Trowers' property litigation weekly update


This week we look at the Supreme Court's decision in the Tate Modern viewing platform case, as well as a recent modification of a restrictive covenant and and a ruling on whether a landlord could recover a service charge for lift maintenance works. All this together with our usual dose of positive news and insights from around the firm.

Supreme Court rules that the operation of a viewing platform by the Tate Gallery constituted a nuisance 

The Supreme Court has issued a landmark judgment on the law of private nuisance in Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4. 

In 2016, the Tate Modern gallery had opened an extension including a viewing platform on the top floor, overlooking the neighbouring block of Neo Bankside flats (which features floor to ceiling glass walls) at a distance of 34 metres.  A claim was brought by the neighbours, alleging nuisance and seeking an injunction preventing the Tate's visitors from looking into their flats and/or damages.

Allowing the flat owners' appeal by a 3:2 majority, the Supreme Court decided it was beyond doubt that the viewing and photography taking place from the Tate's building amounted to a substantial interference with the use and enjoyment of the claimants' home. It ruled that the operation of a public viewing gallery fell outside the ordinary use of the Tate's land (even as an art gallery), making the Tate liable in nuisance. 

The Supreme Court held that the trial judge was wrong in three areas of law:

  1. The wrong test was applied by asking whether the Tate's use of its land was 'unreasonable' rather than ordinary;
    Consideration had wrongly been given to the claimants exposing themselves to visual intrusion by living in flats with glass walls. This defence failed because the Tate gallery was using its land in an abnormal and unexpected way;
  2. Consideration had wrongly been given to whether blinds could have minimised the intrusion. The claimants could not be obliged to take remedial measures to avoid the consequences of the abnormal use which the Tate made of its land. 
  3. The Supreme Court further considered that the Court of Appeal had wrongly decided that the claim must fail because "mere overlooking" cannot give rise to liability for nuisance. The Supreme Court ruled that the claimants' central complaint amounted to more than mere overlooking and that visual intrusion of the level complained of in this case could amount to a nuisance. 

Restrictive covenant modified to enable affordable housing development to stand

In Housing Solutions v Smith [2023] UKUT 25 (LC), the Upper Tribunal (Lands Chamber) has modified restrictive covenants under section 84 of the Law of Property Act 1925 to enable affordable housing to stand.   

The affordable housing in question had been built as part of a wider development on land burdened by restrictive covenants. The owners of the land benefitting from the covenants were a children's hospice next to the site, and Mr Smith, who had inherited a large amount of the farmland nearby.

The Supreme Court had ruled in previous litigation in 2020 that the covenants should not be modified because the original developer, Millgate, had built before having the covenants discharged.  This left matters in limbo, and so a deal was struck with the children's hospice, but that did not involve Mr Smith.  Housing Solutions therefore applied to the Upper Tribunal to modify the covenant on alternative grounds, namely that that the covenant would 'impede some reasonable user of the land for public or private purposes' and that it 'did not secure … any practical benefits of substantial value or advantage' to the person objecting. 

The earlier decision had already found that the covenants did not secure any real benefit to Mr Smith. In this second case the Upper Tribunal visited the site and agreed. The 'egregious' behaviour of Millgate, which was what had lost the Supreme Court case, was not relevant in Mr Smith's case. As between Housing Solutions and Mr Smith, the balance fell towards the reasonable use of the land and against a person who did not derive any substantial benefit. 

Having dismissed various arguments that Mr Smith brought regarding the application, the Upper Tribunal held that the covenants ought to be modified to allow the affordable housing.

The modification of restrictive covenants is not ordered lightly by the Upper Tribunal and the judgment is interesting for its careful evaluation of what constitutes a 'benefit' from a restrictive covenant. The Hospice clearly benefited from the privacy of their grounds and the views available to children walking or being wheeled around the edges of the land. Mr Smith did not derive 'any practical advantage … in the covenant preventing him from seeing houses from his cabbage field'. 

Guy Willetts and Charlotte Doughty of Trowers & Hamlins LLP acted for Housing Solutions in this case.

Landlord permitted to include lift maintenance costs in its service charge demands issued to assured tenants

In Anchor Hanover Group v Cox [2023] UKUT 14 (LC) the Upper Tribunal (Lands Chamber) has ruled that a landlord was entitled to include the costs of lift repairs and maintenance as part of the service charges demanded from its assured tenants. 

The Upper Tribunal held that the implied repairing obligations on a landlord contained in section 11 of the Landlord and Tenant Act 1985 do not extend to cover a lift in the common parts of a building and therefore the costs could be recovered through the service charge.

The crucial questions for determination were whether a lift was part of the structure and exterior of the building or one of the installations in the building covered by section 11 of the 1985 Act. The First-tier Tribunal had concluded that it was and therefore the repairs and maintenance costs could not be funded through the service charge. The Upper Tribunal disagreed, finding that whilst the lift was both a common facility and essential to the residents, one could not identify this as either part of the structure or exterior of the building, or as one of the installations specified by the Act. 

Accordingly, notwithstanding commentary on the Shelter and Citizens Advice websites to the opposite effect, the Upper Tribunal concluded that lift maintenance costs fell outside section 11 and therefore the landlord was entitled to include them within the service charge.  

This case will be of particular interest to registered providers of social housing and offers useful guidance of potentially wider application as to which maintenance costs can be included within the service charges demanded from assured tenants.

Insights from around the firm

Positive news

'How barbers in London are giving poor mental health the chop.'

A barber shop in Islington offers more than a trim, but a counselling session as well. This pioneering mental health initiative includes five barbers trained in the necessary skills and is part of the Young Black Men and Mental Health Programme.

'Hero boy, 4, saved family from carbon monoxide poisoning'

4 year old Grayson Taylor awoke his parents at 01:15AM to alert them of the beeping noise which turned out to be the carbon monoxide alarm going off next to their wood burner. His quick thinking saved the lives of him, his parents and his 7 month old sister, Dotty. 

'Wrexham boy gets first football boots'

Carter was diagnosed with Cerebral Palsy and was told he would not walk until he was seven. He has defied the odds and is playing in his first pair of football boots now, at age four!


Trowers advises on £64.3m financing of luxury retirement complex development 


Trowers advises Housing Solutions on significant portfolio purchase


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