Supreme Court Judgment spoils the view from the Tate Modern museum

Background 

Various flat-owners of Neo Bankside apartment buildings in London brought a claim of nuisance against the Tate Modern museum. Visitors to the Tate Viewing gallery’s new Blavatnik Building, which opened as a new extension in 2016, can see directly into the residents’ apartments, with many being photographed and observed through binoculars. 

The High Court dismissed the case, as did the Court of Appeal, on the basis that mere overlooking was not capable of giving rise to a cause of action in private nuisance. However, the Supreme Court has since found in favour of the residents and allowed the appeal.

Supreme Court Judgement

By a majority of 3:2 the UKSC held that inviting members of the public to admire the view was not a common and ordinary use of the Tate Modern’s land and the defendant was therefore liable in nuisance. The Supreme Court did however refer the question of remedy back to the High Court. 

The Court found three errors of law and its findings can be summarised as follows:

1. The correct question to ask when someone is alleged with causing a nuisance is whether they are using the land in a common and ordinary way – not whether it is an unreasonable use. 

2. Choosing to live in flats with glass walls had exposed the claimants to visual intrusion but that is only true if the defendant is making an ordinary use of its land (which it was not in this case).

3. Placing responsibility on the victim (by installing blinds/net curtains) to avoid the consequences of the defendant’s abnormal use of land was an error of law. 

The Supreme Court commented that the degree of overlooking from visitors to the Tate gallery was so extreme it subjected the residents to being “much like being on display in a zoo” and held that there is no reason why constant visual intrusion cannot give rise to liability for nuisance. 

Implications for planning

On first impressions, the outcome appears to cause concern for developers who wish to apply for planning permission to develop in densely populated areas, without fear of compensating conflicting landowners. However, commercial and residential developments for example are unlikely to fail the test of “ordinary” as was the case with the Tate’s viewing gallery. 

The Supreme Court was clear in its judgment that planning laws and the common law of nuisance have very different functions. While a planning authority is likely to consider the potential effect of a new building or use of land on the amenity value of neighbouring properties, there is no obligation to give this factor any particular weight in its assessment on whether or not to grant or refuse planning permission.  

It restates the case of Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822, para 95: “when granting planning permission for a change of use, a planning authority would be entitled to assume that a neighbour whose private rights might be infringed by that use could enforce those rights in a nuisance action; it could not be expected to take on itself the role of deciding a neighbour’s common law rights.”

In other words, an approval of planning permission is not a substitute or alternative for protections provided by the common law of nuisance. 

Contributor: Catherine Losty