Friday, 3 February 2023

Don’t Look! Has the Supreme Court Created a New Tort of Overlooking?

In a surprise move, the Supreme Court has overturned* an earlier ruling of the Court of Appeal and ruled that use of the Tate Modern viewing platform by members of the public is a nuisance to neighbouring flat owners.

The Court’s ruling is the culmination of a long running dispute between the owners of flats adjacent to the Tate Modern extension, on the south bank of the River Thames in central London, and the trustees of the gallery.

The modern flats include “winter gardens”, a type of indoor balcony with floor to ceiling windows looking out over London.

The flats were constructed between 2006 and 2012, around the same time the Blavatnik Building was built, which is the name given to the Tate’s extension, and which has a viewing gallery on its top floor running along all four sides giving a 360-degree panoramic view of London.

The viewing gallery attracts hundreds of thousands of visitors a year. From the south side, visitors can see directly into the “winter gardens”, through to the central living accommodation of the flats. Visitors frequently look into the flats, sometimes with binoculars, and occasionally take photos which are posted to social media.

The flat owners have claimed throughout this litigation that by allowing visitors to look into their flats, the Tate committed the tort of nuisance, and have sought an injunction against the Tate to close part of the viewing gallery.

Private nuisance is a common law tort, which is defined as an unlawful interference with a landowner’s use or enjoyment of their land.

Over the hundreds of years that the tort of nuisance has existed and been developed by the courts, there has never been a reported case in England and Wales in which a court has found that overlooking by a neighbour constituted nuisance. On the contrary, the courts have found that, subject to planning permission being granted, a landowner may create windows which overlook a neighbour’s property.

The general principle in common law is that anyone may build whatever they like on their land. It’s planning law that controls what can be built as a matter of public policy. There is also the law relating to rights of light and air, which may in certain situations inhibit a landowner’s ability to build, but rights of light were not an issue in this case.

The Court of Appeal did not want to expand the tort of nuisance to include overlooking as it felt that doing so could open the floodgates to complaints in cases where planning permission is granted to include a balcony or other structure overlooking property.

The Supreme Court’s ruling (made with a narrow three-to-two majority) that overturns the Court of Appeal’s reasoning has been controversial, to say the least.

It’s going to be significant for developers of any buildings in confined urban settings, although only time will tell how significant.

The judgment appears to have turned on the Supreme Court’s interpretation of the particular facts in this case.

Lord Leggatt, who gave the leading judgment, ruled that whilst mere overlooking does not give rise to a liability for nuisance, which in one sense answers the question posed by this blog title in the negative, in this case the use of the viewing platform amounted to an extreme form of “intense visual intrusion” and “intolerable interference with their freedom to use and enjoy the property” in a way which did give rise to liability in nuisance and could not be justified by the “rule of give and take”.

“Ordinary use” is to be judged by having regard to the character of the location, and it was held that use of the viewing platform was not a common and ordinary use of the Tate’s property. Lord Leggatt even went so far as to compare the use of the viewing platform to a zoo.

Many on social media have taken the opposite view, branding the outcome a Nimby’s charter, and have pointed out that if you choose to live in a flat with floor to ceiling walls of glass, then what do you expect?

The Supreme Court did not buy this argument however and instead focussed on their reasoning that the Tate was not using its building in an “ordinary” way, so it was not correct to say the design of the flats had in itself increased the likelihood of such a nuisance.

The Supreme Court also did not think it reasonable to expect the flat owners to take steps to avoid being seen, such as by putting up blinds or net curtains, as was suggested in the High Court, as this would place responsibility on the victims of the tort.

The High Court will now determine what remedy is appropriate – injunction or damages – and to that extent public interest considerations may be relevant.

Although the set of circumstances here are unusual, the outcome of this case will undoubtedly increase the likelihood of questions of privacy being raised by objectors to developments.

This is especially true in the less unusual cases of CCTV or being photographed or filmed from a neighbouring property, where further issues of privacy could be explored.

Courts will have to draw the line between reasonable give and take between neighbours and exceptional cases that give rise to a nuisance claim. There are bound to be instances in future where it’s not clear at the outset on which side of that line a proposed development sits.

*Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent) [2023] UKSC 4

Postscript 9/2/23: The more I think about this case the more it seems to me to be an issue that really ought to have been dealt with at the planning stage, in this case the planning of the Tate extension. As I indicate above, the extent to which the peculiar circumstances of this case will have a general impact on the law of nuisance remains to be seen, but it's nevertheless an example of  the private law doctrine of nuisance being used to rectify a public law mistake in planning.

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