This week, the Supreme Court found in favour of flat owners who complained that a viewing platform constructed on a neighbouring art gallery created a ‘nuisance’ by allowing visitors to see directly into their homes.
The dispute dates back to 2016, when the Tate Modern on the South Bank in London opened a 10-storey extension known as the Blavatnik Building, which has a viewing platform on its top floor that offers panoramic views of London. The claimants in the case own flats in an apartment building, Neo Bankside, neighbouring the Tate Modern that are at around the same height as the viewing platform and have walls constructed mainly of glass, allowing visitors to see directly into the claimants’ flats.
Their claim fell flat in the High Court and the Court of Appeal, but now the Supreme Court has ruled in their favour, albeit with two of the five judges dissenting, leaving the Tate with nowhere to turn. Its fate will now be decided by the High Court – the Supreme Court declined to make a judgement on that point – but what are the implications for developers?
The outcome of the case rests, in part, with the idea that the Tate was causing a nuisance by effectively encouraging visitors to look out from the platform and directly into the claimants’ homes. This much was uncontroversial.
At the time of the original trial, the viewing platform was open every day of the week and was visited by an estimated 500,000 to 600,000 people each year. The trial judge found that a very significant number of visitors “display an interest in the interiors of the claimants’ flats”.
The Supreme Court agreed. “A nuisance is a use of land which wrongfully interferes with the ordinary use and enjoyment of neighbouring land,” it said. “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. What constitutes an ordinary use of land is to be judged having regard to the character of the locality, eg. whether it is a residential or an industrial area.”
That latter comment points to the second key point – the fact that the court took the view that the viewing platform did not constitute “common and ordinary” use of the land. “The benefit of land use to the wider community may be considered in deciding what remedy to grant and may justify awarding damages rather than an injunction, but it does not justify denying a victim any remedy at all,” it said.
The court concluded: “There are hundreds of thousands of spectators each year and many take photographs and post them on social media. The ordinary person would consider this level of intrusion to be a substantial interference with the ordinary use and enjoyment of their home.
“By contrast, inviting members of the public to admire the view from a viewing platform is not a common and ordinary use of the Tate’s land, even in the context of operating an art museum in a built-up area of south London.”
Landmark moment
According to James Souter, partner at Charles Russell Speechlys, the judgment is a “landmark moment extending the law of nuisance to protect against visual intrusion”. He adds: “Against all odds the flat owners have won the right to safeguard against an invasion of privacy in their homes.”
Tim Fogarty, a partner at Winckworth Sherwood, says he was initially surprised by the ruling but adds that it made perfect sense to him once he had read the statement produced by Lord Leggatt, one of the five judges. “I think he felt satisfied that there was a substantial interference with the flat owners use of their flats,” he says.
“All the judges were content that the flat owners were simply using their flats as flats in the normal way. Leggatt concluded that the key question here was not whether it was reasonable for the Tate to have a viewing gallery, but whether that was an ordinary and common use of their building. Leggatt said he doesn’t consider that it’s an ordinary and common use of an art gallery to have a 10th floor, 360 degree viewing platform.”
It is for that reason that legal experts believe that the precedent set by the Tate case will only have a limited impact on future development. “Looking ahead, it will be interesting to see whether this case triggers more property owners to make similar claims where they feel they are being over-looked,” says Souter.
“The Supreme Court has made it clear that the circumstances where the new law will be applied will be rare, but it did highlight issues around CCTV and sharing of images from camera phones on social media.”
Indeed, Leggatt went out of his way in his judgement to say that the same conclusion would not have been reached had the complainants been talking about people looking into their homes from an office or another block of flats. After all, looking out of the windows from such buildings is clearly both common and ordinary.
“The fact that the interiors of flats with glass walls can be seen is something the owners have to put up with, in accordance with the rule of give and take,” says Fogarty. “This case turned on the degree of visual intrusion from this slightly unusual feature of an art gallery. The singular difference here was that the Tate gets half a million or so visitors a year and hundreds of thousands of people go into the viewing gallery, which creates this problem of the visual intrusion.”
Thomas Freeman, a senior associate solicitor in the real estate disputes team at Irwin Mitchell, agrees, although he adds that won’t stop some people who feel their privacy is being invaded by neighbouring developments trying their luck. “In the short term, the case is likely to be misunderstood as having been decided on the grounds of privacy,” he says.
“There are likely to be many people concerned about the use of neighbouring land or its proposed development who will seek to rely on it. However, the case concerned the law of nuisance and not privacy. The judgment is clear that the ordinary use of land, including for ordinary instances of overlooking or development, will not constitute a nuisance.”
He adds: “In the longer term, it is the question of ‘ordinary use’ which is likely to generate satellite litigation. It is difficult to assess ordinary use by reference to locality in highly developed mixed areas, or where new uses are to be introduced to an area or are developed incrementally over time.”
So, while many were surprised by the Supreme Court’s ruling, there is a consensus that the judges – three out of five of them, anyway – reached the right conclusion. What’s more, there is also broad agreement that the victory for the flat owners is not the disaster for developers some had feared.
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