Room loses its view

The Supreme Court has decided [1] that the use of a viewing gallery on the tenth floor of the Blavatnik Building at the Tate Gallery amounts to the commission of a nuisance in relation to a number of flats in the nearby Neo Bankside development. 

The viewing gallery was visited by an estimated 500-600,000 people a year. Visitors to the viewing gallery were able to look straight into the living areas of the flats and many of them did. Spectators frequently took photographs of the interiors of the flats and sometimes posted them on social media. Lord Leggatt, who gave judgment on behalf of the majority, said that it was “not difficult to imagine how oppressive living in such circumstances would feel for any ordinary person - much like being on display in a zoo.” 

In Lord Leggatt’s view, this was “a straightforward case of nuisance”. He suspected that the “the rejection of the claim by the courts below [ie the High Court and the Court of Appeal] is a reluctance to decide that the private rights of a few wealthy property owners should prevent the general public from enjoying an unrestricted view of London and a major national museum from providing public access to such a view." Lord Leggatt thought that, to the extent this was a relevant consideration, it was to the question of whether the claimants should be granted an injunction (as opposed to damages) and not to the question of liability. That issue was not before the Supreme Court and will now be considered by the High Court (if the case does not settle).

Lord Leggatt’s judgment contains a detailed consideration of the authorities and rules on nuisance claims. Crucially for the outcome of this case, Lord Leggatt said that the first instance judge had been wrong to ask himself whether the Tate had been making unreasonable use of its land. Rather, the relevant question was whether the defendant was making ‘common and ordinary’ use of its land. Here, inviting members of the public to look out from a viewing gallery was “manifestly a very particular and exceptional use of land”. In such circumstances, where the interference with the claimants’ ordinary use and enjoyment of their land is substantial, a nuisance claim will succeed. It did not help the Tate that its use of its land was, at least from its own perspective, reasonable.

Other important points of interest include:

• Lord Leggatt rejected the defendants’ arguments that the claimants were responsible for their own misfortune in that (i) they had bought properties with glass walls; and (ii) they could (but did not) take measures to protect their privacy by, for example, lowering their blinds or installing net curtains. Where a defendant is using land not “in a common and ordinary way”, it is no defence to a nuisance claim to say that the claimant occupies an “abnormally sensitive” property (except, possibly, in extreme cases). Nor is it a defence to say that a claimant could take remedial steps to avoid the adverse consequences of the defendant’s acts; and
• the Court of Appeal had rejected the claimants’ claim on the basis that the tort of nuisance does not extend to cases of overlooking. Lord Leggatt agreed with this to the extent that “overlooking” was a reference to a situation where a building on someone’s land overlooks neighbouring land or where someone is merely looking at what is happening on neighbouring land. However, where (as in this case) the defendant actively invites members of the public to visit and look out from its property, such a high degree of visual intrusion could (and did) amount to a nuisance. 

Comment 

Lord Leggatt’s judgment places the emphasis in nuisance claims squarely on the concept of the ordinary use of land. A claimant cannot complain that the defendant has interfered with the claimant’s use of its land where that particular use is not ordinary. Conversely, no claim will lie against a defendant that is making ordinary use of its own land, provided that it is done with proper consideration for the interests of neighbouring occupiers.

Whilst the headlines generated by the result in this case might concern developers, it is worth noting that the case turned on its unusual facts. The Supreme Court was clear that landowners are (at common law) entitled to build on their own land and that the claimants would have had no grounds for complaint if the Tate had built a block of flats which overlooked the claimant’s property. Rather, it was the particular use to which the viewing gallery was put that meant that the claim succeeded.

[1] Fearn & Ors v Board of Trustees of the Tate Gallery [2023] UKSC 4 (01 February 2023) (bailii.org)