A group of luxury flat owners living opposite the Tate Modern art gallery successfully argued that the viewing platform constructed by the gallery offering visitors "panoramic views of London" (as well as the flat owners' living rooms) was, in fact, a nuisance.
Curtain-twitching this case was not. This was an extraordinary set of circumstances, in which hundreds of thousands of people were invited onto the purpose-built platform giving them direct views into the flats. The platform was considered to be of a very particular and, in the end, exceptional, use by the gallery – it was not necessary or ordinary for operating an art gallery.
However, the fall out could be far-reaching now that visual intrusion, which would have its roots in say privacy law, is now capable of being a private nuisance, which is a species of property law. Opening the floodgates on claims for trivial interferences is not necessarily the greatest concern, but developers and landlords should consider the implications of Tate on its existing and prospective developments.
The early stages of development might require redesign, or accounting for potential visual intrusion actions in the same way rights to light is considered.
For existing premises, it could impact the landlord's ability to consent to tenant alterations or for change of use by tenants, or at lease negotiation with greater control around user clauses. There could even be a reluctance to grant leases where there is a risk that the use could be considered outside the scope of 'ordinary and common' for that space. Ultimately, the result is likely to be one of caution.
Of course the remedy in Tate has yet to be determined – injunction to abate the nuisance or damages in lieu of the injunction. The end of this cautionary tale is still to come and we will update further as soon as judgment is given.
If you are a city developer or landlord dealing with interference to land such as visual intrusion or claims for rights to light, or you have any concerns or queries about how these issues may impact you or your business, please do not hesitate to get in touch with our Real Estate Disputes team or your usual Brodies' contact.