The Supreme Court (“the SC”) has this week provided a final determination on the protracted battle between the Tate Modern Gallery (“the Tate”) and residents of the Neo Bankside development flats (“the Residents”).
The dispute arose when the Tate opened up its viewing gallery to members of the public, offering stunning panoramic views of the capital. Unfortunately for the Residents, it soon became apparent that visitors were using the vantage point to gain a peak into their expensive flats, which are located just 34 metres away and sport outer walls consisting almost entirely of glass.
The Residents brought an action for private nuisance against the Tate. The claim was dismissed at first instance by the High Court (“the HC”) for reasons summarised in our blog post here. In subsequent proceedings at the Court of Appeal (“the CoA”), the Residents once again succumbed to defeat, as discussed by our team here.
But it was to be third time lucky for the Residents, who have now secured a judgment in their favour at the SC by majority of three to two. The court reiterated the “oppressive” intrusion suffered by the Residents, who were the subject of “constant observation” from “hundreds of thousands” of viewers each year, who photographed their homes and even posted content on social media. It was said that living in these conditions was akin to being “displayed in a zoo”.
The SC dismantled the judgments of the lower courts and found for the Residents for the following reasons:
- The HC was wrong to consider whether the Tate’s use of its land was reasonable. The correct question was whether it was common and ordinary. On this point, it was said that the Tate’s use of its land, described as “inviting several hundred thousands of visitors a year to look out at a view from your building”, was not an ordinary use of land “by any stretch of the imagination”. The principle of “give and take”, whereby one is expected to tolerate a degree of nuisance in exchange for the same courtesy, could not therefore absolve the Tate.
- The Tate could not rely on highlighting the “sensitivity” of the Residents’ flats by reference to their glass exteriors, for this would occasion “hopeless uncertainty” if the specific design and features of a property could offer a defence to a claim for nuisance. In any event, glass walls – which are of course a common aspect of modern architecture – could not be considered a “sensitive” feature in the context of nuisance so as to offer a defence for respondents.
- The Residents were also not under any obligation to protect their privacy via a self-help remedy such as the installation of blinds or curtains (as previously suggested), for such an obligation does not arise where the nuisance is occasioned by the defendant’s unusual use of land. In this instance, as the viewing gallery was determined to be an abnormal use of land, the Residents’ could not be expected to provide their own remedies.
- Although the SC and CoA were largely in agreement, their respective judgments differed on the key issue of “overlooking”. Whereas the CoA did not consider “overlooking” to be captured by nuisance, and therefore dismissed the claim, the SC held that the claim was not concerned with “overlooking” at all. Instead, the claim concerned the Tate’s improper use of its land, which facilitated and encouraged members of the public to look inside the Residents’ flats.
- In any event, the SC rejected the CoA’s contention that “overlooking” or “visual intrusion” could not give rise to a valid claim in nuisance. The SC also found that there were no sound policy reasons for preventing “overlooking” from constituting nuisance.
- Furthermore, it was said that public interest arguments in nuisance claims are only relevant when considering the appropriate remedy. They have no bearing on the question of liability.
- As to remedies, the SC deferred this matter back to the HC.
Perhaps the key takeaway for similarly impacted residents elsewhere is that overlooking and visual intrusion can give rise to a claim in nuisance where this may amount to an improper use of the neighbouring land. This finding could potentially give rise to other private nuisance claims being pursued in similar circumstances.
Should you need advice in relation to a private nuisance dispute, or indeed any property or trusts related dispute, please do not hesitate to contact our partner Shams Rahman or any member of the Edwin Coe Property and Trusts Litigation team.
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