Tate Modern – an “ordinary” decision?

The Court held that a viewing platform is not an “ordinary use” of the Tate’s land. Accordingly, the Tate was held to be liable to the Appellants in nuisance.

The Supreme Court has, perhaps surprisingly, overruled the Court of Appeal and found that the viewing platform of the Tate Modern Gallery does cause an actionable nuisance to the owners of luxury flats opposite.

What does this mean for nuisance claims?

On the one hand, the simplicity of the test now approved by the Supreme Court centering around the question of what is “ordinary”, might be attractive.

On the other, the Court has not made it clear what it may consider “ordinary” or “out of the ordinary”.

This has potential to open new lines of litigation as to what constitutes “ordinary” use.

It is likely that this case is a unique scenario that will be distinguished in future, given the Tate’s use of their land as a viewing tower is both exceptional and uncommon.

What will likely give developers pause is the question of design.  With planning authorities being ever keen to encourage public amenity in new developments – viewing platforms, sky gardens and similar being more common – developers may feel some concern that they may be directed to design things in their schemes which might give rise to at least the threat of a nuisance claim.

This case may, therefore, be something that planning authorities as well as developers and their financiers will need to consider.

Background

In 2016, the Tate Modern (the Tate), a public art gallery in London, opened a new ten-storey extension called the Blavatnik Building. The building has its own viewing platform, which, whilst offering panoramic views of London, is directly opposite and very close to a block of luxury flats with some parts of the walls being full length glass.  The flat owners did not like having the many visitors looking into their flats and posting pictures of them on social media.

The Appellants first brought legal action in 2017, seeking an injunction requiring the Tate to prevent members of the public from viewing their flats from the relevant part of the viewing gallery walkway, or in the alternative, an award of damages, in the law of private nuisance.

Both the High Court and the Court of Appeal dismissed the residents’ claims – albeit for different reasons.

What did the Supreme Court find?

The Supreme Court found fault with the application of the law of nuisance.  Whereas the Trial judge in particular had focussed on whether Tate’s use of their land was “unreasonable” – the Supreme Court (in a 3-2 split decision) held that this was the wrong test.

Finding that the test for whether activity of land could amount to a nuisance was (so said the majority) a simpler test that one of “unreasonableness” the Court found that the starting point for nuisance was whether the use of land could be said to be “beyond the ordinary”.

Two neighbours who use their land in an “ordinary” way should have no complaint against each other and should be free to use and develop their land in an “ordinary” way within the principle of “live and let live”.

However, where a user takes the use of his or her land outside what is “ordinary” then the gateway to liability in nuisance will be passed.

The Supreme Court found that the Appellant’s flats were under constant observation by many thousands of visitors to the viewing platform, and as a consequence, found that this level of intrusion was a substantial interference with the ordinary use and enjoyment of their homes. The Tate’s use of their land, that is by inviting members of the public to admire the view from the viewing platform, was on the other hand found to be abnormal and not a common and ordinary use of their land, despite operating in a built-up area in central London.

The Court considered that the issue of the unique design of the flats (with full length glass walls) was not relevant to the question of liability for nuisance – though might be when it came to the question of remedy.

Similarly, the court emphasised that, if Tate had been making ordinary use of its land, for example by office or residential usage - the Appellants could not have complained about any intrusion they might have felt because of the unique design of their flats.

Put another way, in the same vein as the court reasoning – if a landowner has property that is being used, or is perhaps designed “out of the ordinary” they may not complain that this leaves them feeling vulnerable to the activities on adjacent land where the use is “ordinary”.

Finally, the Supreme Court accepted that the Court of Appeal had been right to say that there could be no nuisance merely by one property “overlooking” another – but found that this was not a case about overlooking, but about large numbers of visitors physically looking into the flats.

This was different and was capable of being a nuisance.
 

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