Background
On 1 February 2023 the Supreme Court handed down its judgment in Fearn and Others v the Board of Trustees of the Tate Gallery. The case had been brought by owners of four flats in the neighbouring Neo Bankside development seeking an injunction to prevent intrusive viewing into their apartments by visitors to the public viewing platform located within the Blavatnik Building extension to the Tate Modern.
It was apparent that the owners of these flats had in practice suffered a very substantial degree of visual intrusion. The High Court Judge (in the original trial of the claim) being satisfied that for much of the day, every day of the week, the occupants were subjected to scrutiny by gallery visitors including being photographed and filmed. The flat owners were deeply concerned as to the impact this intrusion had on the use and enjoyment of their properties.
This case is important as it concerned the question of whether an owner of property can rely on the law of nuisance to seek to prevent (or be compensated for) intrusive overlooking from a neighbouring property. Previously there had been no clear legal precedent for obtaining an injunction (or damages in lieu) simply on the basis of being overlooked.
Key aspects of the law of Nuisance
The law of nuisance is a long-standing principle of English Law and is concerned with cases where there is harm to the use and enjoyment of a party’s land. The Tate Modern case concerned the questions of whether the viewing of and into these flats by people on the viewing gallery caused a substantial interference with the use and amenity of them and, if so, whether this constituted an actionable nuisance.
At High Court level the Judge considered that intrusive viewing could constitute an actionable nuisance but concluded that the claim had not been made out on the facts. On appeal the Court of Appeal followed the more conventional route and rejected the proposition that “overlooking” could form the basis of a claim in nuisance. The Supreme Court took a different approach albeit by a 3:2 majority rather than unanimous decision.
Key findings of the Supreme Court
The leading judgment in the Supreme Court was given by Lord Leggatt. He focused on what he considered to be the two main constituent parts for a claim in nuisance, namely: –
- whether there had been a substantial interference with the ordinary and common usage of the Neo Bankside flats; and
- whether the use and operation of the viewing platform by the Tate Modern could be said to be part and parcel of the ordinary and common use of an art gallery.
The Judge decided that the occupiers of the flats were using their flats in the ordinary and common course as dwellings and that the extent of the visual intrusion by visitors to the viewing gallery did constitute a substantial interference with their use and enjoyment of them.
By contrast, and importantly, the Supreme Court did not consider that the creation of a 360-degree viewing gallery of the kind present in the Blavatnik Building was within the normal and common use of the Tate Modern buildings.
On this basis the Court upheld the flat owners’ claim that visual intrusion by visitors to the viewing gallery constituted an actionable nuisance and the flat owners were therefore entitled to a remedy from the Court. What remedy that should be (injunction and/or damages) has been remitted back to the High Court for determination.
Two further points of note from the judgment are with respect to the role of planning and the question of whether a prospective claim for relief could be sought. On the former point, the Court confirmed that (as is the case with rights of light claims) the fact that a scheme has secured planning permission does not preclude a claim in nuisance being brought for visual intrusion if the circumstances warrant it. We anticipate that in practice greater scrutiny to overlooking may well now be given by local planning authorities when considering planning applications.
On the latter point, importantly, the Court indicated that a claim could not be brought with respect to anticipated visual intrusion that has not yet in fact occurred. Lord Leggatt commented that it was not desirable to have litigation about possible future conflicts that may never actually occur.
How broad are the implications of this case?
This judgment is plainly significant with respect to claims relying on the law of nuisance. It is, however, important to focus both on what the Court did decide and also what it did not.
As a first step, and as Lord Leggatt made clear, this judgment does not create a general right not to be overlooked. The relevant considerations are not simply whether a property is physically overlooked by another nor indeed whether it is possible to look into or over a neighbour’s land. Neither of these of themselves would constitute an actionable nuisance. The two key factors identified by the Judge are, first, whether the visual intrusion into a neighbouring property is such as to substantially interfere with the ordinary use and enjoyment of that property and, second, whether the property (or the relevant part of it) from which the viewing takes place is being used in its ordinary and common way.
A claim in nuisance would not therefore arise simply because neighbouring buildings face each other if those buildings are simply being used in their ordinary and common way. For example, if there are two residential towers which face each other, and each tower contains windows whereby in practice the occupiers of the flats in one building could (if they so chose) see into flats in the neighbouring building that would not, of itself, give rise to any claim in nuisance if the flats were being used in the ordinary and common way. The Court made clear that the ability to see out of one’s own windows, and potentially see into those of a neighbour, is simply part and parcel of the give and take of being in neighbouring buildings.
In circumstances where there might be a potential risk of a claim in nuisance for visual intrusion consideration should clearly be given to screening measures or other design features to reduce or remove the prospect of a neighbour being able to complain of any, or any material, visual intrusion.
Claims in nuisance seeking to rely on the decision in Fearn may well now come forward. How many will be successful in practice will remain to be seen. Lord Leggatt himself stated that the circumstances in which land is used in an unusual way which leads to visual intrusion of sufficient duration and intensity so as to be actionable are likely to be rare. This said he did comment that the potential for such claims had markedly increased due to advances in technology which facilitated filming and photography and that being filmed or photographed would be a far greater interference than being observed with the naked eye.
There will plainly be much room for argument about whether or not a feature in a development (which permits intrusive viewing of neighbouring buildings) does constitute ordinary and common usage.
Equally there will be room for argument over whether the extent of overlooking in any given situation does result in a substantial interference with the ordinary and common usage of the neighbour’s property. Importantly, the test of whether the impact on the neighbour is material and actionable is objective rather than subjective, i.e. the Court will have regard to whether the visual intrusion is such as to cause a substantial interference from the perspective of an ordinary or average person rather than the specific individuals in the neighbouring property itself.
Key takeaways from the Judgment
The Tate Modern case does not create any general right on the part of a neighbour not to be overlooked nor does it create a general right to privacy.
The case stands as authority for the law of nuisance applying to substantial visual intrusion into a neighbour’s property where the facts justify it (in the same way as it applies to potential claims being brought with respect to noise, dust and loss of light).
It does raise the potential for property owners to seek an injunction (or damages) where, objectively, they are suffering substantial interference with the ordinary use and enjoyment of their property as a result of actual intrusive viewing from a neighbouring property (or a relevant part of it) which is not being used in an ordinary and common way. The circumstances in which this would arise, however, were likely in Court’s view to be rare.