In a landmark judgment the Supreme Court has confirmed that overlooking from one property to another is capable of being a private nuisance.
The decision of the Supreme Court in Fearn & Others -v- The Board of Trustees of the Tate Gallery has been eagerly anticipated. It's been quite a wait; the case was heard by the Supreme Court in December 2021 and Judgment was only handed down today, at the beginning of February. In its majority judgment the Supreme Court found in favour of the residents and rejected the decision of the Court of Appeal. Visual intrusions such as those to which the residents were subjected to in this case, are capable of being a nuisance at common law. The facts of this case are fairly unique, but even so the Judgment widens the ambit of potential claims by neighbouring owners in nuisance.
The Supreme Court remitted the case back to the High Court to decide what remedy should be granted. The viewing platform has been temporarily closed since the onset of the COVID-19 pandemic, and it remains to be seen whether it will re-open at all in light of today’s decision.
What was the case all about?
Several residents of Neo Bankside (a development of luxury apartments situated adjacent to the Blavatnik building at the Tate Modern) brought a claim against the Board of Trustees of the Tate Modern. The residents of Neo Bankside said that the Tate's viewing gallery, which is situated on the tenth floor of its Blavatnik extension and runs along all four sides of the building to offer 360-degree views, was a nuisance and an infringement of their right to privacy under the Human Rights Act 1998 (HRA 1998). They sought an injunction requiring the Tate to prevent visitors to the platform from viewing their flats.
Whilst the residents have received little sympathy in the media, their complaint was that they were observed, photographed and filmed by the many visitors to the viewing platform, whilst in their homes. The apartments themselves are unusual in their design and have floor to ceiling glass windows and some of the properties are within 40 metres of the platform. The evidence from some of the residents involved was that they hadn't objected to the planning permission for the Blavatnik Building because they didn't appreciate that there was to be a viewing gallery open to the public.
Background to the appeal
The judge at first instance considered whether the use of the viewing gallery was an infringement of the residents' rights under Article 8 of the European Convention on Human Rights, as incorporated in the HRA 1998. That claim failed because the Judge found that the Tate was not a public body. Mr Justice Mann also had to decide whether the Tate's use of the viewing gallery was a nuisance (an unreasonable interference with a property owner's use or enjoyment of their land). The judge found that the law of nuisance was capable of protecting privacy rights from overlooking, but that the residents' claim failed because they had created or submitted themselves to a greater degree of sensitivity than usual due to the nature of the flats' design, with floor to ceiling windows overlooking the Thames, and could have taken steps to prevent visitors from looking in (such as putting up net curtains or blinds).
The residents' appeal to the Court of Appeal also failed, but for different reasons. The Court of Appeal unanimously decided that 'overlooking' from one property to another was not a nuisance and they observed that there had never been a reported case in which a court had found that to be the position. They drew analogy with rights of light cases which have established that there is no right to light at common law. The residents appealed to the Supreme Court.
Supreme Court decision
The Supreme Court held that visual intrusion can be a nuisance and is in this case. It was no answer to the claim of nuisance to state that the residents' homes should have been designed differently, nor should the residents have been expected to install blinds. Responsibility for the nuisance is not on the victim. The Court drew the analogy with noise nuisance, in which the victim would not be expected to put in earplugs and put up with the noise. Therefore, nor too should the residents have to suffer as a result of the Tate's viewing gallery. The fact that the flats were unusually sensitive was immaterial.
Common and ordinary use of land can never be a nuisance, even if the use disturbs your neighbour. The Court made it clear however that if you are not using your land, it for its common or ordinary use it becomes a nuisance. The Supreme Court drew a distinction between cases involving overlooking where people on the top floor of a building could see inside the homes of others in a neighbouring building. That is not a nuisance because use of a property for offices or as apartments is an ordinary use of the land. In this case by allowing members of the public to observe residents and take photographs of them from a viewing platform, the Tate were not using their property in an ordinary way and the constant visual intrusion in this case, can and did amount to a nuisance.
Implications for the law of nuisance, privacy
Whilst the specific facts of this case are unique, the principles are not. Following this judgment, homeowners may be liable in nuisance for visual intrusions to neighbouring property. In order to succeed in a claim of private nuisance, it would be necessary to establish that the visual intrusion from the property in question was substantial and that use of the property was not within its common and ordinary use of the property.
The Supreme Court gave the example of surveillance cameras and this would seem to open the door to claims in nuisance where one neighbour positions cameras so as to continuously observe a neighbour in their own home.
Additionally, as data protection law requires that "processing" of personal data be lawful, we expect there to be arguments that if use of cameras or other automated viewing and monitoring amounts to an actionable nuisance, it will also infringe the UK GDPR. If such arguments prevail, defendant property owners might also face regulatory action by the Information Commissioner.