The Supreme Court has finally handed down its eagerly awaited judgment on the vexed question as to whether the use of the viewing platform at the top of the Tate Modern gallery which overlooks a number of luxury residential glass fronted flats amounts to a nuisance.

In a 3-2 majority verdict, overturning the previous judgments in the High Court and the Court of Appeal, the Supreme Court found in favour of the residential flat owners and the case has now been referred back to the High Court for determination of the appropriate remedy.

The decision is hugely important for the law of nuisance, and particularly for developers and those whose private rights may be infringed by a particular development, as the court has now resolved a number of long-standing legal issues. Firstly, the court concluded that visual intrusion by means of observing can constitute a private nuisance. Secondly, the fact that a party occupies a sensitive building (in this instance one that is made of glass and is therefore easily overlooked) is not a complete defence to the claim.

The critical question the court had to grapple with was whether the operation of the viewing gallery is necessary for the common and ordinary use and occupation of the Tate’s land.  Lord Leggatt, who gave the leading judgment, held that it was not an ordinary use of the Tate’s land and compared the residents to “being on display in a zoo.”

In both the High Court and the Court of Appeal the judges concluded that any impact on the residents’ loss of privacy could be ameliorated by the residents “lowering their solar blinds” or installing other means to block the view from the gallery.  In an unusually candid remark by Legatt he went on to say that he suspected that the rejection of the claim by the courts below was based on “a reluctance to decide that the private rights of a few wealthy property owners should prevent the general public from enjoying an unrestricted view of London."

Developers will need to take heed of this decision and think carefully about whether adding features like balconies and roof gardens on office blocks will overlook neighbouring residential flats.