By Kate Holland

The UK Supreme Court has ruled that the London Tate Modern’s public viewing gallery overlooking the luxury glass-walled apartments nearby, is a visual intrusion amounting to the tort of nuisance. The decision in has attracted criticism for prioritising the privacy interests of a few wealthy individuals over the right of millions of everyday people to enjoy the views across London.

Within and without

What drives our curiosity to peer into other people’s lives? In The Great Gatsby, F Scott Fitzgerald gives us a lucid introspection into this complicated desire. As the novel’s narrator stands at the window of a fashionable urban apartment and looks out across the metropolis, he imagines what the ordinary person outside might imagine while looking back in at him:

…high over the city our line of yellow windows must have contributed their share of human secrecy to the casual watcher in the darkening streets, and I was him too, looking up and wondering. I was within and without, simultaneously enchanted and repelled by the inexhaustible variety of life.

Similar thoughts may have crossed the minds of the Tate Modern’s terrace guests and the inhabitants of the neighbouring £1.5 million luxury apartments. But The Great Gatsby’s narrator never had to deal with hundreds of people looking at his window, whipping out binoculars and smartphones and plastering photos of him on Instagram. Not much of a concern in the 1920s, but a very real phenomenon in the 2020s – and the everyday reality for Tate’s neighbours. As the Supreme Court in this case observed:[1]

…a major part of what attracts the eye of the external viewer is the clear and uninterrupted view of how the claimants seek to conduct their lives in the flats. It is human nature that some people will display this sort of interest.

Look here, old sport

The Tate Modern’s Blavatnik Building opened in central London in 2016. Its top floor boasts a viewing terrace and a bar, and until recently 500,000 visitors flocked there every year to admire panoramic views across London, free of charge.

The terrace has capacity for 300 visitors at any one time, and was open every day of the week, from 10 am until as late as 10 pm on some nights. Unfortunately, it is only 34 m away from the Neo Bankside building – a modern luxury apartment block with floor to ceiling windows and individual glass ‘winter gardens’.

The thousands of daily visitors could enjoy the expansive views of London, and an intimate view into the Neo Bankside residents’ living areas. The courts described how some look, some peer, some photograph, some wave. Occasionally binoculars are used. There were 124 Instagram posts of the residents’ apartments during a two-year period, reaching an audience of 38,600 people.[2]

Then came the war, old sport

While the casual watchers on the Tate’s terrace may have been enchanted by the human secrecy and variety of life in the Neo Bankside’s yellow windows, the Neo Bankside residents were decidedly repelled by the inexhaustible wondering and looking in. The owners of four of the apartments (residents) sued the Tate for nuisance.

The residents were , which advised them to install one-way glass, draw their blinds, or best of all – put up net curtains.[3] They but were unsuccessful again, although for different reasons – it didn’t insist on the net curtains, but it held that ‘overlooking’ did not fall within the scope of common law nuisance.[4]

Boats against the current, the residents appealed all the way to the Supreme Court. In a non-unanimous decision, the Supreme Court overturned both lower court decisions and held the Tate liable in nuisance.

Chapter One: The High Court tells the residents to get themselves some nice net curtains

The High Court held[5] that the Tate’s use of the terrace as a public viewing gallery was a ‘reasonable’ use of its land, in its context as an art gallery, and so did not meet the legal test for nuisance.

Further, it held that the residents’ misfortune was self-inflicted on account of their apartments’ fully glazed facades and winter gardens, and that they had submitted themselves to sensitivity. It held that it would be wrong to allow this self-induced incentive to gaze… and self-induced exposure to the outside world to create a liability in nuisance.

It held that privacy is a bit different from other forms of nuisance, and those wishing to enhance their privacy should take their own protective measures – hence the net curtains.

Chapter Two: The Court of Appeal says ‘overlooking’ isn’t nuisance

The Court of Appeal rejected the High Court’s ‘reasonableness’ test and applied a different one – it held that the Tate’s use of its terrace was not necessary for the common and ordinary use and occupation of the Tate. But, nevertheless, it dismissed the residents’ claim on the basis that overlooking does not fall within the scope of the common law nuisance.[6]

It went on to give three policy reasons against extending nuisance to overlooking: (1) it would be difficult to establish an objective test and draw the line on when overlooking amounts to nuisance; (2) planning laws and regulations are the better forum for controlling overlooking; and (3) privacy matters like this are better left to the legislature. 

Chapter Three: Supreme Court – I’ve got something to tell YOU, old sport

A straightforward case of nuisance

gives a lengthy and comprehensive summary of the authorities on the various common law principles of nuisance going back to the 1860s. It found that the application of these various nuisance principles to the facts in this case was entirely straightforward and held:[7]

It is not difficult to imagine how oppressive living in such circumstances would feel for any ordinary person – much like being on display in a zoo … it is beyond doubt that the viewing and photography which take place from the Tate’s building cause a substantial interference with the ordinary use and enjoyment of the claimants’ properties.

The correct test to establish liability in nuisance?

It pulled no punches in criticising both lower courts and pointing out where they had erred in law. The High Court had asked itself the wrong question in considering whether the Tate’s use of its land was ‘reasonable’. The correct question was asked by the Court of Appeal – whether the viewing gallery was a common and ordinary use of the land. It found that the Tate’s public viewing gallery was in fact a special and abnormal use – neither common nor ordinary.[8]

Defence of ‘sensitive’ building design? Net curtains as protective measures?

It held that the apartments’ glass design and resulting sensitivity could not be used as a defence to nuisance – this would be unworkable, wrong in principle, and seriously enfeeble the protection that the common law of nuisance provides to homeowners using their property for the ordinary purposes of life.[9] Similarly, on the use of remedial measures and net curtains, it held:[10]

I cannot agree with the judge that “privacy is a bit different”… The claimants cannot be obliged to live behind net curtains or with their blinds drawn all day every day to protect themselves from the consequences of intrusion caused by the abnormal use which the Tate makes of its land. In circumstances where the claimants are doing no more than occupying and using their flats in an ordinary way and in accordance with the ordinary habits of a reasonable person, it is no answer for someone who interferes with that use by making an exceptional use of their own land to say that the claimants could protect themselves in their own homes by taking remedial measures.

A case of mere ‘overlooking’ and beyond the scope of nuisance law?

It was equally scathing of the Court of Appeal’s reasoning and rejected its three policy arguments against extending the law of nuisance to overlooking – there was no ‘extension’ required, simply the application of well settled tests. It disagreed that this was a case about mere ‘overlooking’:[11]

The claimants’ complaint is not that the top floor … overlooks their flats…   The Tate actively invites members of the public to visit and look out … permits and invites this activity to continue without interruption for the best part of the day every day of the week … half a million people … peer into the claimants’ flats and take photographs of them. To argue that this use of the defendant’s land cannot be a nuisance because “overlooking” … cannot be a nuisance is like arguing that, because ordinary household noise caused by neighbours does not constitute a nuisance, inviting a brass band to practise all day every day in my back garden cannot be an actionable nuisance…

Why did the lower courts stray from the straightforward path?

The Tate, the Supreme Court held, was clearly liable in nuisance. Both lower courts had erred because they were influenced by what they perceived to be the public interest in the use made of the Tate’s viewing gallery. Public interest is restricted to the question of remedies for nuisance, not to the question of liability in nuisance. The viewing gallery’s public benefit is relevant only in deciding what remedy should be granted to the residents.[12]

Chapter Four: So we beat on…

Some have criticised the Supreme Court’s decision as depriving the public of a benefit to protect the private interests of a few wealthy city-types. While it was an unusual and extreme case, the decision may have opened the floodgates of uncertainty in privacy disputes between neighbours.

And so, a happy ending for the Neo Bankside residents who will no longer be on exhibit – the show’s over. Or is it? It’s not quite the end of the story, because the Supreme Court made no decision on remedies and remitted that matter back to the High Court.

Another chapter to go then. Will an injunction be granted against the viewing gallery, or will the High Court give it the green light? It might simply grant some other form of relief to the residents, such as damages. The High Court’s net curtains may make an appearance after all…

In the meantime, if you’re tempted to take a sneaky trip up to the top of the Tate to sip a Gin Rickey and get a glimpse inside those jazzy glass apartments, well, don’t give it another thought, old sport while the parties agree a solution or head back to court.  

[1] Fearn and Others v Board of Trustees of the Tate Gallery [2023] UKSC 4 at [146].

[2] Above n 1, at [5] and [144].

[3] Fearn and Others v The Board of Trustees of the Tate Gallery [2019] EWHC 246 at [215].

[4] Fearn and Others v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104 at [96].

[5] Above n 2, at [180], [196], [205] and [215].

[6] Above n 3, at [96], [99], [81], [83] and [85].

[7] Above n 1, at [48].

[8] Above n 1, at [54] and [75].

[9] Above n 1, at [67]–[68] and [72].

[10] Above n 1, at [84] and [88].

[11] Above n 1, at [92] and [107].

[12] Above n 1, at [114] and [120].

“Route to the decision” – Scottish court rejects challenge to adjudicator’s decision that did not expressly address a material line of defence

Written by Kate Holland In UK Grid Solutions Limited and Amey Power Services Limited v Scottish Hydro Electric Transmission PLC,[1] the unsuccessful party to an adjudication sought to resist enforcement on the grounds that 1) the adjudicator had failed to address a...

Asking a decision-maker to take a sneaky peek isn’t a strategically clever move: adjudicator’s decision held unenforceable due to breach of without prejudice rules

Written by Maria Cole A party (AZ) brought proceedings in the England and Wales Technology and Construction Court (Court) to enforce the decision of an adjudicator against the respondent (BY).[1] During the adjudication, AZ had placed without prejudice emails before...

Failed waterproofing causes a flood of costs

Written by Sam Dorne Legal battle over failed waterproofing comes to an end after plaintiffs prove their damages at the High Court in duty of care breach. Water water everywhere In the heart of Flat Bush, Auckland, stand the Nikau Apartments – a residential complex...

Mayor Brown is right about why public sector contracts go over time and over budget

Written by Rabin Rabindran and Derek Firth  In his opinion piece (NZ Herald 21 February 2024) Mayor Brown provides a number of reasons for these overruns.  They include an obsession with governance skills rather than a range of skills directly useful to the sector...

BuildLaw Issue 53

March 2024Download PDF   CONTENTS From the Editor BuildLaw in Brief A cat among pigeons Major changes to seismic building standards Failed waterproofing causes a flood of costs Asking a decisionmaker to take a sneaky peak isn’t a strategically clever...

High Court soundly dismisses judicial review of adjudication determinations but may inadvertently have put the cat among the pigeons

By Alexander Lyall In Sam Pemberton Civil Ltd v Robertson,[1] the High Court considered applications for judicial review of two related adjudication determinations. In dismissing the applications, the Court underscored some of the key functions of the Construction...

Technocratic payment regime not the priority under the Construction Contracts Act

Written by Alexander Lyall In Dem Home Ltd v New Gate Ltd[1] the High Court considered whether a payment claim had been validly served under the Construction Contracts Act 2002 (the CCA). The decision is an ever-important reminder that the CCA is designed to maintain...

Highly stressful circumstances: Court of Appeal assesses contract in earthquake insurance mess

Written by Alexander Lyall   The Court of Appeal (the Court) has issued a decision in a long-running dispute between a Christchurch homeowner and her insurance and legal advocates. Pfisterer v Claims Resolution Service Limited & Anor[1] contains a close look...

Kane v Venues NSW: The Handrail Tale

Written by Sam Dorne The case of Venues NSW v Kane [2023] NSWCA 192, involving a patron’s fall within the lower concourse of the western grandstand of the McDonald Jones Stadium in Newcastle, Australia, looks at a fundamental legal question surrounding the duty of...

How do you solve a problem like retentions?

Written by Kate Holland The use of retentions in construction contracts is culturally ingrained in the industry but it is increasingly seen as an outdated and unfair practice. In the UK, there have long been calls to abolish or regulate retentions, but little progress...

The “measured duty” to love thy neighbour: private nuisance and naturally occurring hazards

Written by Maria Cole A Christchurch landowner, whose property sits at the foot of unstable clifftop land purchased by the Crown following the Canterbury earthquakes, has failed in the Supreme Court to obtain damages in “private nuisance” for the risk of further...

BuildLaw Issue 52

December 2023Download PDF   CONTENTS From the Editor BuildLaw in Brief How do you solve a problem like retentions? The “measured duty” to love thy neighbour: Private nuisance and naturally occurring hazards. Disruption claims: Are your project records up to date?...

New regulations for building products

Written by Richard Pidgeon The Building (Building Product Information Requirements) Regulations 2022 set out how information about building products contributes to building code compliance. The regulations stipulate that information on how products are to be installed...

Mainzeal saga ends in the Supreme Court

By Richard Pidgeon In Yan v Mainzeal Property and Construction Limited [2023] NZSC 113 the Supreme Court upheld damages against Mr Yan in the sum of $39.8 million and the remaining three directors (including Dame Jenny Shipley) jointly with Mr Yan in the sum of $6.6...

Obstructed view review

Written by Maria Cole Introduction In Wynyard Quarter Residents Association Incorporated v Auckland Council and Orams Group Limited,[1] a group of apartment owners filed judicial review proceedings seeking to overturn an Auckland Council decision to grant resource...

The losing streak is over: English rugby wins… right to bring claim against contractor

Written by Alexander Lyall Nearly 10 years on, English rugby finally has a victory related to the 2015 Rugby World Cup. In FM Conway Ltd v Rugby Football Union,[1] a company contracted by the English Rugby Football Union (the RFU) for maintenance works at Twickenham...

Keep calm and carry on: English Court of Appeal overturns controversial High Court ruling and clarifies guiding principles in serial adjudications

By Kate Holland The English High Court caused concern earlier this year when it held that an adjudicator had breached natural justice by holding himself bound by a previous adjudicator’s findings. Now, in Sudlows Ltd v Global Switch Estates 1 Limited,[1] the Court of...

Moving home

Written by Richard Pidgeon A family became dissatisfied with a house removal firm who had shifted their home from Remuera to Katikati. In Stott v Uplifting Homes Ltd [2023] NZHC 1514, the High Court determined the level of compensation after the contract was...

Big loss for insurer in legal battle with Napier Council over leaky building clause

Written by Sam Dorne In a recent case, the Supreme Court of New Zealand ruled in favour of the Napier City Council in an insurance claim involving building defects including weathertightness or “leaky building” issues, in what is seen as a return to the status quo...

BuildLaw Issue 51

September 2023Download PDF   CONTENTS BuildLaw in Brief Keep calm and carry on Mainzeal saga ends in the Supreme Court New Zealand: Insurance under Scrutiny Obstructed view review Case in Brief: Esk Valley marae injunction Res judicata and declarations relating...

Take a rain cheque – Full Federal Court of Australia reads common sense into insurance policy

By Alexander Lyall A decision by the Full Federal Court of Australia has provided clarification about the wording of an insurance policy for a construction project. In Acciona Infrastructure Australia Pty Ltd v Zurich Australian Insurance Limited [2023] FCAFC 47,[1] ...

Case update: English Court of Appeal confirms ‘useless’ ADR procedure too uncertain to enforce

By Kate Holland In our December 2022 issue of BuildLaw, we reported on a case in the English High Court[1] about an unusual alternative dispute resolution (ADR) procedure in a construction contract that was held to be too uncertain to be an enforceable condition...

English Court of Appeal confirms ‘useless’ ADR procedure too uncertain to enforce

By Kate Holland In our December 2022 issue of BuildLaw, we reported on a case in the English High Court[1] about an unusual alternative dispute resolution (ADR) procedure in a construction contract that was held to be too uncertain to be an enforceable condition...

Disgruntled builders lose defective cladding dispute

By Sam Dorne In Goodman-Jones v Hughey & ors [2023] NZHC 604, two experienced builders brought a claim for damages for a perceived defective installation of cladding for a new build. Despite the action being brought against multiple defendants the Court found that...

BuildLaw Issue 50

June 2023Download PDF   CONTENTS BuildLaw in Brief: Recent key developments in the construction industry Bad faith and without substantial merit – What it means and what it takes Disgruntled builders lose defective cladding dispute High-rise blues Build-to-Rent:...

Craftiness is not an abuse of process

With cashflow a persistent concern for companies in the construction industry, a recent decision in the New South Wales Supreme Court may alleviate some of the stress. The decision should affirm to struggling parties that there is no problem with taking strategic...

Waiver and estoppel arguments raised in interim payment dispute

By Sam Dorne The English Court of Appeal case of A & V Building Solutions Limited v J & B Hopkins Limited has highlighted issues parties face when there is ambiguity in relation to dates for requesting interim payment in construction contracts.[1] The case...

Doing business in Australia? Then you need to know when you still might have to pick up the whole tab

By Maria Cole If you have a commercial contract in Australia, it’s probably governed by Australian law, which includes the proportionate liability regime.[1] Broadly, proportionate liability means if there are multiple parties to a contract and things go wrong, a...

Parliament passes sweeping amendments to construction payment regime

By Alexander Lyall Parliament has recently enacted legislation allowing for comprehensive changes to the Construction Contracts Act 2002. The Construction Contracts (Retention Money) Amendment Act 2023 passed its third reading on Wednesday 29 March and received Royal...

BuildLaw Issue 49

March 2023Download pdf   CONTENTS Diamond Glass slices damages in airport contract Case in Brief: Craftiness is not an abuse of process (Kennedy Civil Contracting Pty Ltd (Administrators Appointed) v Richard Crookes Construction Pty Ltd [2023] NSWSC 99) That...

Builder terminates contract with a “sorry mate…costs are going through the roof”

By Kate Holland With the construction industry in the grip of labour and supply shortages and spiralling costs, a recent decision of the Queensland court is a timely reminder of the established principles of contractual repudiation. The decision is a warning to...

Ripping up the Resource Management Act

By Adrian Sharma The Resource Management Act 1991 (RMA) is one of New Zealand’s most important pieces of legislation. It governs what can be built where, when, and how. But more than 30 years on from its introduction, and after numerous amendments, the controversial...

To bespoke or too bespoke – the case of an ADR clause that couldn’t be enforced

By Kate Holland In a recent English decision, the Technology and Construction Court held that a clause in a construction contract requiring the parties to refer a dispute to ADR was a condition precedent to commencing litigation in the courts. However, the Court also...

The Court of Appeal sounds the all clear and it’s business as usual under the CCA: so file a payment schedule or pay up!

By Maria Cole A decision issued by the High Court last year caused a “head in hands” moment in the construction industry in relation to the payment claim regime. The High Court set aside a statutory demand which had been filed to enforce a payment claim as a debt due...

BuildLaw Issue 48

December 2022Download pdf   CONTENTS The Court of Appeal sounds the all clear and it’s business as usual under the CCA: so issue a payment schedule or pay up! Case in Brief: Builder terminates contract with a “sorry mate… costs are going through the roof” but...

Labelling an image as an ‘artist impression’ was found not to give a developer artistic licence in a claim of misleading and deceptive conduct over an ‘off-the-plan’ premium apartment

By Maria Cole Australian consumer protection law was given an outing in the Federal Court of Australia when a developer merely added the words ‘artist impression’ to a computer generated image it intended to use in its marketing materials for an ‘off-the-plan’...

Fire risk – defective cladding litigation heats up

By Sam Dorne In England and Wales, the Technology and Construction Court in Martlet Homes Ltd v Mulalley & Co Ltd [2022] EWHC 1813 (TCC) (14 July 2022) has released the first decision arising out of a defective cladding dispute following the Grenfell Tower...

BuildLaw Issue 47

September 2022CONTENTS Competition not working well in residential building suppliesmarket Fire risk – defective cladding litigation heats up Case in Brief: Supreme Court of New South Wales finds forcemajeure clause offered no protection for loss and damage togoods in...

WA Supreme Court finds no implied licence to use home design plan

By Kate Holland In a recent Australian case, the WA Supreme Court was unwilling to interpret a contract between a home builder and their client to imply a licence allowing the client to use the builder’s design in whatever way they pleased. Although the case was...

Overhaul coming to the regulation of engineers

By Sam Dorne The Ministry of Business, Innovation and Employment (MBIE) undertook a consultation in 2021 to reform the regulatory regime for engineers. The reforms will move away from a voluntary accreditation scheme into a formal regulated regime.   Current...

Expert “evidence” needs to be more than just bald assertions to win the day

By Adrian Sharma Leakage issues in a building can be a real dampener. A recent decision of the Queensland Civil and Administrative Tribunal (the Tribunal) which considered conflicting expert evidence on water ingress issues in a newly built property highlighted the...

An adjudicator’s decision on a construction contract is definitely worth the paper it’s written on!

By Maria Cole It’s only in rare circumstances that the courts will interfere with the decision of an adjudicator on a construction contract. A recent decision out of the English Technology and Construction Court (TCC) considered arguments that an adjudicator acted in...

You break it you bought it: Supreme Court confirms you can’t cancel a contract for failure to satisfy a condition if your own behaviour had a material effect on the failure

By Belinda Green.   We’ve known for a long time that a party can’t rely on a failure to satisfy a condition if the condition failed to satisfy because of their action. But we never really had an explanation of how bad that “failure” had to be until now. In its...

BuildLaw Issue 46

March 2022CONTENTS You break it you bought it: Supreme Court confirms you can’t cancel a contract for failure to satisfy a condition if your own behaviour had a material effect on the failure Case in Brief: Unhelpful expert witness sees homeowners succeed in defective...

Vicarious liability and subcontractors

By Sam Dorne Liability in tort depends upon proof of a personal breach of duty, with one true exception, vicarious liability. The law of negligence is generally fault based; a defendant is personally liable only for the defendant’s own negligent acts and omissions....

Limitation for payment claims under construction contracts

By Sam Dorne The decision in Hirst v Dunbar [2022] EWHC 41 (TCC) considers the impact of payment provisions in a construction contract, whether through contract or implied terms, and the commencement of the limitation period for payment claims under the contract. It...

Extensions of time in construction contracts

By Jo O’Dea   In an extension of time claim, blame for the delay was a relevant consideration when assessing what was “fair and reasonable”.   In CAJ v CAI [2021] 5 GCA 102, the Singapore Court of Appeal considered the issue of extensions of time in...

BuildLaw Issue 45

March 2022CONTENTS Extensions of time in construction contracts Construction contract procedure and dispute resolution: There really is a reason to pay attention to the boring stuff Principals beware, constructive acceleration is here UK: Important announcement on the...

Testing the waters: New South Wales Supreme Court considers the prevention principle

By Hannah Aziz  Court provides further confirmation that the prevention principle can be excluded by the terms of a contract.   Introduction Following our recent commentary comparing the operation of the prevention principle in New South Wales and Victoria, the...

Construction contract or product warranty? Not all collateral warranty disputes can be adjudicated

By Belinda Green Collateral warranties might be parasitic on a construction contract, but that doesn’t automatically mean they are one. The individual wording and circumstances need to be considered. In some cases, like in Toppan Holdings Limited v Simply Construction...
Skip to content