header-logo header-logo

02 February 2023
Issue: 8012 / Categories: Legal News , Property
printer mail-detail

People in glass houses stone’s throw from Tate win nuisance claim

The Supreme Court’s Tate Modern decision restates the law of nuisance to include visual intrusion and could provoke a wave of ‘copycat cases’, lawyers say.

The court held Tate liable in nuisance to the owners of flats with glass walls situated 34 metres from the gallery’s ten-storey Blavatnik Building extension, in Fearn & Ors v Board of Trustees of the Tate Gallery [2023] UKSC 4.

The extension, opened in 2016, includes a viewing platform from where thousands of visitors can see directly into the luxury multi-million-pound flats, watch the residents and take photographs, unless the residents close their curtains. The claimants, four flat owners, sought an injunction or, alternatively, an award of damages.

The court allowed the appeal by a 3-2 majority and remitted the case to the High Court to decide the remedy. It found nuisance comprised ‘substantial’ interference caused by the use of land that was not ‘ordinary’, and that the viewing platform was not an ordinary use of Tate’s land, even in the context of a central London art museum.

Lords Sales and Kitchin, dissenting, agreed with the majority that visual intrusion could create a private nuisance but found the trial judge was entitled to find the use of the flat owners’ land was other than ‘ordinary’, and it was possible for them to take normal screening measures to limit the effect of the intrusion.

Claire Lamkin, real estate partner, Kingsley Napley, said: ‘The judges emphasised the rare circumstances in this case.

‘However, it will no doubt precipitate a wave of copycat cases where people feel a property development near them is highly intrusive. And to that extent builders, architects, developers, town planners and policy makers will need to check their plans carefully from now on to minimise the risk of future similar litigation.’

Thomas Freeman, senior associate at Irwin Mitchell, said: ‘The case is important because the Supreme Court has re-stated the law of nuisance.

‘In the longer term, it is the question of “ordinary use” which is likely to generate satellite litigation. It is difficult to assess ordinary use by reference to locality in highly developed mixed areas, or where new uses are to be introduced to an area or are developed incrementally over time.’

The High Court previously held Tate’s use of its land was reasonable, the flats were exceptionally sensitive due to their glass walls and the owners could shut their blinds or draw their curtains. The claim was also dismissed at the Court of Appeal, which found ‘mere overlooking’ was not nuisance.

Laura Odlind, real estate partner at Mishcon de Reya, said the Supreme Court ruling could potentially have an impact on the use of security cameras positioned to overlook part of a neighbouring property.

Commenting on the claimants’ decision to base their case on nuisance rather than privacy, Edward Machin, senior lawyer in Ropes & Gray, said it was a ‘refreshing approach’ and ‘a good reminder that other legal arguments are available and may be better suited’.

Issue: 8012 / Categories: Legal News , Property
printer mail-details

MOVERS & SHAKERS

Harneys—Maggie Kwok & George Weston

Harneys—Maggie Kwok & George Weston

Harneys senior leadership appointments

Freeths—Keith Browne & Jim Jordan

Freeths—Keith Browne & Jim Jordan

Freeths strengthens London Construction and Engineering practice with two strategic senior hires

Anthony Collins—Laura Moss

Anthony Collins—Laura Moss

Anthony Collins announces strategic hire to deepen skills base in the social business sector

NEWS
Official figures showing record criminal court backlogs provide further evidence ministers should abandon controversial plans to scale back access to jury trials, the Bar Council has said
A naturist walking naked on a public footpath near Macclesfield did not have his human rights breached when a police officer arrested him, the High Court has held
CILEX has urged the government to maintain the Access to Justice Foundation’s (AJF’s) status as the only charity entitled to undistributed damages and settlements from opt-out collective actions
The Ministry of Justice is running a £4m national television and social media channel campaign to recruit thousands more magistrates
More than 100 under-18s were prosecuted in homicide and attempted homicide cases involving joint enterprise last year, Crown Prosecution Service (CPS) figures show
back-to-top-scroll