In December 2021 the Supreme Court heard an appeal from the owners of flats neighbouring the Tate Modern in London. The residents had issued proceedings against the gallery based on intrusion into their properties arising from a viewing platform connected with the Blavatnik Building, an extension to the gallery built in 2016. On the south side of the viewing platform, visitors to the Tate can see directly into the flats, which have walls made of glass. The property owners complained of being waved at, of gestures being made at them and even of social media posts and that this was an unreasonable interference with the use and enjoyment of their properties. To address concerns, the Tate put up signs to prevent photographs of the flats being taken and introduced limited viewing hours on the platform but this was not enough to appease the property owners. They pursued a claim in private nuisance and made arguments based on the Human Rights Act 1998 and the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’). Having been unsuccessful in the lower courts, the flat owners took their claim to the Supreme Court. The key question for the Supreme Court was whether intrusion of this kind, in other words overlooking another’s property, can be a private nuisance. After a lengthy wait, the Supreme Court has upheld the residents’ appeal, albeit by a slim majority of 3:2.

The law of nuisance had developed so that a landowner owes a duty of care to their neighbour based on what it is reasonable to expect of them as an occupier of premises in the individual circumstances. Where that duty is breached, a nuisance can arise. The Supreme Court’s decision moves the goal posts. Rather than concentrating on whether the landowner’s activities are a reasonable use of their premises, the test is now whether what is being done is a common and ordinary use of those premises.

On the facts, the Court found that the Tate had used its premises abnormally and in an unexpected way, by inviting the public to admire a view from a tower it had erected partly for that very purpose. Because the use was outside the norm, it was no defence to say that the residents had exposed themselves to the intrusion because of the design of their flats. A victim of such abnormal use is under no obligation to mitigate their position. The injury suffered by the residents was substantial, being constant visual intrusion, encouraged and invited by the Tate. This was a nuisance.

The inevitable question that arises from the judgment is whether it will open the floodgates to numerous claims to invasions of privacy in one’s own property. That will depend on the facts of each case. However, the Supreme Court judgment makes clear that the mischief here was the invitation by the Tate to the public to visit the viewing platform. They accepted that simple overlooking from one building over another is not a nuisance of itself. But there are other ways that premises can be viewed. Cameras are being used more frequently in everyday life, in doorbells, security CCTV and in drones. Would these be considered an uncommon or unexpected use of premises? We will have to wait and see.