Posted on February 23, 2023 by Megan Hawley, Liam Mulligan and Dimitrious Havadjia 5

UK Court declares overlooking can constitute private nuisance

The tort of nuisance provides common law protections for owners and users of land against substantial and unreasonable interference by others with their use and enjoyment of the land. This usually includes things like preventing neighbours from creating loud noises, excessive light, and oppressive smells.

Classically, the tort of private nuisance did not extend to ‘overlooking’, which is the interference caused by others looking at the land (or into the structures on that land). However, in a recent case the UK Supreme Court in a 3-2 majority, has, for the first time, held that overlooking can be an actionable claim under the tort of nuisance.

Background of the UK Case

In 2016, the Tate Modern Art Museum in London constructed a 360-degree viewing platform that approximately 500,000-600,000 people used every year. This viewing platform also provided a direct view into the glass walled living areas of those living on the 13th to 21st floors of the neighbouring Neo Bankside residential and commercial development, which was built prior to the viewing platform.

Some of the residents of the Neo Bankside apartments filed a nuisance claim in an effort to stop visitors from looking into their apartments and taking pictures.

The trial judge noted that: ‘[a] major part of what catches the eye [from the platform] is the apparently clear and uninterrupted view of how the claimants seek to conduct their lives in the flats. One can see them from practically every angle on the southern walkway’. It was noted that the residents may feel uncomfortable because of the visitors being able to see into their living areas. However, the trial judge denied relief to the residents, instead suggesting they install blinds to stop visitors to the Tate from looking into their apartments.

On appeal, the Court of Appeal found that laws regarding privacy and harassment were more appropriate remedies for the residents, and that there was no nuisance claim for a ‘mere overlooking’.

However, in a lengthy judgement, a majority of the UK Supreme Court (the UK’s highest court) overturned the Court of Appeal’s decision.

The Supreme Court found there was a claim in nuisance and remitted the matter back to the lower courts to determine the appropriate remedy, including the award of any damages. The decision can be read in full here: Fearn v Tate Gallery [2023] UKSC 4.

Scope of nuisance

The Supreme Court noted that the tort of private nuisance protects from a diminution in the utility and amenity value of the claimant’s land, and that there is no conceptual limit to what can constitute a nuisance. Anything short of direct trespass onto a person’s land which materially interferes with the claimant’s enjoyment of the rights in the land is capable of being a nuisance.

The Court said it is obvious, as a matter of fact, that an activity of erecting a viewing tower to provide views into a neighbour’s house and garden could substantially interfere with the ordinary use and enjoyment of the neighbour’s land.

Ordinary and Common Use of the Land

The Court noted that the claimant must be using its land in the ordinary way.

Further, the Supreme Court held that to determine whether an interference constitutes an actionable nuisance, rather than considering whether the use giving rise to the nuisance is ‘reasonable’, consideration should be given to what the ‘ordinary and common’ use of the land is which is causing the nuisance, and whether the use giving rise to the interference is a necessary part of that ordinary and common use. This requires a consideration of the surrounding land uses and what kind of uses would be expected (e.g., the sound of a child crying in an apartment would unlikely be an actionable nuisance, as being able to cry in private would be an ordinary and common use of an apartment).

The Court considered that a 360-degree viewing platform was not an ordinary and common use of land and was ‘far beyond anything that could reasonably be regarded as a necessary or natural consequence of the common and ordinary use and occupation’ of the land. This was so, even though the buildings were in central London, and the Court noted that a viewing platform could not be considered a usual part of an art museum.

If a use is found not to be ordinary and common, those exposed to that uncommon use cannot be expected to try and mitigate the harm themselves. Differing from the lower Court judges, the Supreme Court majority considered that the fact that the apartments had a glass wall design had no impact on whether the use of the Tate was uncommon, and therefore it was not the residents’ role to install blinds or shutters as suggested.

The Supreme Court made specific note that the mere fact that one property overlooks another would not be sufficient to create a nuisance claim. For example, apartment buildings having windows that look into each other would not be actionable as nuisance, as an apartment building would be an ordinary and common use of the land in an urban area, and therefore would be expected by those landholders. The fact the apartments were predominantly glass would be relevant in that context.

However, because of how uncommon the viewing platform was, the overlooking was sufficient to establish a nuisance claim, as that use was not something that was expected by the landholders. The sensitivity of the glass apartments became irrelevant in that context.

Mere Overlooking not a Nuisance

The Court noted that ‘overlooking’ being the spatial relationship between two buildings, is generally not actionable, but accepted that visual intrusion can constitute an actionable nuisance.

In this case the claim was not successful because the Tate building overlooked the apartments, or that it was possible to see into the apartments from the viewing platform.

The actionable nuisance arose from the particular use of the top floor of the Tate. That use involved the Tate inviting a vast number of people onto a platform 30m away from the apartments, and encouraging them to look outwards without interruption for a significant part of the day.

Role of Planning Law

The Supreme Court also made specific note that planning law has a separate and additional role in regulating uses of land and does not replace tort law. The Court noted that the planning system is not directed at compensating violation of private rights, but at controlling the development of land in the public interest. There is no obligation on a planning authority to give any particular weight to the impact of a development on amenity of neighbouring land, as the authority will consider a broad range of environmental, social and economic considerations.

Implications

The nature and impacts of the overlooking from the Tate’s viewing platform were clearly unusual and severe. However, there is some precedent in Australia for finding actionable nuisance arising from privacy breaches.

The UK Supreme Court cited with approval the Supreme Court of NSW decision in Raciti v Hughes (1995) 7 BPR 14837, in which an injunction was granted in respect of the installation of floodlights and security cameras that directly recorded activity in a neighbouring property’s backyard. The UK Supreme Court considered constant observation and photography of that type to be not materially different from viewing from the Tate viewing platform.

Although not cited in the UK Supreme Court, the District Court in South Australia also found an actionable nuisance arising from the installation and use of a security camera installed and directed at a neighbouring property (see Shahin v Raedel & Anor [2017] SADC 92).

It is therefore possible that there could be further decisions finding actionable nuisances where there are substantial impacts on privacy (whether from viewing platform or security cameras).

Impacts on amenity, including from overlooking, would be a relevant factor for a consent authority determining a development application, but, as noted by the UK Supreme Court, this would be just one consideration. A consent authority’s role is not to determine whether there would be an actionable impact on a private right of an occupant of land.

However, it remains to be seen whether the Australian courts will accept the reasoning outlined by the UK Supreme Court and adopt the ordinary and common use test, and how that could impact on future nuisance actions for breaches of privacy due to overlooking or security cameras directed at neighbouring land.

If you wish to discuss any aspect of this article, please contact Megan Hawley on 02 8235 9703 or Liam Mulligan on 02 8235 9715.