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Fearn and ors v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104

Guy Fetherstonhaugh QC, Elizabeth Fitzgerald and Aileen McColgan, instructed by Herbert Smith Freehills LLP, acted for the successful Respondent, the Board of Trustees of the Tate Gallery, in a case that has settled important issues about the applicability of the common law cause of action for private nuisance to overlooking from one property to another.

The appeal was from the order of Mann J, who dismissed a claim brought by the long leaseholders of four flats in the Neo Bankside development on the South Bank. The leaseholders had sought an injunction requiring the Tate Gallery to close off part of its viewing platform at the Tate Modern, which is on the top floor of an extension known as the Blavatnik Building.

The Court of Appeal, comprising the Master of the Rolls, Lewison LJ and Rose LJ, dismissed the appeal and upheld Mann J’s decision.  The court concluded that there was an overwhelming weight of judicial authority to the effect that mere overlooking is not capable of giving rise to an action in private nuisance. There were other, better, ways of protecting owners of land from overlooking, in particular planning laws and ultimately legislative control.


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