Can Visual Intrusion of Land be an Actionable Tort?

We don’t often come across court decisions concerning trespass, but it is an interesting area of law to delve into. In a way, it is similar to the tort of nuisance but more divided. For example, trespass encompasses trespass to the person (assault and battery), false imprisonment (including wrongful arrest) and trespass to goods and conversion. Trespass and nuisance are often seen banded together, which is much more common, but not so common as the tort of negligence, which is the ‘leader of the pack’, so to speak. Historically, trespass is possibly one of oldest of the torts. Why? Because this tort basically applies to land and, historically, land was the most important of things. It does also apply elsewhere (trespass to the person, false imprisonment, and to interference with another person’s goods, for example), but a person’s wealth and status previously depended very much (sometimes entirely) on land. The more land you owned, the higher up the ‘pecking’ order you were placed. So, it was only natural for the landowning class to protect their land and, therefore, protect their standing in society. Today, however, if you mention ‘trespass’ you would automatically think of someone entering another person’s land without permission (either actual or implied).

When I first started studying law, I was totally fascinated by it all, especially the ‘quirky’ bits of it - like, that the Notice on various portions of land (especially in the countryside), reading “Trespassers Will Be Prosecuted” was (in those days) a complete misnomer, because ‘trespass’ is a Tort (civil wrong) and not a crime and only crimes could be prosecuted. The Notice should have read ‘Trespassers will be Sued”. I say “in those days” because in these days (but only in some cases), trespass with the introduction of the ‘Police, Crime, Sentencing and Courts Act 2022, Part 4, s83 et seq’, can also, be a criminal act.

However, we have very recently been flooded with the result of a Supreme Court action for trespass. It hit all the newspapers and TV news coverage and you are bound to have come across it. I mean, of course, Fearn and others v The Board of Trustees of the Tate Gallery, [2023] UKSC 4. The Supreme Court extended the scope of the Tort of Trespass by stipulating that a visual intrusion (not just a physical intrusion) of land (and premises on land) can amount to actionable Trespass. It’s quite a long Judgment, but a readable case summary of it can be found online at:….

So, what was all the fuss about? Well, The Tate Modern Art Gallery, situated close to the River Thames Embankment in London, was, in 2016, considerably extended upwards. On the top floor of the extension was a viewing platform around all four sides, which commanded a 360-degree panoramic view of central London and even further. It has been a great success with the visiting public with over half a million viewers each year. However, prior to the extension being built, and adjacent to it, only some 34 metres away, was a block of ultra-modern residential flats built between 2006 and 2012 with floor-to-ceiling glass panels as walls. The owners of these flats were not amused with this viewing platform, because a significant amount of those half a million visitors seemed to take more interest in looking into the flats on the other side of these glass panels (even through binoculars in some cases), waving to the occupants and taking photographs, which would then sometimes be posted to social media. The flat owners likened their home-life to being on display in a zoo and, collectively, sued the Tate Gallery in common law nuisance, seeking an injunction and/or damages, claiming that the viewing platform interfered with the use and enjoyment of their flats to the extent that it amounted to a nuisance. They also included claims under Article 8 of the European Convention of Human Rights and Fundamental Freedoms (i.e. “everyone has the right to respect for his private and family life, his home and his correspondence”) and s.6 of the Human Rights Act 1988, (basically the right of privacy).

The Claim started off in 1998 in the High Court as a claim for damages and an injunction but failed.  In short, the reasons given were that The Tate Gallery was situated in urban South London in a densely built-up area, where an occupier could hardly expect a great measure of privacy, (as the Judge said; ‘the flats had unconventional floor to ceiling glass walls’),  The Tate’s viewing platform was not inherently unreasonable and the purpose of the viewing platform was not to enable the tourists to gaze into the rooms of the flat owners.

The Claimants (the flat owners) appealed to the Court of Appeal which also dismissed it, finding, in effect, that the Tort of Nuisance did not include protection against ‘overlooking’ by neighbours, likening it to the absence in Tort of a right to light at common law, unless it is obtained by prescription (an ‘easement acquired by long use’).

Undaunted, the flat owners appealed to the Supreme Court which gave its decision earlier this year.  The appeal was successful, and the verdict was an interesting one, falling into two parts: (1) That the Tate’s viewing platform could not be regarded as an ordinary, or indeed common use of the land. The Tate’s principal use is for the housing, care and preservation of art pieces, i.e. it holds a national collection of British art from 1500 to the present day and also international modern and contemporary art. Viewing London from its roof is not part of that use. (2) Near constant visual intrusion of land by a neighbouring property can give rise to liability in nuisance. However, of course, whether a Claimant is successful, as can be seen, will depend on the degree of intrusion. There is a difference between a neighbour looking over your fence now and again to see what you are doing, to (according to the Supreme Court) “inviting a brass band to practice all day and every day in my back garden”!

Author: John Stacey-Hibbert, LLB, LLM.

John worked in the legal field for over 50 years and has a wealth of knowledge and expertise. He practiced as a lawyer in London, lectured law at South Devon College and became the General Secretary of the National Association of Licensed Paralegals.