The Supreme Court has ruled in the widely publicised case of Fearn v The Board of Trustees of the Tate Gallery  UKSC 4 that overlooking property can indeed amount to a nuisance that potentially entitles the affected party to an injunction preventing the intrusion.
Whilst based on an unusual set of facts, which caused a rare split decision from the Supreme Court, this ruling is something that should be reviewed carefully by all developers when considering their designs for sites adjacent to residential buildings, and by those neighbours likely to be affected by them.
Five key takeaways for developers and neighbours
- Overlooking (which leads to a substantial interference with the enjoyment of the land) can, in principle, amount to an actionable nuisance.
- However, this is not the death knell for big-city developments. The Supreme Court's decision concerns an extreme case and a degree of overlooking that is unlikely to arise in many other situations. By contrast, there is unlikely to be a nuisance where a recently constructed block of flats overlooks an adjacent block of flats in a residential area (as both parties are using the land for a common and ordinary purpose).
- Planning to develop? Ask yourself: "will our development be used for a novel purpose in comparison to our neighbours?" - The majority opinion in the Supreme Court attaches considerable weight to whether the Defendants' use of their land is common and ordinary. If the use is novel and causes a substantial interference, the Supreme Court appear to be saying it is largely irrelevant whether the affected parties' use of their land contributes to the level of that interference.
- Owners of properties with popular viewing platforms - take note! Virtually every large city in the UK has buildings intentionally designed to attract a large number of visitors to enjoy views of the surrounding area - think art galleries, museums or restaurants with ancillary viewing platforms. Whether those are specific viewing galleries or just spaces intended for general use which have views (for example a sky garden), owners of those buildings will now need to consider what impact those viewing platforms have on their neighbours (especially if those neighbouring properties are residential).
- The door is left open for further argument on appropriate remedies - but also as to the importance of "reasonable use" (as stated in the minority decision) and the importance of possible steps the injured party could take to mitigate the impact.
Luxury flats "ruined" by luxury views
This case concerns a long-standing saga involving four owners of the impressive Neo Bankside apartments (the "Apartment Owners") and their frustration with the impact of the hugely popular viewing gallery at the top of the Blavatnik Building at the Tate Modern (the "Tate"). In brief, the Apartment Owners' complaint was that the use of the viewing gallery (which attracts over 500,000 visitors per year) meant visitors to the Tate could overlook their apartments and take photographs/videos of the interiors.
The Tate was aware of this and took steps to protect the Apartment Owners' privacy, including putting up notices and employing security guards to combat intrusive photography. Despite this, the Apartment Owners said this still amounted to an unreasonable interference with the enjoyment of their apartments and was an actionable nuisance that entitled them to seek an injunction preventing members of the public from observing their homes from certain parts of the viewing gallery.
The High Court dismissed the Apartment Owners' claim - whilst the judge held overlooking could amount to a nuisance, no nuisance had occurred on the facts. Factors that were persuasive to the judge included (i) the floor to ceiling glass panels of each apartment meant it would be difficult to avoid being overlooked and (ii) there were steps the Apartment Owners could take to mitigate the overlooking (such as installing blinds).
On appeal, the Court of Appeal agreed with the trial judge's conclusion but disagreed with his reasoning, as there was no precedent to support the premise that overlooking could amount to a nuisance. Instead, it was simply one of many instances where the courts did not provide a remedy for annoyances suffered by a neighbour.
Unperturbed, the Apartment Owners appealed to the Supreme Court. Rightly so, as the Court allowed their appeal by a majority of three to two (and robustly criticised the reasoning of the two courts below it).
Nuisance in a nutshell
There are three types of nuisance affecting private land - encroachment onto land, direct physical injury to land and interference with a person's quiet enjoyment of their land. For the last of these, a complainant must show there has been a material interference with the amenity of the land. A court must assess this objectively, taking into account the locality and the use of the land by each party.
However, if the defendant can show the alleged nuisance is part of the common and ordinary use and occupation of the land (and is done in a reasonable way having regard to the neighbour's interests), there is no actionable nuisance. For example, carrying out noisy repairs to your home is a common and ordinary activity so will not normally be a nuisance, but it may well be if you carry them out at midnight as opposed to during the day.
Can overlooking be a nuisance?
Even though the decision was split as to the outcome, the Supreme Court was united in holding that overlooking can be a nuisance, and the Court of Appeal was wrong to conclude otherwise. This was largely because the Court of Appeal had conflated the act of "merely" overlooking into another person's property with the consequences of the spatial relationship between two properties (i.e. that one overlooks the other). Given the severe level of visual intrusion into the apartments in this case (which was compared to living in a zoo), there was no reason in principle why this could not be a nuisance.
The Supreme Court held the Court of Appeal had incorrectly concluded this was about overlooking, whereas instead of focusing on the fact the viewing platform physically overlooked the apartments, the Court of Appeal should have considered the Apartment Owners' actual complaint. Namely, that the Tate's use of the viewing platform meant the Apartment Owners were being constantly observed (and photographed on phones) by the general public for hours each day, which amounted to an intense visual intrusion. In short, the issue was not the viewing platform itself but the Tate's use of it.
The importance of being ordinary
The majority of the Supreme Court held that the trial judge had fundamentally asked himself the wrong question - rather than ask whether the Tate was making an unreasonable use of its land, he should have instead asked whether it was a common and ordinary use. Even in the context of being in central London, the Supreme Court considered a viewing platform used by hundreds of thousands of people a year to be an exceptional use of its land, which materially interfered with the Apartment Owners' enjoyment of their flats.
Importantly, the majority considered it was no defence that the design of the Apartment Owners' flats meant this was unavoidable, or that there were steps they could take to mitigate the overlooking. In their view, this would wrongly place the burden of negating the interference on the Apartment Owners (who were the injured party, simply using their property in a common an ordinary way), rather than the Tate (whose use of the viewing platform was the cause of the problem).
The minority disagreed; holding that in addition to ordinary and common use the Court must also consider whether the use was "reasonable" bearing in mind the "give and take" neighbours should expect of each other. So, whilst the viewing gallery was an exceptional use, the court should consider other factors, such as the design of the apartments or any mitigation measures the neighbours could reasonably take.
In the judgement of the majority, "reciprocity", or give and take between neighbours, is important but those considerations do not prevent nuisance arising, rather they could be relevant to the legal remedy that is the extent of any injunction preventing use of the viewing gallery or whether damages might be an appropriate remedy instead of an injunction. The case was therefore sent back to the Judge to consider those matters.
To discuss any of the issues raised in this article, please contact our real estate litigators Martin Thomas, Thomas Kiernan or Emilie Beek.