On 1 February, judgment was handed down by the Supreme Court in the case of Fearn and others (Appellants) v Board of Trustees of the Tate Gallery [2023] UKSC 4.  

By a majority of 3:2, the Lords have allowed an appeal brought by the residents of a neighbouring block of flats against the Tate Modern, claiming that their privacy has been substantially interfered with by thousands of daily visitors gazing into their living rooms from the Tate's viewing platform at the Blavatnik Building, London.  

In giving judgment, Lord Eggatt said it was "not difficult to imagine how oppressive living in such circumstances would feel for an ordinary person - much like being on display in a zoo."

The Lords overturned earlier decisions of the High Court and Court of Appeal, who they said had made three errors in law. First, the Tate was making an "unreasonable" and "abnormal" as opposed to "ordinary" use of its land. Second, it is no answer to a claim in nuisance to say that the claimants would not have suffered if their property had been of different design or construction. Third, by holding that it was reasonable to expect the claimants to take measures to avoid being overlooked, such as putting up blinds or net curtains, they wrongly placed the burden on the victims to avoid the consequences of abnormal use.

In reaching this decision, the Supreme Court has extended the law of private nuisance (which involves substantial interference with the ordinary use and enjoyment of neighbouring land) to protect against visual intrusion.

But in an attempt to prevent the floodgates on claims involving overlooked neighbours opening too widely, the Lords were careful to point out that the circumstances in which land is used in an unusual way, which gives rise to visual intrusion on a neighbouring property of sufficient duration and intensity to be actionable as a nuisance, are likely to be rare.  

However, given the impact this case could have on the future design of buildings, particularly in the way neighbours might be overlooked, it's easy to see why the Supreme Court's decision is likely to cause a hullabaloo amongst property owners and developers alike.