A different point of view: “overlooking” can be a nuisance

• United Kingdom

• Real estate dispute resolution
• Real estate litigation - LawBite

02-02-2023

Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4

The Supreme Court has handed down its long awaited decision in this case involving overlooking from London’s Tate Modern viewing gallery. The claim is significant as the Supreme Court (by a majority of 3:2) allowed the appeal and in doing so confirmed that "overlooking" can be an actionable form of nuisance. The case will now return to the High Court who will determine the appropriate remedy. The decision will be of particular interest to landowners and developers.

The owners of four luxury flats in the prestigious Neo Bankside development adjacent to the Tate Modern sought an injunction. Their aim was to restrict the use of the Tate’s 360 degree viewing platform on the 10th floor of its Blavatnik Building to prevent visitors “observing” them in their flats.  Alternatively they sought damages for this intrusion.

The platform was designed to afford visitors to the Tate a panoramic vista over London, but incidentally also afforded a direct view into a number of flats in Neo Bankside. The owners of the flats complained that they were subject to being “more or less constantly watched”, with the Tate visitors using binoculars to peer into the flats, taking photographs, waving and occasionally making obscene gestures.

The High Court dismissed the residents’ claim when they considered the matter in 2019. It determined that whilst "overlooking" was an actionable form of nuisance, there was no nuisance in this case. In effect, the “price” that the residents paid for the views afforded by the glass-frontage to their flats was that it necessarily exposed them to increased privacy sensitivity.

The Court of Appeal dismissed an appeal made by the residents and further decided (disagreeing with the High Court on this point), that overlooking by neighbours is not capable of giving rise to a cause of action in private nuisance. The residents further appealed.

The Supreme Court reviewed the law relating to nuisance and concluded (by majority of 3:2) that the residents did in fact have a claim under common law nuisance.

In delivering the leading judgment (with which Lord Reed and Lord Lloyd-Jones agreed) Lord Leggatt likened the residents’ living circumstances as oppressive and like “living in a zoo”. He had no doubt that the nature and extent of the viewing of their 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. Further, they determined that the viewing and photography caused substantial interference with the ordinary use and enjoyment of the residents’ properties.

The question of what remedy will be imposed returns to the High Court for consideration. It therefore remains to be seen whether the residents will be awarded an injunction preventing the use of the viewing platform, or imposing on The Tate mitigation criteria, or instead whether they will receive a sum of damages in compensation.

• “overlooking” is actionable in nuisance
• we may well see further claims based on nuisance where one party is overlooked from another building. However, careful advice should be taken before issuing such a claim, as there could well be many distinguishing factors
• it is important to remember that it is no defence in nuisance claims to say that the complaining party has “come to the nuisance” – i.e. has moved into a property knowing that a neighbour carries on a particular activity which might create annoyance. As such the question of who was there first was irrelevant – although in this case the development of the Neo Bankside development and the viewing gallery took place at the same time
• it appears that neither the Tate Gallery developers nor the Neo Bankside development had considered the effect of the viewing platform or foreseen the level of intrusion, suggesting that a better dialogue at an early stage may have been helpful and stands as a lesson for developers going forward
• there was no need here to invoke human rights law (in particular Article 8 of the European Convention on Human Rights) - the principles developed under common law being said to be sufficient to determine when liability arises in a dispute of this kind