Tate Modern viewing platform invades privacy of flats, supreme court rules

The Supreme Court judgement in Fearn v Board of Trustees of the Tate Gallery, was published on 1 February 2023 and concludes the landmark case discussing whether the viewing platform at the Tate Modern in London invades the privacy of the luxury flats which can be seen directly into by the public visiting the viewing platform. The Court concluded that the Tate was committing the tort of private nuisance by allowing visitors to attend the viewing deck.

The claim, originally brought in 2017 by 5 flat owners, was based on the common law tort of nuisance. It received heavy coverage in the press, namely because of the risk that a judgement could open the floodgates to thousands of similar claims. The viewing platform in question was originally installed in 2016, after the flats were built, and flat owners complained of members of the public (the Tate receives around 600,000 visitors a year) staring, waving and even taking photos of their flats.

The ruling marks the first time in English law that visual intrusion from neighbouring land can amount to the tort of private nuisance. Depending on how widely or narrowly the courts interpret this decision, developers could use the ruling to build flats or balconies more closely to each other, which in turn could lead to further rafts of legal disputes. However, whether this is likely, given the unique circumstances of the case – remains to be seen. One point to note from the judgment was that the viewing gallery of the Tate was neither essential nor usual for an art gallery and therefore more likely to be an invasion of privacy. The facts of the case are therefore rather unique, and it will be interesting to see whether future litigation will be able to extend this judgment to apply to, for example, two private dwellings.

If you would like to discuss any disputes you may have, please contact the Kuits Dispute Resolution Team.