The View from the Top: Visual Intrusion as Nuisance in Fearn v Tate Gallery

In Fearn v Board of Trustees of the Tate Gallery the UK Supreme Court unanimously held that visual intrusions are in principle actionable under the tort of private nuisance. On the facts, a narrow 3:2 majority found that the Tate Modern was liable for the operation of its viewing gallery where the public could see into the claimants’ flats. This note argues that the court's landmark determination on the scope of nuisance is a welcome one insofar as it decentres physical interference and aligns the operation of the tort with its normative underpinnings. More dubious is the majority's emphasis on the ‘common and ordinary use’ of land, an uncertain concept which is likely to generate difficulties in future cases. Finally, the note considers some of the broader implications of Fearn , reflecting on the public reaction to the decision and considering what the case means for privacy protection in particular.