FEARN AND OTHERS v THE BOARD OF TRUSTEES OF THE TATE GALLERY

[2020] EWCA Civ 104, Court of Appeal (Civil Division), the Master of the Rolls, Lewison LJ and Rose LJ, 12 February 2020

Tort – Private nuisance – Whether overlooking can amount to a private nuisance

The claimants sought an injunction to require the defendants to prevent members of the public, or other licensees, from observing the claimants’ flats from certain parts of the viewing gallery of the Tate Modern in London. The claimants were long leaseholders of four flats directly opposite the Blavatnik Building, which is an extension of the Tate Modern and which has a viewing gallery on the top floor, giving visitors a “360-degree panoramic view of central London”. The viewing gallery was estimated to attract between 500,000 and 600,000 visitors every year. Originally, the gallery was open from 10am to 6pm from Sunday to Thursday and from 10am to 10pm on Fridays and Saturdays. These hours were subsequently cut back a little so that viewing closed at 5:30pm from Sunday to Thursday and was restricted from 7pm on Fridays and Saturdays. In addition to public access there were also a number of commercial and internal events held on the viewing gallery in the evenings until 10pm. In the absence of any barrier, the visitors could see straight into the living accommodation of the claimants’ flats. The claimants’ case was that visitors frequently looked into their flats from the viewing gallery. Some took photographs which appeared on social media, while a few used binoculars. For its part, the Tate asked visitors to respect the privacy of neighbours and it instructed its security guards to stop people taking photographs. Nevertheless, the claimants were not satisfied and brought the present proceedings.