Tate Modern viewing platform held to be a nuisance
As towns and cities become more densely populated and the feeling of “living on top of one another” grows, this is likely to lead to an increase in neighbour disputes, in particular regarding differences in opinion as to what is and is not acceptable within any given area. This can result in claims in nuisance.
What is nuisance?
A common law private nuisance is a use of land which wrongfully interferes with the ordinary use and enjoyment of neighbouring land. To amount to a nuisance, the interference must be substantial, judged by the standards of the ordinary person.
Even where there is a substantial interference, the defendant will not be liable if it is doing no more than making a common and ordinary use of its own land, judged having regard to the character of the locality.
If the Court finds that the use of land amounts to a nuisance, it can award the Claimant damages to compensate for their loss, an injunction requiring the defendant to abate the nuisance and prevent its recurrence, or both.
What happened at the Tate Modern Gallery?
In 2016, the Tate Modern opened a 10-storey extension with a public viewing platform giving panoramic views of London. The viewing platform was open daily, could accommodate 300 visitors at once and attracted around half-a-million visitors each year.
The claimants were the residents of flats located about 30 metres from the gallery. The flats were at about the same elevation as the viewing platform. The flats included winter gardens, with floor to ceiling windows, used by residents as part of their living accommodation. Visitors to the viewing platform had a direct view into their living areas. The claimants alleged that they were the subject of close scrutiny by a significant number of visitors, and had been photographed and observed through binoculars, with images being posted on social media.
The claimants brought a claim seeking an injunction requiring the Tate Modern to close the relevant part of the gallery, or alternatively damages. The claim was brought in common law private nuisance and under Article 8 of the European Convention on Human Rights (“ECHR”).
The High Court’s and Court of Appeal’s Decisions
The claimants were unsuccessful in the High Court and the Court of Appeal, although both Courts gave differing reasons.
The High Court found that the flats had a distinctive appearance, with floor-to-ceiling windows, and in choosing to buy them, the owners had created or submitted themselves to an increased sensitivity to privacy.
The Court of Appeal held that the common law tort of nuisance did not extend to overlooking, and that there was no reason to so extend it in light of Article 8 of the ECHR.
The Claimants appealed to the Supreme Court.
The Supreme Court’s Decision
The Supreme Court handed down its judgment on 1st February 2023. The appeal successful. The key reasons for the findings of the majority were:
- There is no limit to what could constitute a nuisance.
- To be actionable the interference would, viewed objectively, need to amount to a substantial interference with the ordinary use of the claimant’s land.
- Having people constantly looking into someone’s living space could amount to a nuisance.
- Reasonable user of the defendant’s land (i.e. acts necessary for its ordinary use and occupation) would not give rise to liability in nuisance if “conveniently done”.
- In this case, the living areas of the flats were under constant observation. Together with the photography, this amounted to a substantial interference with the claimants’ use and enjoyment of their land.
- Thousands of visitors used the platform each week and it was foreseeable that a significant number would photograph the flats’ interiors.
- Inviting members of the public to look out from the viewing platform was an exceptional use of the gallery’s land, not a necessary or ordinary incident of operating an art gallery.
- It was not a defence to a claim in nuisance to say that a claimant could take steps to avoid the adverse consequences of the defendant’s acts, such as, in this case, the residents putting up blinds.
- Mere overlooking could give rise to liability for nuisance.
- It would be relatively rare for visual intrusion to be of sufficient duration and intensity to be actionable, but developments in technology increase the potential for such claims.
- Public interest was relevant to the remedy granted but not to liability.
- The Supreme Court did not need to consider the Article 8 claim
The case will now be remitted to the High Court to determine whether the claimants should be granted an injunction, damages or both, unless the parties can agree this between themselves.
Comment
Although overlooking is still likely to need to be extreme to amount to a nuisance, as it was in this case, the developments in technology and wide use of social media, coupled with the more innovative building designs increasingly seen in cities, may make this more common in the future. It may also be a point for developers to bear in mind when designing buildings that overlook other properties, particularly residential properties.
A link to the judgement can be found here.
The property litigation team at Rogers & Norton have great experience in dealing with disputes between both commercial and residential property owners, including nuisance claims. For further information, please visit our Property Litigation webpage or to arrange an appointment please contact us on 01603 666001 or by emailing elizabeth.gibson@rogers-norton.co.uk