On 1st February 2023, a landmark decision was made by the Supreme Court in London relating to the law on nuisance, but what could this mean for property developers and planning authorities?

In 2017, five owners of four luxury flats in the Neo Bankside building in London brought a claim of private nuisance against the Tate Modern Museum. Nuisance is defined as a wrongful interference with a person’s enjoyment of rights over land. This must go beyond simply ‘personal discomfort’ and must actually affect the person’s ability to be able to use and enjoy the land, and beyond this, the interference must be unreasonable and substantial.

The apartment owners alleged that a viewing platform installed by the Tate Modern on the top of its building, which is at a distance of 34 metres from their apartments, allowed hundreds of thousands of visitors a year to peer into their living areas and was a ‘significant and oppressive intrusion of their privacy’.

Previously, the High Court and Court of Appeal had dismissed the apartment owners’ claim ‘on the basis that mere overlooking does not fall within the tort of nuisance’. It was also highlighted that the owners had knowingly bought apartments in central London with floor to ceiling glass windows and they could have taken preventative measures, such as lowering their blinds and installing privacy screens.

In February 2023, the Supreme Court sided with the Neo Bankside residents on further appeal. This groundbreaking judgment is likely to have wide-reaching implications, as it effectively confirms that there is no limit as to what can constitute common law nuisance. It also specifically emphasised that the burden should not be on the claimant to have to take steps to lessen the effect of a nuisance caused by their neighbour. Therefore, it was irrelevant whether or not the owners had taken any measures to counteract the issues posed by the viewing platform.

Despite the Tate Modern adopting numerous measures, such as installing signs to warn visitors to respect the privacy of the Neo Bankside residents and employing security guards to prevent people taking photographs or using binoculars to look into the apartments, this was not considered to be adequate by the Supreme Court. The mere act of looking in was deemed a sufficient enough intrusion to constitute a nuisance and the placement of the viewing gallery meant visitors were still able to look into the apartments if they chose to. The visual intrusion was also deemed to be substantial on the basis that the viewing gallery was open for a significant part of the day, every day of the week.

The Supreme Court determined that in the lower courts, there was too much importance placed on public benefit when looking at whether the Tate was liable for nuisance. Instead, they should have taken public interest into account only after liability for nuisance had been established. The appropriate place for consideration of public benefit is in deciding what remedy to grant, such as compensation to the residents instead of an injunction to prevent the viewing platform from operating entirely. The case has now been returned to the High Court to decide an appropriate remedy.

Experts have warned this ruling could effectively open the floodgates to new areas that were previously thought of as unactionable. We are also yet to see the ramifications of this ruling for property developers and planning authorities, especially in urban areas where there is an increased risk that property owners will be subject to at least some level of visual intrusion by other property owners, businesses and public spaces in the vicinity. Although the Supreme Court was keen to stress that widening the scope of common law nuisance is an issue for Parliament, this is something that we may see in the coming years depending on how wide the courts decide to interpret the recent judgment.

Jill Annett (jill.annett@mckees-law.com) is a partner in commercial law firm McKees (www.mckees-law.com) and specialises in disputes.