But problems can arise if a change in use could cause a potential nuisance to neighbouring properties.

The planning rules have, in recent years, become increasingly relaxed facilitating changes in use of commercial property in a more flexible manner – and less susceptible to delays traditionally caused by the planning process.

That said, in the case of leasehold property there will also be rights and restrictions within the lease impacting the use of the property with which commercial tenants need to be well-acquainted with (or risk issues further down the line). Landlord consent to change of use is likely to be required.

However, and particularly where the result is residential accommodation in close proximity to commercial occupiers, repurposing a property could cause a common law nuisance to neighbouring properties to the extent that a claim may arise. A claim is likely if undue interference is caused to the neighbour’s use and enjoyment of their land.

In early 2023, the Tate Modern Gallery was dealt a blow with the Supreme Court’s decision (overturning the lower court’s ruling) that its viewing platform – a 2016 addition to the Tate Modern - caused a nuisance to the neighbouring flat owners because it facilitated and invited intrusive observation.

Lord Legatt confirmed that “anything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land is capable of being a nuisance”. The Gallery’s ‘public utility’ and general benefit to the community argument was rejected.

The SC ruling makes clear that if an occupier uses their premises in a common and ordinary way and with reasonable consideration for their neighbours, a nuisance claim will not succeed. In this case, the nature and extent of the viewing of the claimants’ flats went “far beyond anything that could reasonably be regarded as a necessary or natural consequence of the common and ordinary use and occupation of the Tate’s land”.

Limitation period

The limitation period for a nuisance claim is six years; but potential defendants should be mindful that in the case of a ‘continuing nuisance’, the limitation period is ‘reset’ every time the cause of the nuisance is repeated.

In Jalla v Shell [2023] UKSC 16, the Supreme Court rejected a nuisance claim by two claimants who argued that an oil spillage caused a continuing nuisance to their land. The oil leak was a single event, not a continuing nuisance.

Lord Burrows confirmed: “For a continuing nuisance, the interference may be similar on each occasion but the important point is that it is continuing day after day or on another regular basis... for example, smoke, noise, smells, vibrations…The cause of action therefore accrues afresh on a continuing basis.”

Practical points

In the Tate ruling, Lord Legatt notes the appeal court’s suggestion than planning laws and regulations would be better than the common law of nuisance for controlling “inappropriate overlooking”. However, he points out that planning laws and the common law of nuisance have different functions; that planning laws are not a substitute for the protection afforded by the common law of nuisance.

It was also noted that no consideration had been given during the planning process for the Tate Gallery extension to the issue of overlooking. This turned out to a costly failure.

Overlooking claims will be exceptional, but noise, smells and vibration from plant and machinery are all much more common flashpoints. Any changes to commercial property use, repurposing or additions to commercial property must entail proper consideration of the potential implications on any neighbouring property.

A detailed webinar from The Solicitors Group on repurposing property and the potential implications for neighbouring property owners is available in our LAW2024 Online: Commercial Property Autumn Event.