Have the floodgates opened for claims in nuisance based on overlooking?
Has the recent Supreme Court decision in Fearn & Others v Board of Trustees of the Tate Gallery opened the floodgates for claims in nuisance based on overlooking?
The decision in Fearn v Tate was probably not a great surprise to many in the property litigation world, in no small part due to the publicity surrounding the case (leading to a flurry of articles in the tabloids both before and after the judgment) as well as the standing of the Defendant. The extremity of the case made the decision almost inevitable.
The Tate decision was based on a very unique and narrow set of facts – a central London location; a purpose-built viewing gallery on top of an art gallery offering 360° city views, and used by over 500,000 people a year, including those who photographed directly into the flats; a neighbouring residential building with floor-to-ceiling windows, including some flats “at about the same height above ground level as the viewing gallery”, resulting in “constant observation […] for much of the day, every day of the week”.
All good lawyers know that each case turns on its facts, and Tate is no exception. As such, it remains unlikely that a similar case would or could ever be run in the future, primarily because the unique combination of facts as summarised above will probably never arise again. The Supreme Court stated clearly in their judgment that “the circumstances in which land is used in an unusual way which gives rise to visual intrusion on a neighbouring property of sufficient duration and intensity to be actionable as a nuisance are likely to be rare”.
It is clear from both the Tate case and the authorities which preceded it that the test for nuisance remains high. As the Supreme Court kindly reminded us, any successful claimant needs to objectively show an unreasonable and substantial interference with the use and enjoyment of land. Nuisance does not deal with the ordinary use of land, but rather the un-ordinary use of land. Your neighbour using their lawnmower might be annoying, but it is not an actionable nuisance. Your neighbour mowing the lawn at 3am, however, is potentially a different matter. Your neighbour being able to see into your back garden is not an actionable nuisance, as invasive as it might feel. For overlooking in that context, you would need something as extreme as the hypothetical example of Mann J, being a “viewing tower whose only purpose is to enable views into the gardens and houses of other neighbours”, with an entry fee being charged “to allow members of the public to come in and do just that” which, following the Tate decision, is unlikely to ever become reality.
Overlooking as a ‘problem’ has always existed, and with more and more land being developed, will continue to exist – but Tate will not lead to a floodgate of viable claims in nuisance for overlooking. Only extreme cases will be viable, and they will remain rare.