Supreme Court win for flat owners in Fearn v Tate

The Supreme Court has today handed down its decision in the case of Fearn & others v Board of Trustees of the Tate Gallery [2023] UKSC 4. By a majority of 3:2 the Court has found the Tate liable in the tort of private nuisance to flat owners overlooked by the viewing gallery of Tate Modern. The claim has been remitted to the High Court for remedy.

Lord Leggatt, giving the judgment of the majority, said the following:

“It is not difficult to imagine how oppressive living in such circumstances would feel for any ordinary person – much like being on display in a zoo. It is hardly surprising that the judge concluded that this level of visual intrusion would reasonably be regarded by a homeowner as a material intrusion into the privacy of their living accommodation.”

After decisions in favour of the Tate by Mann J in February 2019 and the Court of Appeal in February 2020, the result of the hearing before the Supreme Court in December 2021 had been eagerly anticipated by both property and privacy lawyers.

All members of the Court agreed that as a matter of principle it is possible for a private nuisance to exist where residential property is subject to visual intrusion. The decision is a robust reassertion of the protection which the common law gives to the privacy of a home, with no need for any extension of the common law to accommodate the right of privacy guaranteed by Article 8 of the ECHR.

5RB’s Jacob Dean acted for the flat owners, led by Tom Weekes KC and with Richard Moules, both of Landmark Chambers, instructed by Natasha Rees and Sarah Heatley of Forsters LLP.