2nd February 2023
In summertime the public viewing platform at Tate Modern is the delight of everyone.
Nearly every person can enjoy panoramic views of London, including into the rooms of neighbouring apartments, for which well-off people have paid – and they do not want other people to watch.
The platform will probably now be turned to some other use.
The whole of London will be much the poorer.
And all this because of those who have bought flats there next to the Tate Modern.
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Yes, this brief post is about the Supreme Court judgment in the “nuisance” case about whether local residents have a claim in respect of Tate Modern’s use of the top floor of its Blavatnik Building as a viewing platform.
A detailed look at this fascinating case is a subject for another post.
But, in the meantime, it is remarkable that one person who was not named in the judgment, the former Master of the Rolls Lord Denning.
I am not a fan of Lord Denning as an appeals judge, but nobody can deny his skill as a wordsmith.
And one of his most famous judgments was in the minority in the 1977 case of Miller v Jackson.
It is a case known to every student of English law.
This was a case about a village cricket pitch which, the plaintiffs contended, constituted a nuisance to the adjacent properties.
The case of Miller v Jackson is mentioned a few times in the Supreme Court judgment, but Denning’s famous minority speech is not alluded to – and he is not named whatsoever.
This can only be a deliberate omission, given the sheer fame of that Denning speech.
We should be impressed by the self-restraint of the Supreme Court judges not to mimic or even refer to the famous speech by Denning.
A temptation that cannot be resisted, however, by far lesser legal minds.
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But see also:
https://www.espncricinfo.com/story/fabian-muir-on-how-a-judgement-35-years-ago-saved-many-english-cricket-clubs-554175
Master ofthe “Roles”?
Ha ha, corrected.
Master of the Rollers surely.
Cough…as a somewhat callow youth, I always thought Denninghad something to do with baking than acting?
Anyway, yes, I was surprised at this ruling from the SC. It rather reminded me of those miserable people who move into Edinburgh’s High Street (Royal Mile) and then complain about the Festival Fringe events going on in the street below them – including buskers (piping or otherwise. It’s been going since 1947. Similarly, there have been attempts by newer residents next to the castle at the top of the HS, trying to limit or even stop the Tattoo, which began in 1950! Enough of these residential interlopers! Begone elsewhere!
The last 3 words of the report of Miller v Jackson: legal aid taxation. Another world in which legal aid was available for a civil action like this.
A Lay person’s view (mine) would be that the Millers bought their house in the full knowledge that cricket (and the scoring of sixes) had been played on the ground since 1905, so why were they complaining? You will doubtless mention in your detailed post that the Millers sold up soon after the case and that the Lintz cricket club still plays there today.
So my question is whether the opening of the Tate viewing platform preceded or anteceded the marketing of the flats. If the former, then the Law is an Ass
The viewing platform was built after the flats.
How can we get this absurd situation reversed? Will the rights of newcomers who were aware when they bought or built their homes that the supposed ‘nuisance’ existed next door always be considered ‘superior’ to the rights of those who enjoy the supposed ‘nuisance’? Is there a way in which an act or parliament could reverse such decisions and protect us supposed ‘nuisance makers’ in the future? I hope you will comment on this in a future post DAG.
the issue has come to the fore in Brussels, where a legendary techno club (Fuse) was ordered by the authorities to shut down after long-running legal action by someone who bought a house next door recently. quite possible that during the 2-year stay of execution some law is passed (Loi Fuse?) to establish this principle.
Oh, I’d thought the viewing gallery was opened after the flats were built. If it’s the other way around, then what were they complaining about? Caveat emptor surely.
You were quite right, the flats preceded the viewing gallery by 4 years according to one of the news/current affairs programmes I happened to be watching (can’t remember which).
Apparently, the wealthy tenants of the flats really only object to some of the visitors taking photographs of their living rooms and posting them on the net.
I think I would find it objectionable if people did that with my home.
There are a lot of below the line comments on The Times report of this case. The thrust seems to be that the Tate had planning permission for their new wing before the flats got their planning permission so, as Nick Serota curtly averred, people buying the flats knew the new wing was going to be built. Whether they knew the new wing would have a viewing platform is unclear.
David,
I am a retired American lawyer, now resident in Scotland. I enjoy your daily posts, but wonder whether you know that your quotations and other insertions (such as the quote from the opinion above) are invisible when reading on an iPad (or iPhone).
It’s usually only if you read the email (from The Law and Policy Blog) that the images are not visible. If you go to the web page (by clicking in the email on the article title), that is the easiest way to see the article with images.
Does the Wednesbury principle of ‘reasonableness’ not bear on any of this? In effect Denning and yourself are both stressing the inherent unreasonableness of the position contra the two judgments.
Sheepishly decides had better re-read the Wednesbury essay.
NB, I’m not saying the Wednesbury rule applies, given I’m not really fit to hold an opinion on that, but that the principle should apply. Or rather, I’m saying that Denning and yourself are effectively invoking the principle of the Wednesbury decision.
Or in other words, can someone explain to me why ‘reasonableness’ isn’t an issue in the Tate Modern case?
“The animals did not mind the cricket.” :)
When I was a law student in 1970-73 we were encouraged to read all Denning’s judgments in order to learn how to paint a word picture simply and speedily. Throughout my legal career of 45 years I continued to try to apply that rule of short pithy sentences – particularly to describe the facts of a case.
Shame he was a rather reactionary Judge by the end.
But it’s not the same as the cricket pitch
“The platform opened to the public in 2016, four years after the flats were completed.”
https://www.theguardian.com/artanddesign/2023/feb/01/tate-modern-viewing-platform-invades-privacy-of-flats-supreme-court-rules#:~:text=The%20platform%2C%20which%20opened%20in,after%20the%20flats%20were%20completed.
But the Tate planning permission precedes the flats. The viewing platform was always there (even in the 2007 permission before the flats were approved). Neo Bankside had the chance to oppose it in 2009 when Tate reapplied (change from glass to brick mostly) but they strongly recommended the extension.
But, in this analogy, is the Tate being compared to the cricket club (the innocent victim of complaints by neighbours who want to spoil people’s enjoyment) or of the newcomer (putting up a viewing platform that robs neighbours of their long-held enjoyment of their privacy)?
Nothing will ever surpass “It was bluebell time in Kent>”
Indeed! And, talking of Kent, while I lived on Dungeness near the Romney, Hythe and Dymchurch [steam] Railway, a couple bought a house abutting the track (for many, premium property) and then complained about coal soot on the drying washing.
This calls to mind a different sport, golf, with different and more disposable balls and no less dangerous. There are many golf courses in the country, often with housing nearby. Balls often make their way into the gardens and are lost. Maybe there is a history of injury in some such gardens, but it makes no sense to move the golf course and none either to move the cricket ground.
In the Tate case it seems to me plain that the apartments, built sold and occupied before the construction of the viewing platform, must gain some ‘first mover’ advantage here and that the builder of the Tate should have thought about the issue, whatever the law at the time. Maybe also the lawyers for the purchasers of the flats might have a case to answer for not pointing out any plans for the platform when acting in the sale.
However, it seems to me that reflective glass windows or similar covering, should do the trick and preserve the privacy of the the residents whilst maintaining the utility of the view.
The snippet about this case that I heard suggested the flat owners were legally constrained (in the deeds?) from easy fixes such as using blinds or reflective glass. I might have misheard what was said.
I haven’t read the arguments or the judgment, but why can’t they just buy blinds and curtains like the rest of us?
Although in this case, the Tate’s viewing platform post-dated the construction of the apartments?
The Supreme Court judgment here quite long but quite readable, and has some striking passages, such as where the intrusion is likened to a brass band practising all day every day in a back garden. Not quite at Denning level though.
(The reporting of this case in the press as being about “privacy” is a little misleading: this is a simple question of nuisance, and whether excessive “overlooking” can amount to a wrongful interference with the claimant’s enjoyment of their rights to make reasonable use of their land. A question that is simple to pose, but difficult to answer.)
I suspect the majority did not mention Denning because he was in the dissenting minority in Miller v Jackson on whether there was actionable nuisance (or indeed negligence). The dissenting minority in this case could have mentioned Denning as foreshadowing their attempt to strike a balance between the competing rights of each landowner (and the public interest), but perhaps mentioning another losing argument does not help much.
Denning joined with another judge in holding that damages was an adequate remedy in Miller v Jackson, and it remains to be seem what kind of remedy might be found in the Tate case. I doubt damages would suffice, but an injunction seems heavy-handed. Perhaps undertakings to limit opening hours, and some privacy screens?
Interesting to note that the Millers obtained Legal Aid to pursue their (successful) claim against the cricketers. Those were the days!
……. But it was unsuccessful, wasn’t it?
Curate’s egg. The Millers succeeded at first instance, with orders for damages and an injunction although the club’s appeal against the injunction was allowed on appeal. The cricketers played on – and the Millers moved on. I’m unclear how much of the cost of the litigation, if any, fell on the Legal Aid Fund, i.e. the taxpayers.
If I bought a house next to Wembley Stadium and then complained about the noise when/if England score, they’d lock me up. Utterly ridiculous. Name and shame the complainers!
This judgement seems to me, as the man on the Clapham bus, to go completely against natural justice. The residents of the apartments bought them in full knowledge of their situation and presumably received an appropriate discount on the price. To the. Come along and ask a court to remove the rights of existing Tate Modern users to view London seems to be perverse.
The difference in the Tate Modern case is that the residential properties in London existed before the intrusive neighbouring viewing platform and not the other way around as with the cricket pitch example.
Well, if you Google Nicholas Serota you will find him averring that planning permission for the Tate’s extension had already been given before the flats were built. He is reported to have said “People purchased with their eyes wide open”
‘…March 2007, the proposed extension of the Tate Modern was given planning approval….The £260m extension created a giant, fragmented glass pyramid structure that provides an annex to the south-west of the existing building.’ That glass pyramid might have raised different objections if it had been built as originally designed, even if it did not include a terrace. The building constructed is solid brickwork with no reflections into the adjoining flats.
Doubtless there is a more pithy and amusing comment to be made here, but one cannot help but wonder whether Brexit was supposed prevent or engender this kind of nonsense
A few comments responding to some of the points above:
* “Coming to the nuisance” – that is, buying property next to an existing activity – has not been a defence since at least Sturges v Bridgeman in the 1870s. In that case, the industrial-scale manufacture of confectionary had been going on for years, and the substantial level of machinery noise and vibration only became a nuisance when the neighbouring landowner on Wigmore Street changed the way they used their property by building a new room to use as doctor’s consulting room. Miller v Jackson is another similar case: if the activity is a nuisance – that is, if it causes an unreasonable interference with a neighbour’s use or enjoyment of their land – it is actionable, even if you build or buy a house next to an existing activity. I accept, this is a particular problem for entertainment venues if neighbouring properties are turned into flats.
* There is a qualitative difference between living in a inner-city flat with a large window that passers-by might look through from time to time, and being under constant observation for much of the day, every day, like being on display in a zoo.
* “Reasonableness” comes into this in several ways. The flat owners were making reasonable use of their homes. The viewing gallery caused a substantial interference in that reasonable use, beyond the normal “give and take” that neighbours would usually expect, even when living cheek-by-jowl in a city. And the Supreme Court says the Tate’s use of its land, facilitating constant “overlooking” to the extent in this case, was excessive, and not “reasonable”.
* If there is a nuisance, it is not up to the person suffering the interference with the use or enjoyment of their land to take steps to mitigate it. That might go to the calculation of give and take, and whether the interference is substantial, but once there is a nuisance, the person causing it has to stop it or bear the consequences.
* “Public interest” goes to the remedy, not liability. That is, public interest does not stop an activity being a private nuisance, but might mean that the court does not exercise its discretion to grant an injunction, but may awards damages instead.
I repeat my suggestion that people should read the Supreme Court’s judgment and make up their own minds.
Lord Denning was wrong about one thing….Lintz cricket club didn’t disappear….it is still going today – whether on the same ground or not I have no idea, but it boasts no less than 8 teams and they say the Bulldog spirit has gone…maybe in Bankside – but not in Co Durham!
https://lintz.play-cricket.com/
The viewing platform was constructed after the flats were built.
There was planning permission for the viewing platform which was granted prior to the flats being constructed. This may be true, but most planning permissions have a time constraint, about which we have not been informed.
If there was a currently valid planning permission when the flats were purchased, the solicitor for the purchaser ought to have discovered it and informed the clients. If there was not, then any new planning application ought to have been objected to by the neighbours, and a legal case ought (probably) to have been on the basis of the validity of the planning approval and made against Southwark council rather than the Tate.
All in all, not very much like someone buying a house next to a cricket ground at all. Although the Denning words were charming.
I suspect we have not heard the last of this case. The cricket ball does get an mention, but not Denning. Perhaps the damages (if such is decided) will be a packet of Tate peanuts.
One wag in the comments of an otherwise respectable newspaper proposed the occupants of the flats might set up a large TV screen displaying hard core porn 24/7. Purely for the occupant’s amusment you understand. But then we are back into nuisances.
I understand the flats cost about £2 million. You can get a tolerable pile on the outskirts with a driveway and hedge for that money. Do what the cricket ball folk did – move.