What’s the latest with the Tate viewing platform?

The Supreme Court recently ruled in Fearn and others v Board of Trustees of the Tate Gallery that the viewing platform at the Tate Modern is an actionable nuisance. This follows earlier judgements by the High Court and Court of Appeal which were in favour of the Tate.

The 2016 extension to the Tate created a viewing platform which was open daily and attracted approximately 500,000 visitors a year. The claimants owned apartments in the Neo Bankside development which is adjacent to the gallery. The flats had been constructed with an indoor balcony that had floor-to-ceiling windows which the owners used as part of their living accommodation and other living areas were also extensively glassed. Visitors to the viewing platform had a direct view into these areas. It was alleged that a significant number of visitors would peer in to the flats with some even taking photographs and posting them on social media.

The Supreme Court’s majority judgement found that the level of intrusion of visitors from the viewing platform to be a substantial interference with the ordinary use and enjoyment of the flat owners’ homes. The gallery as not making an ordinary use of its land and whilst living in a built up area was more likely to involve reduced levels of privacy the use of a viewing platform was ruled to be an abnormal use of the gallery’s land.

The matter has been remitted to the Hight Court in order to determine the remedy which could range from a mandatory injunction to damages being awarded in lieu.

Whilst it will be rare for a visual intrusion to be an actionable nuisance this case may give rise to an increase in claims by neighbours who are overlooked and should be borne in mind by developers.

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