A private function

Two neighbouring iconic developments in central London – the NEO Bankside and the Tate Modern’s Blavatnik Building – have come under scrutiny in recent years in respect of the relationship between them, and whether the use of one constitutes a private nuisance to the other.

NEO Bankside is a development of 217 high-end apartments, which was designed by Rogers Stirk Harbour + Partners and completed in September 2012. The Blavatnik Building is an extension to the Tate Modern, and opened in June 2016 with a viewing gallery that is free to the public – one that looks directly into some of the NEO Bankside apartments.

The dispute concerning the two developments has been in the courts since 2017 and the Supreme Court judgment is important as the result was not anticipated.

Law on private nuisance

Private nuisance at common law is the use of land which interferes with another person’s right to enjoy their own land. The interference must be objectively substantial and exhibit a use of land which is not common or ordinary when judged in the context of the locality.

The Supreme Court’s judgment against the owners of the Tate Modern is significant as it has extended the scope of what will constitute private nuisance.

Facts of the case

The Tate Modern opened a 10-storey extension in 2016, the Blavatnik Building, which included a viewing gallery providing panoramic views of London. However, 34 metres from the viewing gallery, is the NEO Bankside development, which contains a series of distinctive sheer-glass-walled apartments. The approximately 500,000 annual visitors to the Tate’s viewing gallery have a direct view into these apartments.

The owners of four of the NEO Bankside apartments launched a claim of private nuisance against the Tate for interference with the enjoyment of their properties caused by visual intrusion from the viewing gallery. The claimants especially noted the significant numbers of visitors and that their apartments had been observed through binoculars and photographed, with some images being posted on social media.

Decisions of the courts

While the High Court and the Court of Appeal rejected the claim, the Supreme Court held that the Tate’s owners had committed a private nuisance.

The Court of Appeal stated that “mere overlooking” could never amount to private nuisance, but the Supreme Court judgment considered that “visual intrusion” could amount to private nuisance in certain circumstances.

The decision was not unanimous, however, as only three of the five judges held the majority.

Majority judgment

The majority view, as stated by Lord Leggatt, considered that there is no limit to what can constitute private nuisance. While the law of private nuisance seeks to strike a balance between the conflicting rights of neighbouring landowners, anything that materially interferes with the enjoyment of rights in land could qualify.

It is not hard to see how being subjected to constant observation would interfere with your right to enjoy your property. Applying this principle to the facts, the majority held that the Tate’s use of its land was a substantial interference with the apartment owners’ use of theirs.

Camera phones and the dissemination of photographs on social media added a further dimension of interference, as being filmed and photographed is more intrusive than mere observation with the naked eye.

The majority did, however, declare that a substantial interference may not lead to liability in private nuisance where the defendant is simply making a common and ordinary use of its land.

Applying the ‘ordinary use’ principle, the majority held that inviting members of the public to use a viewing gallery was not an ordinary but an exceptional use of the Tate’s land, as opposed to the ordinary use of visitors to an art gallery.

The Tate’s owners had sought to rely on the principle of give and take established in the 1862 case of Bamford v Turnley, which states that: “Those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action… a rule of give and take and live and let live.”

However, the judges rejected the arguments pleaded by the Tate’s owners in reliance on this principle, deciding that it was incorrect to suggest that:

• the apartment owners induced the nuisance by purchasing distinctive, sheer-glass residences near the Tate Modern, and
• installing blinds and curtains would stop the interference.

Therefore, the majority concluded that the Tate’s owners were liable to the apartment owners in private nuisance.

Remedy – injunction, damages or both?

Due to the ruling, the case has been sent back to the High Court, where one or both of the following remedies may be imposed:

• an injunction against the Tate to stop the use of its land that is causing nuisance – for example, an order to close the south side of the viewing gallery, and/or
• an order for the Tate’s owners to pay damages to the apartment owners to compensate for the nuisance.

The remedy commonly imposed by courts for private nuisance is an injunction; the legal burden is on the defendant to show why damages should be awarded instead. The loss to the public and waste of resources that the ruling of an injunction would cause will probably encourage the High Court to award damages.

Lord Neuburger anticipated that significant sums might be awarded to the apartment owners; it is highly likely, however, that a private settlement will now be reached out of court and the amount paid to the apartment owners will remain unknown.

Minority judgment

The minority judgment is relevant as the commentators did not expect the Supreme Court to rule in favour of the apartment owners.

The minority judgment agreed that, in principle, visual intrusion could constitute a private nuisance, but it disagreed with the majority’s approach to deciding whether there was a private nuisance in the immediate case.

While the majority focused on whether the Tate’s use of its land is ordinary, the minority believed that the courts should instead consider principles of reciprocity and compromise between neighbours and apply an objective approach informed by the character of the relevant locality.

The minority determined that applying such an approach in this case would result in a ruling that there had been no nuisance.

Impact of the case

The case is unlikely to result in an increase in private nuisance claims from aggravated neighbours complaining of visual intrusion. However, the Supreme Court gave its own indication of the wider impact of its judgment: “The circumstances in which land is used in an unusual way which gives rise to visual intrusion on a neighbouring property of sufficient duration and intensity to be actionable as a nuisance are likely to be rare. The potential for such claims has, however, been markedly increased by developments in technology.”

The facts of the Tate case are unique, and there are few city-centre art galleries with a viewing platform in the UK. Nonetheless, roof terraces are becoming more popular, and buildings are being built in increasing proximity to each other as land prices increase. The principles endorsed and the analysis of intrusion made capable by technology in the Tate case are likely to be applied in future private nuisance disputes.

Therefore, developers, building owners, town planners, architects, and policymakers will need to be mindful of the decision in the Tate case to mitigate the risk of causing an actionable nuisance.

Arguments that neighbours should use curtains or blinds to protect their privacy, or that neighbours induced the nuisance by purchasing apartments vulnerable to overlooking, are less likely to be persuasive in the future.

Developers should also consider the overlapping planning history of the two developments in the Tate case. Initial planning applications were submitted in 2006 and construction started in 2011 for both projects. The developers of the Tate Modern’s extension and the NEO Bankside apartments were also in discussions throughout planning and were aware of the possible issue posed by the viewing gallery. Indeed, the Tate originally planned for its extension to be an all-glass structure akin to the NEO Bankside apartments.

Despite the productive dialogue between developers, the overlooking issue was not definitively resolved, and left the Tate’s owners more vulnerable to the risk of future NEO Bankside tenants bringing a claim in private nuisance.

It is also of note that the relevant planning authority did not consider the overlooking issue at the planning stage of either development. It is now more likely that planning authorities will consider this in its decisions.

Conclusion

Following the Tate case, it is now established law that visual intrusion can constitute a private nuisance.

While the facts of this case are unique, the judgment poses new considerations for developers – principally, how to reduce the risk of facing private nuisance claims concerning visual intrusion. It should be assessed whether intrusive features are part of the common and ordinary use of the building. If the use is exceptional, there is a risk aggravated neighbours may use the Tate case as grounds for a private nuisance action.