Visual intrusion: can I stop people from looking into my flat?
In an ongoing battle between the Tate Modern and the owners of neighbouring luxury apartments, the Supreme Court has found in favour of the residential owners, ruling that visual intrusion can potentially amount to a private nuisance, albeit only in exceptional cases. A private nuisance is a substantial interference by the owner or occupier of property with the use and enjoyment of neighbouring premises. You can read the full details of the Fearn v The Board of Trustees of the Tate Gallery  UKSC 4 case here.
The residential owners sought injunctions preventing members of the public visiting the Tate and looking directly into their flats from the Tate’s viewing platform, arguing that this amounted to a nuisance. Approximately 600,000 people visit the Tate viewing platform every year. Several of the visitors took photographs of the interiors of the apartments and posted them on social media; some even peered into the flats with binoculars and waved at residents.
The Supreme Court explained that mere overlooking arising from neighbours using their property in a common and ordinary way would not amount to a nuisance. By way of example, the fact that staff offices in the Tate overlooked the apartments such that the staff members could see into the apartments and vice versa did not amount to a nuisance, as the staff and residents were using their property in a common and ordinary way.
However, the Court rejected the Tate’s argument that the viewing platform was a common and ordinary use of their land, given the panoramic views of London that can be seen from its location. Instead, the Court held that the viewing gallery was an exceptional use of the land and was not a common and ordinary use of the Tate Modern based on its locality, being a contemporary art gallery situated in South London.
In a 3-2 majority decision, the Supreme Court held that visual intrusion could amount to a private nuisance if the intrusion resulted from a use of land that was not a ‘common and ordinary use’. The Court also found that the acts of the members of the public permitted to use the viewing platform amounted to a ‘constant visual intrusion’ which caused a substantial interference with the residential owners’ rights to enjoy their property.
The Supreme Court therefore held that the visual intrusion suffered by the residential owners went beyond mere overlooking and did amount to nuisance.
Also, the Court rejected the Tate’s other arguments, ruling that it was no defence to the claim in nuisance that:
(i) the residential owners occupied flats that were built with glass walls floor to ceiling that made them more vulnerable to visual intrusion;
(ii) the residential owners could take ‘self-help’ steps to reduce the impact of the intrusion, for example, by using blinds or curtains; and
(iii) the viewing platform provided a public benefit by providing spectacular panoramic views of London free of charge.
The Court held these points are not relevant to whether a party is liable in nuisance, but they may be relevant to the remedy ordered to address the nuisance.
The Court dismissed concerns that if the law on private nuisance was extended to include visual intrusion, this would open up the floodgates to such claims. The categories of private nuisance were not closed, and the courts were quite capable of applying the current law to ensure that only claims that met the threshold of ‘substantial interference’ would be held to amount to a nuisance.
The Supreme Court therefore found that the Tate was liable to the residential owners in private nuisance. The case will now be sent back to the High Court to determine the appropriate remedy. However, the war is not necessarily over. The residential owners have sought an injunction to stop the nuisance, which is a discretionary remedy; they have not claimed any damages as compensation for the nuisance. If the parties cannot agree the appropriate remedy, the High Court will need to decide whether to grant an injunction and on what terms. The points about living in glass boxes, self-help remedial steps and the public benefits of the viewing platform may well feed into the court’s decision on the remedy. It therefore remains to be seen whether the residential owners will be entitled to compensation if the court does not grant them an injunction in the terms they seek.
This decision does provide clarity that landowners using their land in a ‘common and ordinary way’ in their locality are free to use and develop their properties without risk of causing a nuisance through overlooking. However, as Lord Sales pointed out in his dissenting judgment, this may come at the price of stifling new and innovative uses of land, as landowners may be deterred from changing their use of the land for fear of neighbours alleging nuisance, even in the heart of a progressive metropolis.