The law of nuisance allows property owners to apply to court for an injunction to stop activity carried out on neighbouring land and to claim damages for any losses that they have suffered.
The Tate Modern gallery operates an extensive outside viewing platform to allow visitors to enjoy the view over London. The use of the platform was opposed by the owners of a number of neighbouring flats and they applied to for an injunction to prevent the continued use of the viewing platform because they felt that its use by so many visitors compromised their privacy to the extent that it constituted a nuisance.
When the case was first decided in the High Court, the judge refused to grant an injunction and said in his judgment that the occupiers of the flats should have expected some intrusion into their privacy because they had bought flats in central London with floor-to-ceiling glass windows. An appeal by the flat owners was heard in the Supreme Court which decided that viewing from a platform overlooking and in close proximity to a neighbouring property could constitute an actionable nuisance.
Whilst the extensive use of glass in the flats and their central London location did not mean that the Tate had to take extra care to avoid the tenants’ privacy being compromised an injunction would be still granted because the extensive use of the gallery by large numbers of visitors went beyond what it considered to be ‘the necessary or natural consequence of the common and ordinary use and occupation of the Tate’s land’. The Supreme Court did not consider that the installation curtains or the availability of self-help remedies provided a defence to the claim.
This widely-reported case demonstrates that intrusive overlooking can constitute a nuisance if the circumstances giving rise to it go beyond the common and ordinary use of neighbouring land. The exact form of the injunction is yet to be decided and it will be interesting to see if its terms require the permanent closure of the platform or simply a reduction in its operating hours or the numbers of people who can use it.
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