The Impact of Fearn v Tate Modern Gallery on Future Nuisance Claims

The viewing platform at the Tate Modern Gallery was once considered one of London’s best free viewpoints. Over recent years, however, it has caused controversy with neighbours.

Between 2006 and 2012, four blocks of flats were built on the south bank of the River Thames. These modern flats were almost entirely surrounded by floor-to-ceiling glass panels. Starting in 2006 and finishing in 2016, the Tate Modern built an extension – the Blavatnik Building – with a viewing platform installed on the top floor.

While boasting panoramic views of London, the platform also allowed hundreds of thousands of visitors a year to see directly into the adjacent flats. The tenants complained that visitors to the viewing platform frequently took photographs of their living quarters, posting these on social media. Some even viewed the interior with binoculars.

The appellants sought an injunction against the Tate Modern in nuisance to prohibit visitors from certain areas of the viewing platform, on the basis that ‘overlooking’ unreasonably interfered with the use of their property.

The court at first instance and the Court of Appeal refused to grant an injunction.

The Supreme Court ruling

In what will be considered a landmark decision, the Supreme Court overturned the decision of the lower courts. It held that the viewing platform allowed Tate Modern visitors to cause a nuisance to the adjacent flat owners.

Following an assessment of the scope of private nuisance, the court highlighted that nuisance can be caused by any means: there is no limit to what can constitute a nuisance. The Supreme Court said that public utility is not a defence to a claim of nuisance. Its only relevance is when considering what remedy to grant. Public utility “may justify awarding damages rather than an injunction, but it does not justify denying a victim any remedy at all”.

The constant observation by visitors to the viewing platform constituted a level of intrusion which the ordinary person would consider to be a substantial interference with the ordinary use and enjoyment of their home. Moreover, the Tate Modern’s invitation to the public to admire the view from a platform is not a “common and ordinary use of … land” – notwithstanding consideration of its location in London as an art museum.

Remarking on the Court of Appeal’s conclusion that the appellants’ claim could not succeed on the basis of “mere overlooking”, the Supreme Court viewed the complaint as qualitatively different.

It was the invitation of the public to an area where they can peer into the claimants’ flats – and allowing this activity most of the day, every day of the week – that gave rise to a significant intrusion that constituted a nuisance.

What does the decision mean for future claims?

The significance of this decision is profound. Practitioners need to carefully consider the reasoning and adapt the advice given to clients on the potential influence it may have on future claims of nuisance, as well as the wider impact this decision will have when advising developers and/or aggrieved neighbours.

Ultimately, the courts identified failings from several institutions:

  • in the commercial decisions taken by the Tate Modern
  • to a lesser extent, in the commercial decisions taken by the developers of the flats infringed upon
  • by the public authorities who permitted the construction and development of both premises in a similar timeframe, without taking into consideration the impact they might have on each other

Planning authorities may need to assess the potential impact of causing an overlooking nuisance on future developments before granting planning permission to avoid this type of situation from reoccurring. There is no guarantee that lack of foresight will be tolerated by the courts in future.

It is uncertain in the short term how the reasoning in this judgment will be applied by the courts.

Practitioners should be braced for novel arguments concerning whether:

  • there is a risk of an overlooking nuisance
  • the function is necessary for the common and ordinary usage of the land, and
  • there was adequate consultation from surrounding neighbours

There is also the question (raised by the first instance judge) whether remedial and mitigating steps could have been taken by both sides to reduce the intrusion and inconvenience suffered by the tenants.

The Supreme Court decided it would be unreasonable to place such a burden on the tenants.

It is not difficult when thinking about the wider implications to see why that conclusion was reached – although one wonders whether the same outcome would have been achieved had the design and construction of the flats taken place materially after the Tate’s extension.

Finally, it is worth considering what parliament will make of this ruling. The judgment was given by a narrow 3:2 majority. An issue that weighed on the dissenters, as well as the decision of the Court of Appeal, was a desire not to encroach on parliamentary sovereignty by creating new law. If the floodgates are opened too wide, parliament may well take steps to intervene and create new legislation relating to public overlooking.


Priority Visa Service Resumes For New Family Visa Applications

With effect from 20 February 2023, the Priority Visa Service has now resumed for new Marriage and Family Visa applications submitted from outside the UK.

This change means that individuals applying for the following settlement visas can now receive a faster decision on their applications:

  • Spouse
  • Civil Partner
  • Unmarried Partner
  • Fiancé(e)
  • Proposed civil partner
  • Child
  • Adult dependent relative

Standard Processing Times for New Marriage and Family Visa Applications

The published service standard for deciding an application from outside the UK to settle in the UK as the spouse, partner or family member of a British citizen or settled person is currently 12 weeks.

However, the Home Office has, for some time, been advising applicants that standard applications for family visas submitted from outside the UK may take up to 24 weeks to process whilst it prioritises Ukraine Visa Scheme applications.  This has led to many families being separated in different countries for extended periods whilst waiting for a decision on their UK visa applications.

In a positive development, following a reduction in the backlog of Ukraine Visa Scheme applications, the Home Office has recently announced that, from 3 April 2023, standard marriage and family visa applications will start to be processed within 60 working days.

This means that, from 3 April 2023, individuals applying for a UK visa as the spouse, partner of family member of a British citizen or settled person via the standard service can expect to receive a decision on their UK visa application within 12 weeks.

Priority Visa Service Resumes For New Family Visa Applications

For those who don’t want to wait until 3 April 2023 to apply for a UK marriage or family member visa, or for whom 12 weeks still sounds like a long time to wait for a decision, the resumption of the Priority Service for new family visa applications means that there is now an additional option to receive a quicker decision.

The Home Office is currently advising that new marriage and family visa applications submitted from outside the UK using UKVI’s Priority Service will be processed within 30 working days or 6 weeks from the date of the appointment at the visa application centre.  This is considerably longer than the 5 working day Priority Service that is available for other immigration routes, but still an improvement on the standard processing time for a partner or family visa application submitted from outside the UK.

The Priority Service is optional and a £573 fee must be paid in addition to the standard visa application fee.

Applicants should note that not all applications are suitable for the Priority Service. If an application is not straightforward then it may not be possible for the Home Office to meet the 30 working day service standard.  If this is the case, then the application will still be put at the front of the queue at every stage of the decision-making process, but a decision within 30 working days will not be guaranteed.  Our immigration lawyers can advise you on whether your family visa application is likely to be suitable for the Priority Service.

Applicants may also wish to keep in mind that the “Keep My Passport When Applying” service that is generally available to applicants when applying for a UK visa from outside the UK is not compatible with UKVI’s Priority Service.  Therefore, if you apply via the Priority Visa service from outside the UK you will not be able to use the “Keep My Passport When Applying” service.

Contact our Immigration Solicitors

If you have any enquiries about the UK immigration law or visa applications, please contact our immigration solicitors on 020 8240 9018 or submit the enquiry form on our website.

Employment Law: What to Expect in 2023

There are 10 developments that might shape the employment law landscape this year and beyond.

1. Retained EU Law

The Retained EU Law (Revocation and Reform) Bill could result in the most significant shake-up of employment law in a generation. If brought into law, all retained EU law must be expressly transferred into UK law by 31 December 2023, or it will cease to be law in the UK. The Government may yet extend the deadline for implementation to 23 June 2026, the 10-year anniversary of Brexit. Little is known about the Government’s intentions for employment-related law. This could impact familiar legislation such as the Working Time Regulations 1998, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), and Agency Worker Regulations.

2. Flexible Working

The Government has recently published its consultation response on “Making Flexible Working the Default”, giving its support to the Employment Relations (Flexible Working) Bill. Amongst other things, the Government supports the following measures: giving workers the right to request flexible working from day one of employment, removing the present 26-week qualifying period; requiring employers to consult with their employees before rejecting their flexible working request; allowing employees to make two flexible working requests per year; and requiring employers to respond within two months.

3. Family Leave and Pay

The long-anticipated Employment Bill first mentioned in December 2019 appears to have dropped off the Government’s agenda. Instead, elements of the original Bill are found in several Private Members’ Bills which have received Government backing:

  • The Protection from Redundancy (Pregnancy and Family Leave) Bill extends the rights of protection from redundancy for women during or after a protected period of pregnancy. It is thought this will cover the moment they inform their employer in writing of their pregnancy to six months after they have returned from maternity leave. Enhanced protection is also proposed following a return to work after shared parental leave and adoption leave.
  • The Carer’s Leave Bill entitles employees who are providing or arranging care to one week’s unpaid leave per year and protection from dismissal or detriment as a result of having taken time off.
  • The Neonatal Care (Leave and Pay) Bill provides parents with a new right to paid time off if their baby requires neonatal care.

It is also expected that the Miscarriage Leave Bill and the Fertility Treatment (Employment Rights) Bill will progress, providing a right to paid bereavement leave and paid time off for fertility treatment respectively.

4. Protection from Harassment

The Worker Protection (Amendment of Equality Act 2010) Bill includes a new proactive duty on employers to take reasonable steps to prevent sexual harassment of their employees and makes employers liable for harassment of their employees by third parties.

5. Strikes

The second half of 2022 resulted in strikes across many sectors including rail, mail, and nursing and that pattern continues at the start of 2023. On 5 January 2023, the Government announced proposed ‘strike laws’ to ensure minimum service levels for fire, ambulance and rail services, with the possibility that other sectors such as health and education could face similar action if they do not reach voluntary agreements. A copy of the draft Bill and information on its progress can be found here.

6. Human Rights

On 22 June 2022, the government introduced the Bill of Rights Bill 2022-23 to Parliament. The Bill aims to repeal the Human Rights Act 1988 and to create a new domestic human rights framework. Although it was shelved by Liz Truss’ government, it is reported that it is back on the agenda and will continue its parliamentary passage in 2023, though the Government has not committed to a parliamentary timetable.

7. “Fire and Re-hire”

In light of the mass dismissals involving P&O Ferries, in March 2022 the Government announced that a new Statutory Code on dismissal and re-engagement (so-called “fire and re-hire”) would be published. A draft copy of the Code of Practice was published this week (on 24 January 2023), and the government is consulting on it for 12 weeks until 18 April 2023. The draft Code sets out employers’ responsibilities when seeking to change contractual terms and conditions, including requiring employers to “consult with employees in a fair and transparent way”. It will also allow tribunals to apply an uplift of up to 25 per cent on employee compensation where the code applies and has unreasonably not been followed. The consultation document and information on how to respond can be found here.

8. Data Protection

The Government has announced its intention to replace the UK GDPR with a British data protection system in the form of a Data Protection and Digital Information Bill and a further update is expected in 2023. In the meantime, the ICO is currently undertaking two consultations (closing this month), one about monitoring workers and one about processing workers’ health data. These are part of an ongoing project to replace the ICO’s employment code of practice with new guidance to help employers understand their responsibilities under data protection law. The aim is to create a one-stop hub where employers and employees can find answers to their data protection questions.

9. The Future of Work

On 1 September 2022, Matt Warman MP published his response to the Prime Minister’s Future of Work review. He invited the Government to consider four areas in greater detail: artificial intelligence and automation, skills, place and flexibility, and workers’ rights. It is understood that Government departments will now consider the issues he raised in more detail, though no timeline has been proposed.

10. Holiday pay

Hot on the heels of the landmark decision of Harpur Trust v Brazel, the Government has launched a consultation on calculating holiday entitlement for part-year and irregular hours workers. In a nutshell, the Government is proposing a reversal of the conclusions reached in Harpur Trust and, if implemented, would permit employers to revert to pro-rating holiday for part-year workers based on a 12.07 per cent method.

Another holiday pay claim was also heard in the Supreme Court at the end of last year, and in 2023, we anticipate the outcome of Chief Constable of the Police Service of Northern Ireland v Agnew. This Supreme Court was asked to decide whether historic holiday pay claims can be brought where there are gaps of three months or more between periods of underpayment if the underpayments can be linked to form a series. An employee-friendly ruling could result in employers facing a greater exposure to historic underpaid holiday pay.

We Provide Conveyancing Services!

We are very pleased to announce that we provide conveyancing services and now can act for potential sellers, buyers and developers in residential and commercial conveyancing transactions! 

We look forward to supporting your conveyancing transactions smoothly and hassle-free.

If you have any enquiries in relation to conveyancing, please get in touch with our coneyancing solicitors on 020 8240 9018 or via the enquiry form on our website.

HMRC to Impose Controls on Tax Repayment Agents

HMRC has published its finalised policy on enforcing higher standards on tax advisors, including reforms to the currently unregulated repayment agent sector.

The changes follow a consultation in June 2022, which drew attention to abuses by some repayment agents. The sector is currently unregulated and complaints have been reported that taxpayers who appointed an agent have found it difficult to withdraw from their agreement if they became dissatisfied or wanted to manage their own affairs.

As a result, legislation is to be introduced to stop the use of binding assignments of income tax repayments that could only be cancelled  if the agent and taxpayer both agreed to do so. In future, taxpayers who choose to use a repayment agent to reclaim overpaid tax and want the rebate to be sent to the agent will have to make a nomination to HMRC, which they can cancel at any time. Moreover, repayment agents will have to register with HMRC and be more transparent with clients, including mandatory pre-contractual disclosure forms and a 14-day ‘cooling-off’ period for customers.

The new transparency requirements are included in the revised HMRC Standard for Agents, which specifies that agents will have to provide more evidence that a claim has been made with the customer’s consent.

Hong Kong Bill Introduces Tax Concessions for Family Offices

The Inland Revenue (Amendment) (Tax concessions for family-owned investment holding vehicles) Bill 2022 will exempt family-owned investment holding vehicles (FIHVs) and their portfolios of special purpose entities from tax on transactions carried out by a Hong Kong-based family office. The provision is similar to that already in effect under the unified fund exemption regime.

The exemption includes profits earned incidental to the qualifying transactions, subject to a 5 per cent threshold. A minimum asset value of HKD240 million also applies. The tax relief is also available to special purpose entities in proportion to the FIHV’s beneficial interest. An FIHV can elect for the tax concessions by making an irrevocable election in writing.

One or more family members must hold at least 95 per cent of the direct and indirect beneficial interest in the family office during the whole of the tax year. It need not be incorporated in Hong Kong but its central management and control must be exercised there at all times.

To satisfy the ‘substantial activities’ requirements, a qualifying FIHV must have at least two full-time qualified employees in Hong Kong, and must incur at least HKD2 million of annual operating expenditure in Hong Kong for carrying out the investment activities for the year.

Outsourcing of investment activities by the FIHV to the family office is permitted, provided that it is not for circumventing the substantial activities requirement.

The Bill also contains specific anti-avoidance provisions, including anti-round-tripping provisions and a main purpose test. Profits from investments in certain private companies by FIHVs or special purpose vehicles will not be eligible for the tax concessions if they fail the immovable property test, the holding period test or the control and short-term asset test.

The measure is currently under review by the Legislative Council of Hong Kong.

Contact our Private Client Solicitors on 020 8240 9028 or via the enquiry form on our website for more information and advice on family office.