What was the background?
About 5½ million people visit the Tate Modern each year and, of them, it is estimated between 500,000 and 600,000 visit the viewing gallery, with a limit of 300 people at any one time. To the Appellants’ misfortune, visitors to the viewing gallery can see straight into the living areas of their flats. The trial judge found that a very significant number of visitors display an interest in the interiors of the Claimants’ flats. Some look, some peer, some photograph, some wave. Occasionally binoculars are used. Many photographs have been posted online.
The Appellants sought an injunction requiring the Tate to prevent its visitors from viewing their flats from the viewing platform, or alternatively, an award of damages. Their claim was based on the common law of nuisance.
The claims were initially dismissed by the High Court ([2019] EWHC 246 (Ch)) as it was held that although intrusive viewing from a neighbouring property can in principle give rise to a claim for nuisance, the intrusion experienced by the claimants did not as the Tate’s use of the top floor as a public viewing gallery is reasonable and found that the claimants were responsible for their own misfortune by knowingly purchasing indiscreet properties opposite a public viewing platform.
The Court of Appeal ([2020] EWCA Civ 104) also dismissed the appeal on the ground that “overlooking”, no matter how oppressive, cannot in law count as a nuisance. Following this judgment, the Appellants appealed to the Supreme Court.
What did the court decide?
The Supreme Court handed down judgment on 1 February 2023 and by a majority of 3 to 2 they allowed the appeal. Lord Leggatt, with whom Lord Reed and Lord Lloyd-Jones agreed, gave the majority judgment. In this they found the following.
(a) Principles in the tort of private nuisance:
It was observed, in short, that a nuisance is a use of land which wrongfully interferes with the ordinary use and enjoyment of neighbouring land. 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, e.g., whether it is a residential or an industrial area.
It was discussed that it is no answer to a claim for nuisance to say that the Defendant is using its land reasonably or in a way that is beneficial to the public. In deciding whether one person’s use of land has infringed another’s rights, the public utility of the conflicting uses is not relevant. 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.
(b) The application of the law in this case
The Court discussed the trial Judge’s findings that the Claimants’ flats are under practically constant observation by visitors to the viewing platform. 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. The Court found that the Tate is therefore liable to the Claimants in nuisance. The Court heard no argument on the appropriate remedy and so remitted the case to the High Court to decide this question.
(c) The errors of the trial Judge
The Court held that the trial Judge reached the wrong conclusion due to the following 3 errors of law:
- The Judge applied the wrong test by asking whether, in operating the viewing platform, the Tate was making an ‘unreasonable’ use of its land, instead of asking whether it was a common and ordinary use.
- The Judge considered that the claimants had exposed themselves to visual intrusion into their homes by choosing to live in flats with glass walls. It is right that, if the Tate had been making an ordinary use of its land, the claimants could not have complained about any visual intrusion resulting from the design of their flats. But where, as here, a Defendant is using its land in an abnormal and unexpected way, it is no answer to a claim in nuisance to say that the Claimant would not have suffered a nuisance if their property had been of different design or construction.
- The Judge also held that it was reasonable to expect the Claimants to take measures to avoid being seen from the viewing platform, such as putting up blinds or net curtains. This wrongly placed the responsibility on the victim to avoid the consequences of the Defendant’s abnormal use of their land.
(d) The error of the Court of Appeal
The Court of Appeal recognised that the Judge had made these errors but decided that the claim must nevertheless fail because “mere overlooking” cannot give rise to liability for nuisance. It is true that a person cannot complain of nuisance because their flat is overlooked by another building or because people on the top floor of that building can look into their homes and see inside. However, that was not the complaint made in this case. The Claimants’ complaint is that the Tate invites members of the public to look out from a viewing platform from which they can, and many do, peer into the claimants’ flats and allows this activity to continue without interruption for most of the day every day of the week. The Court held there is no reason why constant visual intrusion of this kind cannot give rise to liability for nuisance and, on the facts found by the trial judge, it does in this case.
What are the practical implications of this case?
This Judgment will be of significant interest not only to those in the legal industry, but to public as a whole as it clarifies intrusive viewing of land can constitute an actionable interference in nuisance.
It also removes uncertainty about the extent to which individuals can be held responsible for intrusions of privacy when in the comfort of their own homes. Lord Leggatt said in the ruling: “the Claimants cannot be obliged to live behind net curtains or with their blinds drawn all day, every day to protect themselves from the consequences of intrusion caused by the abnormal use which the Tate makes of its land.” It followed that this is because ‘[a]n important aspect of the amenity value of real property is the freedom to conduct your life in your own home without being constantly watched and photographed by strangers.’
The Supreme Court decision had been anticipated as potentially enshrining tenants’ rights to privacy and potentially opening the floodgates to thousands of neighbour disputes. Although this Judgment has the potential to invite more claims by those who believe intrusive viewing of their land amounts to nuisance, the Supreme Court made clear that the facts and outcome of the current case are exceptional in nature.
It is important to note that this is not the end of the story. The claim will now be remitted to the High Court for a determination on whether an injunction should be granted requiring the Tate to obscure part of its walkway to prevent any overlooking of Neo Bankside; and whether damages of any kind will be allowed, either in lieu of or in addition to an injunction.
This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email enquiries@sharpepritchard.co.uk
