Real Estate Tip of the month: A very “Modern” nuisance – A warning to developers

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Real Estate Tip of the month: A very “Modern” nuisance – A warning to developers

Published 20 March 2023

It’s not often that a technical real estate case makes it into the mainstream news but this is what happened when the Supreme Court recently handed down its long awaited decision in the case of Fearn and Others v Board of Trustees of the Tate Gallery [2023] UKSC 4. The decision reminds developers and property owners that, to avoid a potential claim in nuisance, they must consider the effect of any intended development works on neighbouring properties, particularly when the proposed or intended use of the property may be considered irregular or unexpected.   

The Facts

The claimants in the case were the owners of four apartments in a residential apartment block called Neo Bankside which is advertised as being in an “unrivalled location beside Tate Modern on the South Bank of the River Thames”. The apartments were completed in 2012 and, like many modern residential buildings, were specifically designed and constructed with glass walls to ensure maximum daylight.

The defendant in the case was the owner of the Tate Modern gallery, located in what was previously known as Bankside Power Station, but which was converted to a gallery and opened to the public in May 2000. In June 2016 an extension to the Tate Modern was opened, known as the Blavatnik Building. One of the most talked about features of the Blavatnik Building is a public viewing terrace around the building which offers panoramic views across the London skyline and is open every day of the week and visited by several hundred thousand people every year.

The case centered around the fact that, on the south side of the viewing terrace, visitors can see directly into the apartments belonging to the claimants, which are roughly the same height as the viewing terrace and approximately 30 metres away.

The Case

The claimants objected to visitors to the Tate Modern being able to see directly into their apartments from the viewing terrace and claimed they were frequently subjected to those visitors taking photographs of the apartments and their occupants. They were seeking an injunction or, alternatively, damages.

The claimants claimed that the use of the viewing terrace unreasonably interfered with their enjoyment of the apartments so as to constitute a nuisance, both under common law and under section 6 of the Human Rights Act 1998, and also that it infringed their privacy rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

First Instance Decision

In the first instance, the claimants were not successful and essentially, the Judge ruled that the defendant’s use of its property as a public viewing terrace was reasonable, that the claimants were responsible for their own misfortune by having bought properties with glass walls and also because they could take measures to protect their own privacy, such as installing blinds.    However, the claimants were given permission to appeal to the Court of Appeal, but only in respect of the common law nuisance claim.

Court of Appeal Decision

The claimants were also unsuccessful in the Court of Appeal, although for different reasons than at first instance. The Court of Appeal found that “overlooking”, no matter how oppressive, cannot in law count as a nuisance.

Supreme Court

The Supreme Court found in favour of the claimants by a majority of three to two. It found that a nuisance is a use of land which wrongfully interferes with the ordinary use and enjoyment of neighbouring land.   The interference must be substantial, judged by the standards of the ordinary person. However, even where there is a substantial interference, the defendant will not be liable if it’s doing no more than making a common and ordinary use of its own land and this is to be judged having regard to the character of the locality. The question of whether the use is reasonable or not is irrelevant.

Applying these elements to the facts of the case, the Supreme Court found that:

1. the claimants’ apartments were under near constant observation by the hundreds of thousands of visitors to the        viewing terrace and the ordinary person would consider this level of intrusion to be a substantial interference with the ordinary use and enjoyment of their home; and

2. inviting members of the public to admire the view from a viewing terrace is not a common and ordinary use of the defendant’s land, even in the context of the building’s use and the locality.

It also found that the judgement in the first instance was wrong because of three errors of law:

1. that the judge applied the wrong test by asking whether, in operating the viewing terrace, the defendant was making an unreasonable use of its land when, instead, it should have asked whether it was a common and ordinary use;

2. that the judge considered that the claimants had exposed themselves to visual intrusion by choosing to live in apartments with glass walls. Had the defendant been making an ordinary use of its land, this would have been the correct approach but as the defendant was found to be using its land in an abnormal and unexpected way, it was no defence to a nuisance claim to say that the claimant would not have suffered the nuisance had their property been designed or constructed differently;

3. that the judge held that it was reasonable to expect the claimants to take measures to avoid being seen from the viewing terrace. This wrongly put the responsibility on the claimants to avoid the consequences of the defendant’s nuisance.

In relation to the Court of Appeal’s judgement, the Supreme Court agreed that a person cannot complain of a nuisance simply because their apartment is overlooked by another building.  However, in this case, the defendant invited members of the public to look out from a viewing terrace from which they can look into the claimant’s apartments and the defendant allowed this activity to continue, without interruption, every day of the week. It found that there is no reason why constant visual intrusion of this kind cannot give rise to liability for nuisance.

The case serves as a cautionary reminder for developers and property owners to consider the full impact of development works on all neighbouring properties, not just in terms of the construction of any new buildings or works to existing properties but also their proposed/intended use, and to take expert advice in this regard prior to the commencement of any development works.  Whilst it is accepted that some level of intrusion, particularly in built up towns and cities, will not necessarily amount to a nuisance, anything that is not a common and ordinary use, may well be considered a nuisance and it is not a defence to argue that that the persons complaining of the nuisance can take measures to mitigate the nuisance.

Given the appeal was allowed and the claimants were successful in proving a nuisance, the case has been referred back to the trial judge to determine the appropriate remedy. It is worth noting here that the Supreme Court commented that the rejection of the claim in the lower courts was likely to be due to a reluctance to decide that the private rights of a few wealthy property owners should prevent the general public from enjoying an unrestricted view and from allowing a major museum from allowing such access. However, the Supreme Court was firmly of the view that this is relevant only to the issue of the appropriate remedy and not the question of whether a common law nuisance exists.


Joanna Grech

Joanna Grech

+44 117 366 2942

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