Landmark Supreme Court ruling against Tate Modern has far-reaching implications

In a remarkable decision, which took well over a year to decide, the Supreme Court has, by a majority of 3:2, held that a claim in private nuisance can be based on visual intrusions and common overlooking. This decision has extended the scope of private nuisance beyond its previously understood limits, and it seems inevitable that various further nuisance claims will now follow.

This was a case bought by some of the residents of the Neo Bankside development in nuisance and under the Human Rights Act 1998. The residents claimed that the Tate’s viewing gallery caused them a nuisance and an infringement of their right to privacy. Their complaint was that they had been subject to an almost daily intrusion from large numbers of visitors to the viewing gallery who would observe, film or photograph residents in their home.

At first instance in the High Court, the residents were unsuccessful. Their claim for privacy failed as the Tate is not a public body. The court also rejected the residents’ claim in nuisance. It found that while overlooking could in principle amount to an actionable nuisance, the residents in this instance had created or submitted themselves to a greater sensitivity than usual. This was said to be due to the design of their flats, which included floor to ceiling windows overlooking the Thames and located directly opposite the viewing gallery, and as such had not established that the Tate had caused them a nuisance. The residents appealed.

The Court of Appeal upheld that decision but disagreed with the High Court’s reasons. In finding for the Tate, the court concluded that there was no cause of action in private nuisance for overlooking and it was for Parliament to decide whether overlooking could be a private nuisance, and not the courts. The residents again appealed.

In a decision that will surprise many, the Supreme Court disagreed with both previous courts, stating that a visual intrusion can be a nuisance and that in these circumstances, the Tate had caused a nuisance to the residents.

The Supreme Court drew a distinction between visual intrusion and someone merely looking at what is happening on their neighbour’s land. The court stated that the key issue in determining whether the Tate had caused a nuisance was whether its use of the viewing gallery was a common and ordinary use of its property (as opposed to a reasonable use). It concluded that it was not. It went on to say that if the Tate had built a block of flats on its land, then that would have been an ordinary and common use of it.

The court held that the sensitivity of the residents’ property to overlooking was not a defence for the Tate to a claim in nuisance but that it may be relevant to the question of the remedy ordered when the case is remitted back to the High Court.

The Supreme Court said that it was no answer to the claim to say that, if the properties were designed differently, the claimants would not have suffered a nuisance or that self-help remedies were available to them eg. putting up curtains. The court drew an analogy with a noise nuisance case and said it was no answer to say that the claimant should wear ear plugs.

While limited to its facts, the judgment could have far-reaching implications into how relationships between neighbours are governed and the law of privacy. The concept of abnormal use is one where the battleground for future cases is sure to lie.

The question of whether the presence of CCTV located on one residential owner’s property and focused directly into a neighbour’s property gives rise to an actionable nuisance is but one obvious example that springs to mind. Is the presence of that equipment abnormal and would the neighbour have a claim in nuisance to prevent such use? It seems unlikely that it will be very long before this issue is again before the courts.