The case of Fearn -v- The Board of Trustees of the Tate Gallery [2020] is one which you may already be aware of or may have recently seen mentioned in the news. This case relates to an application by some leaseholders of the Neo Bankside development (Bankside), situated directly opposite the Tate Modern Gallery (The Tate), for an injunction to stop the public use of the south side of the relatively new viewing gallery constructed as part of the extension to the Tate (the Blavatnik Building). This viewing gallery offers 360o views of London to the estimated 500,000 visitors to the Tate every year, but also, to some of the residents of Bankside, direct views into their flats.

Background

Bankside is a luxury development of commercial and residential units, constructed between 2006 - 2012 and situated on the South Bank beside the Tate. The residential units include a glass-walled living area which was the centre of the dispute with the Tate. The floor to ceiling glass windows gave direct views into the flats from the south side of the viewing gallery at the Tate.

The Tate had sought to appease the residents of Bankside when the issue was first raised. The Tate installed signs asking visitors to the viewing gallery to respect the privacy of the Bankside residents and hired security staff to stop anyone from taking photos or using binoculars to look into the flats. This was, presumably, to little effect and certainly not enough as far at the residents were concerned. The residents therefore sought to obtain an injunction against the Tate. This injunction was to stop the use of the south side of the viewing gallery, as it was said to be ‘interfering with the residents of Bankside’s quiet enjoyment of their properties’, to such an extent that it constituted a nuisance.

The first hearing

At the first hearing in the High Court, there were a number of factors that were considered by the Court in deciding whether to grant the injunction. In the main, the Court decided that the residents had purchased ‘particularly sensitive’ properties. This referred to the floor to ceiling glass windows. When the properties were built, this space was intended to be used as something of an indoor balcony (often referred to as ‘winter gardens’). However, the residents had instead incorporated this space into the general living area of the flat. This lead the Judge, Mr Justice Mann, to find that the residents were using the properties in a ‘particularly sensitive manner’ as well. The Judge therefore found in favour of the Tate. 

It was decided that there was no nuisance by the use of the viewing gallery and the injunction was refused. The Judge instead suggested that the residents lower the blinds or install curtains to alleviate the issue. The residents, as you might expect, were still unhappy and appealed the decision.

The Court of Appeal’s decision

On appeal, the Court of Appeal also found in favour of the Tate but for different reasons. They disagreed with the reasoning of the High Court in deciding that there had not been a nuisance, and instead looked at whether ‘overlooking’ could even be considered as a nuisance in the first place and, therefore, whether those affected could be entitled to legal remedies.

The Court of Appeal considered two main factors in considering this question:

1. Was the use of the flats ordinary and reasonable, having regard to locality? And; 

2. Had the viewing platform caused material damage to the amenity of the value of flats?

If the answer to both of these questions was ‘yes’, then there could be a liability in nuisance. However, the task for the residents was to convince the Court of Appeal that a nuisance extended to ‘overlooking’.

The Court of Appeal took into account a long line of previous case law authorities on the concept of nuisance and came to the decision that ‘overlooking’ could not constitute a nuisance in law. At its heart, the complaints were about an invasion of privacy, rather than of damage to property interests, which is at the centre of nuisance in legal terms (in this respect, we attach our Legal Update from July 2019 which looks at the legal concept of nuisance).

The Court of Appeal therefore rejected the resident’s appeal, stating that if ‘overlooking’ were to form part of what could be a nuisance claim, then it was not a decision for the Courts to make. This would have to be reviewed by Parliament and the law changed as it has for other privacy issues, for example with Data Protection laws. The Court went on to say that interests in the locality should properly be protected by planning laws and controls, rather than private nuisance claims after the event.

In reaching this decision, the Court emphasised the principle established from earlier case law that the law does not always provide a remedy for every annoyance to a neighbour, however considerable that annoyance may be. 

Conclusion

The outcome of this case can effectively be summarised in a very brief sentence - ‘Overlooking’ does not constitute a nuisance, and (for the time being) will not unless Parliament were to change the criteria for what can be considered a nuisance. This is not to say that this will not happen in the future, but as it stands, simply ‘overlooking’ into to someone’s property is not an actionable nuisance.

UPDATE - Since this article was written this matter was appealed to the Supreme Court by Fearn (the leaseholders of the flats affected by the viewing platform) and on 1 February 2023 the Supreme Court handed down its judgment reversing the finding of the Court of Appeal detailed above - See the update to this case in our Legal Update of 3 February 2023 here.

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