On 1st February 2023, the Supreme Court found in favour of the appellants that the Tate Modern art gallery in London was liable in Nuisance. The appellants in this case were the owners of an adjacent block of flats which stands at approximately the same height above ground level as the glass-walled viewing platform of the famous gallery.
The appellants sought an injunction requiring the Tate Modern to prevent its visitors from viewing their flats from the viewing platform, or alternatively, an award of damages. The claim was based on the common law of Nuisance.
Following an initial dismissal of the claim by the High Court in 2019, and then the Court of Appeal in 2020, the appellants took their case to the Supreme Court. The Supreme Court found in favour of the appellants, on a 3-2 majority.
A Nuisance occurs when land is used in a way which wrongfully interferes with the ordinary use and enjoyment of neighbouring land. For something to amount to Nuisance, the interference must be substantial, and the standard against which “substantial” is judged is that of the ordinary person.
It is important to note that even where there is substantial interference of the land, the defendant will not be liable if it is doing no more than making a “common and ordinary” use of its own land; something which is judged by having regard to the character of the locality of the land, i.e. whether the land is located within an industrial or residential area.
When considering the case against the Tate Modern, Lord Leggatt gave the majority judgment in favour of the appellants. It was held that:
- An ordinary person would consider the near constant level of intrusion of visitors a substantial interference with the ordinary use and enjoyment of the flat owners’ home and the inviting of visitors of the Tate Modern gallery to the viewing platform was not a common and ordinary use of the land;
- The High Court had erred in judgment in asking whether it was an unreasonable use of land as opposed to common and ordinary use of land. The defendant is using their land in an abnormal and unexpected way by allowing their visitors to use the land as a viewing gallery; and
- The Court of Appeal had erred in judgment by deciding that “mere overlooking” cannot give rise to liability for Nuisance. The Supreme Court held that such constant visual intrusion could give rise to liability for Nuisance.
This judgment provides an interesting analysis of the legal test to be applied in such cases, and the position where certain uses of your own property may interfere with a neighbour’s enjoyment of their own property.
If you would like to discuss any of the issues raised in this article, please contact David Low by email at djl@swinburnemaddison.co.uk or by phone on 0191 384 2441.
