of doctrinal coherence: it asks what interest is harmed rather than whether the interference can be labelled “physical”.21 

The decision is also attractive because it avoids turning historical examples into rigid categories. The Court of Appeal had relied heavily on the proposition that “mere overlooking” was not actionable. The Supreme Court demonstrated that this proposition was too broad. Cases such as Victoria Park Racing and Recreation Grounds Co Ltd v Taylor did not establish a universal rule that sight can never constitute nuisance.²² In Victoria Park Racing, the claimant’s complaint was not an interference with the ordinary enjoyment of its land in the same way as the Tate case. The Supreme Court was therefore justified in resisting an over-expansive reading of older authority.22 

The more difficult question is the majority’s treatment of “common and ordinary use”. The concept offers clarity, but its application is not necessarily as straightforward as Lord Leggatt suggested. Hariharan argues that the majority’s approach may oversimplify the balancing exercise traditionally associated with nuisance.²³ In Fearn itself, the trial judge had made findings suggesting that the claimants’ use of their glass-fronted winter gardens was unusual in the locality and that the operation of a viewing gallery was not itself objectionable. The majority nevertheless treated the claimants’ use as ordinary and the Tate’s use as abnormal.²22 

This creates uncertainty for future courts. “Common and ordinary” is itself an evaluative concept. It depends on the locality, the character of the activity and the relevant social expectations. The majority criticised open-ended reasonableness as lacking sufficiently definite content, but common and ordinary use can also be uncertain. The distinction may therefore be one of language rather than complete substance.23 

Lord Sales’ dissent has considerable force in this respect. His approach recognises that nuisance has historically involved reciprocity between neighbouring landowners. Urban land uses inevitably affect one another. A legal rule that protects one landowner without adequately considering the legitimate activity of another may become too rigid. His “give and take” approach would allow courts to examine the intensity of the interference, the nature of the locality, the claimant’s use of the property and reasonable measures available to reduce the interference.²24 

However, there is also a danger in the minority approach. If the claimant’s ability to install curtains or blinds becomes a significant factor in liability, responsibility may be shifted from the party creating the interference to the party experiencing it. The majority’s refusal to make self-help a decisive factor is therefore defensible. Property rights ordinarily exist to protect landowners against substantial interference by others; requiring a homeowner to modify ordinary use of the home whenever a neighbouring enterprise causes intrusive observation may weaken that protection.25 

The treatment of planning permission is similarly important. The majority’s distinction between public planning control and private rights is doctrinally sound. Planning permission determines whether a development should be permitted in the public interest; it does not necessarily decide whether the resulting use constitutes a private nuisance.² If planning permission automatically defeated nuisance, the private law rights of neighbouring owners could be displaced without a clear legislative basis.25 

Nevertheless, the case raises a genuine concern about public interest. The Tate’s viewing platform served a legitimate social and cultural purpose and was enjoyed by large numbers of visitors. The judgment does not ignore public interest altogether; it indicates that public interest can be considered at

the remedies stage. Yet separating liability from public interest may be difficult in practice. The question whether an activity is “common and ordinary” may itself be influenced by its social function and the character of the locality.²26 

The privacy dimension is perhaps the most far-reaching feature of Fearn. English law has historically lacked a general tort of invasion of privacy. The claimants therefore had to fit their complaint into an established cause of action. The Supreme Court’s approach allows property owners to obtain protection against serious visual intrusion through nuisance. This is a powerful development because it recognises that privacy can form part of the ordinary enjoyment of a home.²27 

At the same time, the protection is structurally limited. Private nuisance generally requires the claimant to have a sufficient legal interest in land. A person watched in a hotel room, hospital bed or another person’s property may experience an equally serious invasion of privacy but may not be able to use Fearn. This means that the decision strengthens physical privacy primarily for property holders rather than creating a general right against surveillance.²28 

The case may nevertheless have implications for modern technology. The reasoning is not confined to the naked eye. If the relevant principle is that nuisance can arise “by any means”, it may potentially apply to surveillance devices, smart doorbells, cameras or other technologies where the interference substantially affects the use and enjoyment of land. Such developments will require careful control because otherwise nuisance could become a general privacy action by another name.³28 

The decision also illustrates the continuing interaction between common law rights and human rights values. The direct Article 8 claim failed because the Tate was not a public authority in the relevant sense. Yet the final Supreme Court reasoning did not need to rely on Article 8. The privacy interest was protected through ordinary principles of property and nuisance law. This is significant because it shows that common law development can respond to contemporary values without necessarily converting every private dispute into a human rights claim.29 

Overall, the majority’s strongest contribution is conceptual: it explains why visual intrusion can be actionable without changing nuisance into a general privacy tort. Its weaker feature is the confidence with which “common and ordinary use” is treated as a sufficiently precise substitute for broader reasonableness. Lord Sales’ dissent highlights that the competing interests of neighbouring occupiers may sometimes require a more contextual approach. The long-term value of Fearn will therefore depend on how lower courts apply the principle without allowing either rigid formalism or unrestricted privacy claims.30 

Conclusion 

Fearn v Board of Trustees of the Tate Gallery is a landmark decision because it changed the accepted understanding of the scope of private nuisance. The Supreme Court unanimously confirmed that visual intrusion is capable of constituting a nuisance, and a three-to-two majority held that the Tate’s viewing platform caused an actionable interference with the claimants’ use and enjoyment of their homes. 

The decision is doctrinally persuasive in moving attention away from the physical form of an interference and towards the interest protected by nuisance. Land can be substantially interfered with even where no physical substance crosses its boundary. The judgment therefore brings visual intrusion within a principled understanding of nuisance rather than creating an artificial exception for the human gaze. 

The decision is less convincing in treating “common and ordinary use” as a simple and decisive test. The concept may itself require difficult judgments about locality, social expectations and competing land uses. Lord Sales’ dissent provides a valuable reminder that nuisance has traditionally involved reasonable reciprocity and accommodation between neighbours. 

The privacy implications are substantial. Fearn provides property holders with a powerful means of protecting physical privacy even though English law has no general tort of invasion of privacy. However, the protection remains tied to an interest in land and therefore does not benefit all persons who experience visual or sensory intrusion. 

The case should consequently be understood as both an expansion and a clarification of nuisance. It expands the possible forms of interference, but it does not create unrestricted liability for observation. The claimant must still establish substantial interference with the ordinary use and enjoyment of land, and the defendant’s use must fall outside the common and ordinary use recognised in the locality. The enduring significance of Fearn will lie in whether courts can preserve that balance while applying the principle to increasingly dense urban environments and new forms of surveillance technology. 

Footnote(S): (OSCOLA) 

1. Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2024] AC 1. 
2. ibid [2], [59], [139]–[140]. 
3. ibid [1]–[2], [141]–[143]. 
4. ibid [5], [142]–[144]; Fearn v Board of Trustees of the Tate Gallery [2019] EWHC 246 (Ch), [2019] Ch 369, [69], [85], [88].
5. Human Rights Act 1998, s 6; European Convention on Human Rights, art 8. 
6. Fearn (n 4) [121]–[126], [164]–[178], [224]. 
7. Fearn v Board of Trustees of the Tate Gallery [2020] EWCA Civ 104, [2020] Ch 621, [74]–[95].
8. Fearn (n 1) [48]–[50]. 
9. ibid [9]–[13]. 
10. ibid [21]–[27]. 
11. ibid [29]–[47]; Bamford v Turnley (1862) 3 B & S 66, 83; Hunter v Canary Wharf Ltd [1997] AC 655.
12. Fearn (n 1) [48]–[50]. 
13. ibid [90]–[93]. 
14. ibid [109]–[126]. 
15. ibid [72]–[88]. 
16. ibid [158]–[169], [209]–[252]. 
17. ibid [253]–[279]. 
18. ibid [130]–[133]. 
19. ibid [21]–[27], [48]–[50], [72]–[88]. 
20. Jeevan Hariharan, ‘The View from the Top: Visual Intrusion as Nuisance in Fearn v Tate Gallery’ (2024) 87 MLR 697, 705–706. 
21. Fearn (n 1) [12]–[13]; see also Guppys (Bridport) Ltd v Brookling (1984) 14 HLR 1; Jolly v Kine [1907] AC 1; Bank of New Zealand v Greenwood [1984] 1 NZLR 525.
22. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479; Fearn (n 1) [96]–[99].
23. Hariharan (n 20) 707–709. 
24. Fearn (n 1) [48], [225]; Fearn (n 4) [196]–[214]. 
25. Fearn (n 1) [158]–[169], [226]–[263]. 
26. ibid [109]–[110], [120]–[126]; Lawrence v Fen Tigers Ltd [2014] UKSC 13, [2014] AC 822.
27. Maria Lee, ‘The Public Interest in Private Nuisance: Collectives and Communities in Tort’ (2015) 74 CLJ 329.
28. Fearn (n 1) [112]–[113], [176]. 
29. Hariharan (n 20) 710–713. 
30. ibid 712–713; Fairhurst v Woodard (Oxford County Court, 12 October 2021, unreported).

Selected Bibliography 

Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2024] AC 1. 

Fearn v Board of Trustees of the Tate Gallery [2020] EWCA Civ 104, [2020] Ch 621. 

Fearn v Board of Trustees of the Tate Gallery [2019] EWHC 246 (Ch), [2019] Ch 369. Hariharan J, ‘The View from the Top: Visual Intrusion as Nuisance in Fearn v Tate Gallery’ (2024) 87 MLR 697. Bamford v Turnley (1862) 3 B & S 66. 

Hunter v Canary Wharf Ltd [1997] AC 655. 

Lawrence v Fen Tigers Ltd [2014] UKSC 13, [2014] AC 822. 

Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479. 

Human Rights Act 1998. 

European Convention on Human Rights, art 8. 

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