Private Views: A very modern kind of nuisance

Examining the key legal issues at play in the fascinating dispute between the Tate Modern and the residents of Richard Rogers' Stirling Prize-nominated Neo Bankside...

In the same way that it is not a nuisance to interfere with a view, it is also not a nuisance to erect a building which invades a neighbour’s privacy, explains Simon McIlroy

Residents of Neo Bankside have applied for an injunction against the Tate Modern, requiring the art museum to close or screen off part of a viewing deck which looks directly into the residents’ flats. The flats have floor to ceiling windows and residents say the viewing deck has turned their properties into goldfish bowls – an attraction for voyeuristic tourists who are tired of the view of St Pauls Cathedral. They claim that the Tate Modern is committing a nuisance and that the residents’ right to respect for private and family life is being offended.

The starting point is to ask whether the activity is reasonable ‘according to ordinary usages of mankind living in a particular society’

Nuisance is a condition or activity which unduly interferes with the use or enjoyment of land. There is no definition of undue interference but the starting point is to ask whether the activity is reasonable “according to ordinary usages of mankind living in a particular society”. For example, it is perfectly ordinary for somebody to watch television in their house. A neighbour cannot prevent this from happening, even if for some reason – say poor construction of the building – the television noise disturbs him or her.

Claims in nuisance are common, but they usually relate to unwelcome noise, smell and vibration emanating from nearby property – not the invasion of privacy. The most famous recent case was Coventry v Lawrence, where the claimants lived near to a speedway track and complained about the noise that the cars were making. The Supreme Court found that there had been a nuisance and ordered an injunction restricting the motor activities, even though the race track had planning permission.

Here, the residents of Neo Bankside do not have the law on their side. In the same way that it is not a nuisance to interfere with a view, it is also not a nuisance to erect a building which invades a neighbour’s privacy. This was decided as far back as 1911 in the case of Browne v Flower, where the claimants unsuccessfully argued that their neighbour’s garden staircase was a nuisance for allowing the neighbour to look through their windows. The same case established that someone cannot acquire the right to privacy, unlike the right to light.

The Tate Modern will also argue that this claim is undermined by the fact the residents knew about the viewing deck when they bought their properties. The residents will rely on Coventry v Lawrence, where it did not count against the claimants that they had known about the race track at the time of purchase. But the principle that it is no defence to say a person “came to the nuisance” only applies where the claimant is using the property for the same purpose as their predecessor. The difference here is that Neo Bankside is a new development.

Whatever the outcome, the claim highlights the scope for conflict in increasingly mixed-use towns and cities, where residential purchasers expect perfection for the premiums they have to pay. Commercial landowners concerned about residential developments being built in their vicinity might look to the example of the Ministry of Sound nightclub at Elephant & Castle. On seeing the potential for nuisance claims being brought by residents of a new development, the club agreed a deal whereby residents signed away their right to complain about noise.

Mercifully for developers, as a matter of public policy the courts maintain that everyone must put up with a certain amount of discomfort and annoyance

For developers, nuisance claims are still most likely to arise from disruption caused by building works. Mercifully for developers, as a matter of public policy the courts maintain that everyone must put up with a certain amount of discomfort and annoyance. A developer has a good defence to a claim if it can show that it is taking all reasonable care and skill to avoid annoyance to neighbours, for example by using modern building methods.

Finally, a cautionary note to landlords with redevelopment plans. In the recent case of Timothy Taylor v Mayfair, the landlord was ordered to pay its art gallery tenant compensation for the disruption of works, even though the lease gave the landlord full right and liberty to rebuild. Tenants have the right to quietly enjoy their property without interference, so landlords are at particular risk of being landed with nuisance related claims. It remains to be seen whether this could ever extend to claims for breach of privacy.

Simon McIlroy is an Associate in the Real Estate Disputes team at Collyer Bristow

E. simon.mcilroy@collyerbristow.com W. collyerbristow.com

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