Author: Leanne Meredith
Leanne Meredith, Associate, Fladgate LLP (firstname.lastname@example.org)
It is established law that a claim can be brought by one landowner against his neighbour in “nuisance”. Such a claim can arise in the event that the neighbour is doing something on his land which is causing a problem to the first landowner.
The scope of what might constitute an actionable “nuisance” has recently been helpfully clarified by the High Court in its judgment in a claim brought by residents of four flats in a block next door to the Tate Modern. The Court made new law when it decided that in an appropriate case the law of nuisance will help to protect against interference with the privacy of residents whose homes are overlooked. However, the Court decided that it could not assist the residents in this case, and left them to find their own ways to limit any intrusion.
The four flats at the subject of the dispute are situated very close to the Tate Modern. They have entirely glass walls, offering their residents panoramic views of central London. The glass walls became a double edged sword however when the Tate Modern opened its very popular 10th floor viewing platform.
Since it opened, the platform has been visited by up to around half a million people a year. Some of those visitors have been using the platform to peer into the complainants’ flats. Visitors have taken photographs of the interior of the flats (posting them on social media, of course), and are said to have raised their binoculars to obtain a better view of what the residents were up to.
The residents explained in their evidence to the Court how the viewing platform made them feel – one resident reported that his family felt that they were “more or less constantly watched” from the viewing gallery and “felt as if they were in zoo”.
The residents were dissatisfied by the initial steps taken by the Tate Modern to limit intrusion (which entailed erecting notices and employing security guards), and applied to Court for an injunction requiring the Tate Modern to completely prevent members of the public observing their flats from part of the viewing gallery.
The Court found that a claim in nuisance could be brought against a neighbour who was deliberating overlooking a home (using the example of a tower overlooking an adjacent property). However, not all cases of overlooking gave rise to an actionable claim. This was not an example of an actionable claim.
The Court considered that one had to take into account all of the circumstances in which the complaint arose. In this instance the residents were living in central London, and inner city dwellers could expect to live “cheek by jowl” with their neighbours. In comparison to the windows in traditional flats, the glass walls of the flats appeared to have worsened the issues caused by the viewing platform. The residents had, therefore, by the special features of their flats created their “own sensitivity”. The Court found that as a result the residents had to tolerate the consequences – taking the alternative steps open to them to limit the intrusion caused by visitors to the viewing gallery. For example, it would not be so unreasonable for them to pull down the blinds which were already installed…or install some net curtains.
The residents did not appear to know about the intended platform when they bought their flats. Their evidence of the impact of the viewing platform on their ability to enjoy their homes was compelling. Why should they feel like animals in a zoo? However, they did choose to buy flats in central London with floor to ceiling windows, and that could be said to be a risky approach. It remains to be seen if the residents will appeal. In the meantime, this decision will be welcomed by developers, and especially those working on city based projects.