Background and the Decision
The majority of the Supreme Court re-asserted the law of nuisance, moving away from the focus on privacy law which was seen in the Court of Appeal decision. It is important to note from a legal perspective that this was not a privacy law decision, despite what has been stated in the media.
The claimants own flats in a block adjacent to the Tate Modern (if you have visited the Tate, you will know which ones). The flats have glass walls and sit at the same height as the Tate’s viewing platform, opened in 2016 as part of the construction of the Blavatnik Building. At the time of the first instance decision in the High Court in 2019, hundreds of thousands of visitors would visit the viewing platform each day and look into the flats, wave at the residents, take photographs and videos and post them to social media.
The claimants sought an injunction against the Tate to prevent visitors from looking into their flats from the viewing platform or alternatively, damages, based on the common law of nuisance.
The claimants were unsuccessful in both the High Court and the Court of Appeal but the Supreme Court found in favour of the claimants, asserting that the viewing platform amounted to a nuisance. The Supreme Court did not rule on the appropriate remedy however, remitting the case back to the High Court to determine the appropriate remedy.
Does this change the law of nuisance?
A nuisance is, simply, a use of land which wrongfully interferes with the use and enjoyment of neighbouring land. The interference must be substantial, in the eyes of a reasonable person. It is not a defence to say that the land is being used reasonably or in a way which benefits the wider public. It is a defence, however, if the land is being used for a ‘common and ordinary’ use, depending upon the character of the area.
With the claimants’ flats being exposed to hundreds of thousands of people on a daily basis, this intensive, constant public surveillance was determined to be a substantial interference with the enjoyment of their homes, constituting a nuisance. The operation of a viewing platform as part of an art museum in a built-up area of south London was not a ‘common and ordinary use’ of land, so there was no defence for the Tate in this regard.
This is not new law. The Supreme Court found that the lower courts had simply misapplied the law. The High Court focused on whether the Tate’s use of land was ‘unreasonable’ rather than whether the viewing platform was a ‘common and ordinary use’. The Court of Appeal did not consider overlooking could amount to a nuisance and focussed more heavily on the claimants’ Article 8 right to privacy instead. Mere overlooking, if part of the common and ordinary use of land will not be a nuisance, but this is clearly to be distinguished from the construction and use of a viewing platform inviting intrusion by the public on a daily basis into neighbouring flats.
Remedies
Interestingly, the Supreme Court found that the decision would not have been different even if the flats had been constructed after the Tate’s viewing gallery. That would undoubtedly be relevant on the question of remedies – whether damages or an injunction would be awarded.
It will be interesting to see if the High Court award damages or an injunction against the Tate. The Court has discretion to award either but a key consideration is whether damages can be seen as an adequate remedy to the flat owners for having the enjoyment of their flats infringed so openly for so long. Recent court decisions in respect of nuisance have shown the courts to be more willing to grant injunctions than previously (highlighted in the Supreme Court decision of Beaumont Business Centres v Florala [2020]). Bearing in mind the viewing platform has been closed since March 2020 and has not reopened, it is an opportune time for the Tate to begin repurposing or adapting the platform in advance of a further hearing.
Client Alert 2023-031
