It’s hard to believe that 3 years have passed since the Court of Appeal ruled that the leaseholders of the Neo Bankside development (“Bankside”) could not establish a claim in nuisance against the Tate Modern (“Tate”) by reason of the viewing gallery on its Blavatnik Building (reported by us in 2020 here). Unsurprisingly, the leaseholders appealed that decision to the Supreme Court, and judgment was handed down only this week. The hearing itself before the Supreme Court took place in December 2021, so it appears to have taken over a year for the Lord Justices to reach their decision on the appeal, which itself runs to almost 100 pages, indicating the complexity and sensitive nature of the issue in hand.

For those interested in reading the judgment in full, it can be downloaded via the Supreme Court’s website here. (Spoiler alter, the leaseholders won on appeal!).

Background

For those not familiar with the background, Bankside is a luxury development of commercial and residential units, constructed between 2006 - 2012 and situated on the South Bank beside the Tate. The residential units include a glass-walled living area which was the centre of the dispute with the Tate, after it constructed a public viewing galley on the top floor of the Tate’s Blavatnik Building in 2016. The viewing galley boasted 360-degree panoramic views of London and, unfortunately for the residents of the flats on the south side of the viewing galley, direct views into the flats through their floor to ceiling glass windows.

The leaseholders commenced a claim against the Tate for an injunction, to prevent the use of the south side of the viewing gallery, as it was said to be “interfering with the residents of Bankside’s quiet enjoyment of their properties”, to such an extent that it constituted a nuisance. Whilst the case has been highly publicised as a case about privacy, in fact the case is one of nuisance and the legal principles that apply.

The Court of Appeal’s decision

The Court of Appeal had found in favour of the Tate, and said that the viewing gallery did not amount to a nuisance. The Court decided that, at its heart, the complaints were about an invasion of privacy, rather than of damage to property interests, which is at the centre of nuisance in legal terms. The Court of Appeal’s view was that if ‘overlooking’ were to form part of what could be a nuisance claim, then it was not a decision for the Courts to make. This would have to be reviewed by Parliament and the law changed as it has for other privacy issues, for example with Data Protection laws. The Court went on to say that interests in the locality should properly be protected by planning laws and controls, rather than private nuisance claims after the event

The Supreme Court’s Decision

The legal principles

Giving the leading judgment in the case, Lord Leggatt explored the legal principles which apply to cases of nuisance, which can be summarised as follows :-

• The harm from which the law of private nuisance protects is diminution in the utility and amenity value of land, and not personal discomfort to the persons who are occupying it;

• There is no conceptual limit to what can constitute a nuisance;

• The first question which the court must ask is whether the defendant’s use of land has caused a substantial interference with the ordinary use of the claimant’s land, e.g. the courts will not entertain claims for minor annoyances. The test is objective, judged by the standards of an ordinary or average person in the claimant’s position. Fundamental to this, priority is accorded to the general and ordinary use of land over more particular and uncommon uses;

• It is no answer to a claim for nuisance to say that the defendant is using its land reasonably;

• What is a common and ordinary use of land is to be judged having regard to the character of the locality. Citing the infamous passage of Thesiger LJ in a case dating back to 1879 (Sturges v Bridgman), “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”;

• ‘Coming to’ a nuisance is no defence, e.g. it is not in itself a defence that the defendant was already using his land in the way now complained of before the claimant acquired or began to occupy the neighbouring land. Nor is it a defence that the defendant’s activity did not amount to a nuisance until the claimant’s land was built on or its use was changed;

• Nor is it a defence that the activity carried on by the defendant is of public benefit.

Applying the legal principles

Lord Leggatt said, in fact, that he found it “entirely straightforward” to apply these legal principles to the facts of the case, in deciding that the claim for nuisance would succeed :-

• The original trial judge had already found that the living areas of the leaseholders affected are under constant observation from the viewing gallery for much of the day, every day of the week; that the number of spectators is in the hundreds of thousands each year; and that spectators frequently take photographs of the interiors of the flats and sometimes post them on social media. It is not difficult to imagine how oppressive living in such circumstances would feel for any ordinary person - “much like being on display in a zoo”. It was therefore beyond doubt that the viewing and photography which take place from the Tate’s building cause a substantial interference with the ordinary use and enjoyment of the claimants’ properties;

• No attempt has been made, nor could realistically be made, to stop visitors from looking, sometimes intently, into the claimants’ flats whenever the south side of the gallery is open;

• Inviting members of the public to look out from a viewing gallery is manifestly a very particular and exceptional use of land. It cannot even be said to be a necessary or ordinary incident of operating an art museum.

As the Supreme Court’s decision overturned the decision of the Court of Appeal, which had been to uphold the decision of the original trial judge but for different reasons, Lord Leggatt also looked at how those Courts had misapplied the law :-

• It was a mistake of the original trial judge to ask himself whether the nature of the Tate’s use of its land was ‘reasonable, instead of asking whether it is a ‘common and ordinary use’;

• The original judge placed too much weight on the fact that, originally, the corner area of each flat was conceived by the developers as a sort of indoor balcony, described as a ‘winter garden’, which is separated from the rest of the flat by glass doors. Lord Leggatt said it would not matter whether the ‘winter garden’ was in fact used as part of the living accommodation; 

• It would not be a good defence to a nuisance claim to say that the claimant could take remedial steps to avoid the nuisance, e.g. for the flat owners to install blinds or curtains to their windows;

• Whilst the Court of Appeal was right that the fact that a building or other structure erected on someone’s land overlooks neighbouring land cannot give rise to liability in nuisance, and at common law anyone is free to build on their land as they choose, the Court of Appeal was wrong to categorise the case as one of ‘overlooking’. In fact, the claimants made it expressly clear at the trial that they do not object to the fact that they are overlooked from the Blavatnik Building. What they complain about is the particular use made by Tate of the top floor;

• Insofar as the Court of Appeal said that other measures should be looked at to protect owners in such cases, such as planning laws, this ignored the fact that planning laws and the common law of nuisance have different functions. Planning laws are not a substitute or alternative for the protection provided by the common law of nuisance;

• It was also wrong for the Court of Appeal to say that applying the principles of nuisance to, in effect, a claim about privacy would require an extension of the law. This was merely an application of the law, and in any case the term ‘privacy’ is very broad and encompasses an assortment of more specific concepts and human interests 

Note 2 of the 5 Lord Justices dissented with Lord Leggatt, and would have found for the Tate (albeit for different reasons than decided by the Court of Appeal). But as the majority agreed with him, the leaseholders’ appeal was allowed.

Remedy

Having concluded that the Tate was liable in nuisance, the Supreme Court declined to decide whether an injunction would be granted to prevent future use of the viewing gallery or, instead, to grant damages (as compensation to the affected leaseholders) in lieu of an injunction (for more on injunctions generally, see here). This would be a decision for the lower Court, now the question of liability had been finally decided, if the leaseholders and the Tate could not agree a solution between them. Lord Leggatt did say, however, that whilst the question of community/public benefit is not a defence to a claim for nuisance, it may be relevant to the remedy granted.

Conclusion

Whilst the case is clearly an exceptional one, with the viewing galley amounting to an exceptional use of the Tate’s land, the decision has the potential to cause headaches for developers and landowners. As such, specialist advice should be taken when looking to acquire or develop land which could result in a loss of privacy, or overlooking, to neighbouring land owners, sufficient to amount to a nuisance.

If you have any queries on this week’s Legal Update, please feel free to contact a member of the team on 01435 897297 or info@kdllaw.com.

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