Fearn v Board of Trustees of the Tate Gallery

The claimants, owners of flats in the Neo Bankside development, brought a claim for private nuisance against the Board of Trustees of the Tate Gallery for the visual intrusion into their flats from the Tate Modern's public viewing gallery. The Court of Appeal found that the trial judge had applied the law incorrectly, but dismissed the appeal on the ground that overlooking, however oppressive, does not constitute a nuisance. The claimants appealed to the Supreme Court, which found that the Court of Appeal was right to hold that the trial judge had misapplied the law but wrong to decide that the law of nuisance does not cover a case of this kind. The Supreme Court held that the viewing and photography which take place from the Tate's building cause a substantial interference with the ordinary use and enjoyment of the claimants' flats, and that the operation of a viewing gallery is not necessary for the common and ordinary use and occupation of the Tate's land. The Supreme Court held that the claimants' claim should succeed and remitted the case to the High Court for further consideration of the remedy.