After six years of legal battle, the Supreme Court has ruled that a “constant visual intrusion” of praying eyes is nothing other than a “straightforward case of nuisance”.
In 2016 the Tate Modern Art Gallery opened a public viewing gallery. This provided not only panoramic views of London, but also a birds-eye view into the lives of residents from the adjacent luxury glass-fronted flats. Much to their annoyance.
In the widely publicised dispute, residents of the Neo Bankside development brought a claim in nuisance, seeking an injunction to prevent the Tate’s visitors from peering into their homes.
The initial High Court ruling in 2019 found in favour of the Tate and said that:
In principle, visual intrusion from a neighbouring property could potentially give rise to a claim in nuisance.
The claimants were exceptionally sensitive that they could have prevented the overlooking by adapting their homes by installing blinds or curtains.
The Court of Appeal concluded that the law of nuisance is not capable of providing a cause of action arising from “mere overlooking”.
Both the High Court and Court of Appeal dismissed the residents claim, but for different reasons.
The Supreme Court Judgment
In a 3-2 decision given by Lord Leggatt, the Supreme Court overturned the Court of Appeal’s decision. The main points the majority relied on were that:
- Nuisance is the “substantial” interference with rights or the enjoyment of land.
- There is no conceptual limit as to what can constitute a nuisance.
- The law provides a greater protection to “ordinary uses” of land.
- The Court acknowledged the principle that an owner should not have to alter the use of their land to prevent a nuisance caused by another. Claimants cannot be obliged to protect themselves from the consequences of intrusion caused by the abnormal use of an others land.
- It is no defence to state that the nuisance is in the public’s interest.
The importance of the case
This significant decision will likely generate significant media and academic interest, especially in the short term. For the first time, visual intrusion from neighbouring property has been recognised as an actionable nuisance.
Points to note
- This was an extreme case regarding “a very particular and exceptional use of land”.
- It is apparent that the ordinary instances of “overlooking” between neighbours will not be actionable.
- The right to build and demolish structures is fundamental and falls within the ordinary use of land and will not be actionable.
- The Court has made it clear that the circumstances where this new law will be applied will be rare.
- The Court will not consider claims for minor annoyances.
- There is no determination of the remedy for the apartment owners.
In the longer term, it will be fascinating to see whether this case prompts more property owners to make similar claims where they feel they are being over-looked; however, the bar has been set high!
The crucial element of this judgement to consider going forward is whether the land in question is being put to an ordinary or extraordinary use. I suspect this question may well generate further debate and possible litigation. It will be one to keep an eye on.
Learn more about the Litigation Team @ Mills Selig
Christina McDowell, Solicitor, Litigation
Christina joined the Litigation team at Mills Selig in August 2022, working closely with Emma Hunt, Head of Litigation, Christina is involved in a wide range of commercial cases including media and defamation.
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