The Supreme Court has determined the Tate Modern’s viewing platform, which provides a direct view into adjacent luxury flats, is a legal nuisance. In the long-awaited judgment of the Supreme Court in Fearn and Others (Appellants) v Board of Trustees of the Tate Gallery (Respondents), the Supreme Court overturned the decisions of two lower courts following a six-year legal battle. The owners of luxury flats adjacent to the Tate Modern have established that the viewing platform built by the museum which provides a direct view into their flats is a legal nuisance.

The parties will need a further hearing at the High Court to establish the appropriate remedies, but the case represents a landmark decision on the principles of nuisance by “visual intrusion” and due to the Court’s comments on public interest.

Facts

In 2016, the Tate Modern opened an extension to their existing property, a ten-storey structure, with a viewing platform on the top floor. While boasting panoramic views of London, the viewing platform also allowed visitors (hundreds of thousands per year) to see directly into the adjacent flats, which are comprised almost entirely of glass walls. Visitors to the viewing gallery area are able to look into the claimants’ flats, take photographs and view the Appellants and their flats with binoculars.

The Appellants sought an injunction against the Tate Gallery in nuisance, which would prohibit visitors from certain areas of the viewing platform, on the basis that overlooking unreasonably interfered with their use of their property.

What is private nuisance?

Private nuisance is an unlawful interference with a property owner’s use or enjoyment of their land.

It involves either an interference with the legal rights of an owner, or interference with the amenity of the land, and the right to use and enjoy it.

There are three main types of nuisance: (1) nuisance by encroachment on a neighbour’s land; (2) nuisance by direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land. The latter type of nuisance can be caused by noise, smoke, smell, or dust.

Initial decision

The trial judge rejected the claim for an injunction. Although he found that the extent of viewing into the claimants’ flats was considerable (and that this could, in principle, amount to a nuisance) he found there was no nuisance in this case. His main reason was that the Tate’s use of its top floor as a viewing gallery was, in his view, reasonable. In addition, he found that the claimants were the authors of their own misfortune for having bought properties with glass walls, and they had failed to mitigate the adverse effects by lowering their blinds or hanging net curtains.

Court of Appeal Judgment

The Court of Appeal agreed with the trial judge in terms of outcome and rejected the appeal. However, it disagreed with his reasoning. Instead, the Court of Appeal considered that, despite the hundreds of years in which there has been a remedy for causing nuisance to an adjoining owner’s land, and the prevalence of overlooking in urban areas, there has been no reported case in this country in which a claimant had been successful in a nuisance claim for overlooking by a neighbour. There have, however, been cases in which judges have decided and expressed the view that no such cause of action exists.  Accordingly, the Court found that overlooking could not amount to a nuisance.

Supreme Court Judgement

The Supreme Court, in a landmark (3 to 2 majority) decision, overturned the decision of the lower courts.  The Court found that the Tate Modern’s use of the viewing gallery gives right to a liability to the Appellants in nuisance. Following an assessment of the scope of private nuisance which will undoubtedly operate as a future “gold standard” to courts and practitioners, the court highlighted that nuisance can be caused by any means – there is no limit to what can constitute a nuisance – and that in this instance, there was a clear presence of nuisance.

In particular the Court found:

• The trial judge erred in asking whether the Tate Modern’s use of land is reasonable as opposed to whether it is a common and ordinary usage (and use as a viewing gallery was held not to be).
• This led the trial judge placing the wrong emphasis or asking the wrong question about the fact that the flats were glass-fronted (meaning they were sensitive to use). This may have been a valid argument had the adjacent building been a similar glass fronted flat, as opposed to a purpose-built viewing gallery.
• It is not a good defence to a nuisance claim to say a party can take remedial steps to avoid the consequences of the perpetrator’s acts. The Appellants should not be expected to mitigate the consequences  of the Tate Modern’s “special use”.
• The Court of Appeal was wrong to suggest a visual intrusion cannot be an actionable nuisance and the authorities supported this.

End of the Journey?

A Supreme Court decision is usually the final word, but in this instance, the Court decided that it was not able to determine to what remedy the Appellants are entitled as this was not in issue before the Supreme Court.  If the parties cannot reach an agreement then there will be a further hearing to decide the appropriate remedies (the real issue will be whether to grant an injunction or damages).  Watch this space to see how this case reaches its conclusion.

Public Interest

A section of the leading judgment concerned the issue of public interest, with the Court expressing concern that the lower courts had been influenced by a reluctance to decide that the rights of a few wealthy private individuals should prevent the public enjoying unrestricted views of London.  The Court’s judgment is a reminder that public interest concerns are relevant in nuisance claims but should not be a factor in determining liability rather than in deciding on the remedy once liability is established.

The Hamlins Real Estate Disputes team has expertise in both commercial and residential matters. We seek to obtain the best outcome possible for every client, no matter how big or small the issue may be. If you would like to find out more about how Hamlins can help you, please get in touch.