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A recent decision in the Supreme Court has attracted particular interest due to the high-profile defendant in the case, the Tate Gallery in London.
This case is particularly relevant to hospitality businesses looking to use outdoor terraces or roof areas to increase revenues in these challenging times.
The Tate Gallery case
The Tate Gallery case concerns the issue of businesses overlooking private residences, which, it was successfully argued in this case, can cause a nuisance to local residents.
This extreme case concerns the Tate's viewing platform, which opened in 2016. The platform attracts millions of visitors each year, and from the platform, you can look directly into the opposite flats with glass walls.
The case was brought by the owners of these flats, who were subjected to visitors on the platform waving at them, taking photos and videos, and then posting them on social media.
These residents described the experience as if they were living in a "goldfish bowl".
The Supreme Court's decision
Rather than being an infringement on the residents' privacy, the Supreme Court decided that the platform causes a nuisance to the residents because it "wrongfully interferes with the use and enjoyment of neighbouring land" – being the block of flats.
As part of its investigation, the Court had to decide whether a viewing platform as part of an art museum located in a built-up area of London is a "common and ordinary use" of the land.
On this occasion, the Court ruled that it was not and that the nuisance was substantial enough for the residents to win their claim against the gallery due to the "duration and intensity" of the intrusion they suffered from visitors to the Tate.
In particular, the residents were being subjected to a large number of people on the platform every day, and the constant surveillance amounted to an interference with the enjoyment of their homes.
What action will be taken?
It remains to be decided by the High Court what action it will require to be taken. The residents' claim was for an injunction to prevent the viewing platform from being used. Alternatively, they claimed compensation for the nuisance.
If the Court does not consider compensation to be an adequate remedy, the injunction will likely be granted, and the viewing platform will not be able to be used in future.
Given the increasing development in cities, it is unlikely this claim will be the last of its kind. However, establishing an "actionable nuisance" is a very high threshold to overcome, and not every case of someone's home being overlooked will be sufficient to win a claim in nuisance.
Implications for hospitality businesses
Hospitality businesses often look to use outside terraces or roof areas. Suppose your business is in close proximity to residential buildings.
In that case, you must think about whether it could be argued that parts of your business overlook your residential neighbours and cause a nuisance.
If you are concerned about this, we have the expertise to help you ensure you avoid any challenges to your current or future plans for your business from a nuisance perspective.
Nuisance perspective is particularly important for hotels and restaurants looking to open balconies or terraces to increase revenues in these challenging times.
The introduction of lockdowns during the Covid-19 pandemic also led to a rise in businesses using outdoor spaces. Therefore the potential for a nuisance dispute with a neighbour is topical now more than ever and even more so with the Summer months fast approaching.
Noise nuisance
Finally, the issue of overlooking amounting to nuisance goes hand in hand with the importance of considering noise nuisance, which is discussed in our previous blog.