Most of us will be aware that The Tate Modern Art gallery opened a viewing platform for visitors to see the city skyline views of London and that the owners of the flats opposite were far from impressed and brought a claim in nuisance to the High Court.
The flat owners’ claim was dismissed and so went to the Court of Appeal where it was also dismissed because, in the Court’s view, ‘overlooking’ was not enough to amount to a nuisance.
A nuisance results from the actions of a person using their land in a manner where it prevents a neighbouring property from being able to use and enjoy their land in an ordinary way. The interference to the land must be a substantial amount when compared to the ordinary standard of the use of the land.
The Supreme Court Decision
On further appeal, the Supreme Court, whilst agreeing that ‘overlooking’ cannot result in nuisance, stated that this was a case of visual intrusion. This is due to the Tate gallery having opened a viewing platform which thousands of visitors could look straight into the living areas of the flats. This prevented the owners of the flats from being able to enjoy any ordinary use of their land because of the continuous interference that the viewing platform caused.
Crucially, the viewing platform was not considered as an ordinary use of the Tate’s land as an art gallery, therefore the appeal was allowed on the grounds that the Tate had caused a private nuisance.
What impact will this have on developers?
The decision of this case, is, quite rightly going to be a concern for developers, particularly in highly populated areas where overlooking into neighbours is difficult to avoid. So, is it to be expected that neighbouring properties will now object to developments and raise the issue of privacy more often?
When developing in certain locations, visual intrusion may need to be reviewed (alongside rights of light and planning law) to avoid any claims being made in nuisance and having to compensate neighbours.
However, a claim being allowed for visual intrusion is not overly common and a successful claim depends very much on the individual facts of the case and, the use of the land – both that being developed and the neighbouring property. Therefore, there is some reassurance for developers. It is doubtful that commercial or residential developments will be found to be using their land beyond the ordinary.
Although, for particular concern would be buildings and attractions with roof top views such as The Tate Modern that encourage visitors to overlook neighbouring properties.
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