In 2016, the Tate Modern in London opened the top floor of the Blavatnik Building as an open viewing terrace with expansive views across the city, St Paul’s Cathedral, Canary Wharf, and Wembley Stadium. The viewing platform also provided clear views into the glass-walled apartments of a neighbouring building only 30 metres away. Visitors to the viewing platform could view the people living in the apartments from practically every angle. Many visitors took photographs and posted them online, and some even used binoculars to peer into the homes. The residents were displeased and issued proceedings against the Tate, which went all the way to the Supreme Court of the United Kingdom, which has recently released its decision on liability in Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent) [2023] UKSC 4.
The Supreme Court of the United Kingdom decided that the viewing platform amounted to a private nuisance to those living in the apartment building. The Court defined a private nuisance as wrongful interference with the claimant’s enjoyment of rights over land. Having established the Tate was liable to the apartment owners in nuisance, the Court referred the case back to the High Court to determine the appropriate remedy, which may include payment of damages or an injunction restricting the use of the viewing gallery.
This case demonstrates that the definition of private nuisance is broad and can encompass many different scenarios.
Private nuisance can be defined as any ongoing or recurrent activity or state of affairs that causes a substantial and unreasonable interference with a plaintiff’s land or their use or enjoyment of that land. The interference must be substantial and unreasonable. The nuisance can be something tangible for example, dust, smoke, or vibrations, or it may be intangible, for example, smell, sound, or light. The nuisance usually originates from defendant’s land but this is not always the case.
Whatever is causing the nuisance does not have to be unlawful in itself. In fact generally whatever is being emitted is lawful but has become a nuisance because of the particular circumstances surrounding the interference. Something may be considered a nuisance if it does one of the following:
- Causes encroachment onto the neighbour’s land, so as to closely resemble trespass;
- Causes physical damage to the neighbour’s land; or
- Unduly interferes with the neighbour in the comfortable and convenient enjoyment of his land.
In determining whether an interference is a nuisance, it is important to consider the balance between one person’s right to the use and enjoyment of their land without disturbance, and the right to another party to the lawful use of their land. The standard of whether an interference is unreasonable is based on whether a reasonable person living or working in the area could not be expected to tolerate it. Many factors are taken into account, including but not limited to the type of neighbourhood, severity of the damage, and the particular circumstances.
Some other examples of nuisance include:
- Light reflecting off a neighbouring building and creating a glare (Bank of New Zealand v Greenwood [1984] 1 NZLR 525)
- Offensive odours coming from a meat works operation that rendered a neighbouring property incapable of occupation (Hawkes Bay Protein Ltd v Davidson [2003] 1 NZLR 536)
- Tree branches overhanging onto neighbouring property and tree roots growing into the neighbour’s soil (Semple v Wilson [2018] NZHC 992)
Remedies to a private nuisance include injunction to stop the nuisance from occurring and damages for the loss in value of the property or loss of profits due to the nuisance. Often creative solutions are decided between the parties involved. One example was the installation of blinds to block reflecting light as in Bank of New Zealand v Greenwood, or the putting in place of a tree root barrier to prevent their encroachment into land, as in Semple v Wilson.
The determination of whether something is a nuisance and an appropriate solution is highly dependent on the facts of a particular situation. It is best to take legal advice at an early stage in order to avoid a potential costly outcome later on. Contact Harmans on 03-379 7835 or visit https://www.harmans.co.nz/contact/
The information contained in this site is provided for informational purposes only, and should not be construed as legal advice on any subject matter.
