The Supreme Court has given its judgment in Fearn and others v Tate, and has widened the law on private nuisance to include being “overlooked” for the first time.
A nuisance claim was brought by the leasehold owners of several flats in the “striking” Neo-Bankside development in London – with floor to ceiling windows – on the South Bank of the River Thames.
The complaint was that their neighbour, the Tate Modern Gallery, had built a viewing platform which, as well as giving its visitors great views over London, also gave them a direct view into the flats.
Fed up with being overlooked and photographed by visitors to the Tate, the owners of the affected flats brought a claim in nuisance.
The High Court and Court of Appeal both dismissed the flat owners’ claim, but for different reasons. Overruling the previous judgments, in what they called an "entirely straightforward" decision, the majority of the Supreme Court allowed the flat owners’ appeal, and for the first time, widened the law of private nuisance to include being overlooked.
The High Court was willing to extend the law of nuisance to include being overlooked, but dismissed the claim on the basis that the flats’ unusual, fully glazed, design effectively caused the nuisance, and the residents hadn’t taken measures to prevent it, such as installing net curtains.
The Court of Appeal took a different approach. It said that the flat owners’ normal use of their properties hadn’t caused the nuisance, nor should they be required to take steps to prevent the nuisance. However, they considered the claim must fail, because the law of nuisance did not extend to “mere overlooking”.
In the Court of Appeal’s view, the purpose of the law of nuisance was to protect against infringements to property rights, not personal privacy, which was better dealt with through the existing laws around breach of confidence, harassment and data protection . They also pointed to the planning process as a better way of dealing with overlooking than the courts.
They also flagged the objective difficulty in determining what level of overlooking amounts to a nuisance. In a neighbourhood context, being overlooked by one neighbour could be considered as much of a nuisance as a viewing gallery, and it is difficult to draw a line.
The Supreme Court established that being overlooked by visitors from the Tate amounted to a “substantial interference” with the flat owners’ use and enjoyment of their properties "much like being on display in a zoo".
Common and Ordinary Use
In determining whether this amounted to a nuisance, the Supreme Court then considered whether the Tate’s viewing gallery amounted to a “common and ordinary” use of the property.
The key principle, the Supreme Court said, is that there should be some "give and take" between neighbours, and that each can be expected to tolerate the other's "common and ordinary use" of its property, but no more.
What amounts to "common and ordinary use" will depend on the locality and while, in this case, both properties were in a built-up, Central London tourist location, the Supreme Court viewed the Tate’s use of its property as so abnormal that the overlooking amounted to a nuisance.
No public benefit defence
The Supreme Court suggested that the lower courts' decisions could have been driven by 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".
The fact that the viewing gallery was arguably for public benefit was not a defence to liability for a nuisance claim; the law of nuisance existed to protect each party's property rights, and any breach must be compensated. However, public benefit could be a factor in determining whether an injunction or merely damages was the appropriate remedy.
Can the "victim" ever be responsible for the nuisance?
The Supreme Court agreed with the Court of Appeal in rejecting the High Court’s suggestion that the residents were responsible for the nuisance because of the glazed design of their flats, emphasising "the basic right of a person…to occupy and build on their land as they choose".
It was, the Supreme Court said, the Tate's abnormal use of its land, which 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", which caused the nuisance, not any particular sensitivity of the flats themselves. Had the Tate been using its space in a "common and ordinary way", the flat owners would have had to put up with any additional annoyance caused by the glazed design.
The Supreme Court also rejected the suggestion that the residents should take measures to avoid or lessen the nuisance, such as by putting up net curtains, and made clear it was not their responsibility to mitigate the Tate’s unusual use of its land, equating it to an argument from a burglar that their victim should "have installed stronger locks".
More than "mere overlooking"
The Supreme Court disputed the idea that applying the law of nuisance to "visual intrusion" was an extension of its scope, and that it could not be objectively defined.
While the Supreme Court agreed with the Court of Appeal that “mere overlooking” could not amount to a nuisance, they said that the claim was not about being overlooked but the "very particular and exceptional use of land" by the Tate – where visitors were invited onto the property for the express purpose of viewing the surroundings, including the flats – which went well beyond the give and take expected of ordinary neighbours.
They also distinguished the role of planning law, which was to control development in the public interest, from private nuisance, which protected individual property rights.
This initially appears to be a ground-breaking judgment, extending the law of nuisance to include being overlooked.
However, the Supreme Court made it clear that to be actionable, any nuisance must, objectively, be "substantial".
They also distinguished this exceptional case from, for example, neighbouring flats overlooking one another. In those circumstances, as long as residents were using their flats in a normal way, there would be no actionable nuisance, and each would be required to put up with the annoyance of the intrusion by the other, in line with the expected "give and take" between neighbours.
As such, the case doesn’t give rise to a “balcony ban”, but it remains to be seen where the Courts will draw the line between the everyday give and take between neighbours and “exceptional” cases giving rise to a nuisance claim.
It also serves as a warning, particularly for hotel and leisure property owners, not to “overlook” their neighbours.