Last week the Supreme Court handed down judgment in the ongoing nuisance claim between the residents of Neo Bankside and the Tate Gallery. Forsters’ Property Litigation Team, led by Senior Partner, Natasha Rees, have been acting for the residents of Neo Bankside in whose favour the Supreme Court ruled.

The case relates to the public viewing gallery at the Tate Modern. It is estimated that approximately 500,000-600,000 people visit the viewing gallery each year, which offers a free 360-degree panoramic view of London. This view also includes a view of the interiors of the flats opposite in the Neo Bankside development which have fully glazed façades. A significant number of visitors display an interest in the interiors of the flats by waving, peering, photographing and using binoculars to look in. There have even instances of footage being uploaded to social media.

The Supreme Court found that this visual intrusion could amount to an actionable claim in common law nuisance and has remitted the case back to High Court to determine the appropriate remedy.

The Judgment raises questions over what this could mean for the development industry. Fully glazed facades are not unusual, and given the increasing pressure on development space in our cities, could this ruling impact on the future of design and ability to maximise a site’s potential?

Developers can breathe easy as this would appear unlikely in most cases. The Supreme Court was keen to emphasise a person’s right to develop their land as they choose (subject, of course, to planning policy considerations). There must be a level of “give and take” between neighbours when the use of the land is ordinary, as is the accepted cheek by jowl reality of city living. The ordinary use of land is an objective test. It is only in cases where there is a “substantial interference” with the ordinary use and enjoyment of land that an actionable nuisance may arise. The Supreme Court found without doubt that the viewing and photography that was taking place caused a substantial interference with the ordinary use and enjoyment of the claimants’ flats.

The Supreme Court discussed the role of the planning process in overlooking cases more generally. Lord Leggatt was very clear to distinguish the different functions planning law and private rights have:

“unlike the common law of nuisance, the planning system does not have as its object preventing or compensating violations of private rights in the use of land…while a planning authority is likely to consider the potential effect of a new building or use of land on the amenity value of neighbouring properties, there is no obligation to give this factor any particular weight in the assessment.”

Surprisingly and to this point, there is no evidence that overlooking was considered at all in this case. The reason for this may have been down to timing. The public viewing gallery and Neo Bankside went through the design and construction phase at the same time. This may explain why the effects of the developments on each other in terms of visual intrusion were not only not appreciated but unaddressed.

The case serves as a reminder to developers to ensure they consider upcoming developments in the vicinity of their sites. Whilst planning permission may be obtained, there is a risk they could be liable to remedy nuisance claims if the use of the land goes beyond the ordinary. This is unlikely to be an issue for standard residential and commercial uses. However, where unusual and intense uses, perhaps in the hotel & leisure and entertainment industries occur, this may well raise costly problems. Particularly when building footprints and design are being pushed to the limits in the ongoing urban squeeze of our major towns and cities.