In a highly publicised case, the residents of a luxury apartment block in central London, Neo Bankside, brought proceedings against the Tate Modern gallery. The apartment owners argued that the viewing platform introduced by the gallery meant that they were overlooked. They compared their lives since the building of the platform as like ‘living in a goldfish bowl’. At each stage of the case, the Court sided with the Tate. But earlier this month, the Supreme Court published their decision, overturning the lower courts and determining that the Tate viewing platform caused a nuisance to the flat owners.
| Fearn and others v Board of Trustees of the Tate Gallery
Neo Bankside is comprised of luxury apartments with floor to ceiling windows to take advantage of the London riverside views. It was built around 30 metres away from the Tate Modern gallery and opened in around 2012.
In 2016, works were completed on the Tate’s viewing platform. Since then, thousands of members of the public have been out onto the platform to enjoy the uninterrupted views over the London skyline. And, unfortunately, are also able to look directly into some of the Neo Bankside apartments. The residents reported Tate visitors waving to them in their homes, and seeing photos of their apartments on social media.
Unhappy with the new view directly into their homes, some of the Neo Bankside apartment owners brought a claim against the Tate Modern. They claimed that the viewing platform was a nuisance, and asked that the court make an injunction against the gallery, preventing visitors looking into their homes. They also brought a human rights argument that the viewing platform breached their right to privacy. However, the flat owners dropped this argument quite early on.
| What is a nuisance?
A nuisance is where someone does something on their own land, which interferes with their neighbour’s ability to enjoy their own land. This must be a substantial interference and the use of land must be over and above how the Defendant would ordinarily use its land.
Nuisances can include, for example:
- Noise from a neighbouring property;
- Smells from a nearby restaurant or takeaway; or
- Water flooding from a neighbouring plot.
| The lower courts – ‘overlooking’ is not a nuisance
At the High Court, the Judge considered the flat owners’ arguments, and appeared to appreciate the extent of the problems they were suffering. However, he said that in such cases there should be “give and take”. He suggested that they could take preventative measures in their flats by, for example, installing privacy film or net curtains.
The flat owners did not agree and appealed.
Unfortunately for the flat owners, however, the Court of Appeal also sided with the Tate Modern. As we reported back in 2020, the court said that the principal of private nuisance did not extend to overlooking.
| The Supreme Court
However, in the end (some six years after issuing their claim), the flat owners were victorious. The Supreme Court decided (although not all the judges agreed) that it did not matter that the apartments were fully glazed. The judges noted that this was not uncommon in modern buildings. The judges also noted that it wasn’t even really about ‘overlooking’ as such. It was more about the use of the viewing platform by the Tate. Every day, the Tate invited the public to,
“look out from that location in every direction, including at the claimants’ flats… and permits and invites this activity to continue without interruption for the best part of the day every day of the week; and that this has the predictable consequence that a very significant number of the roughly half a million people who visit the Tate’s viewing gallery each year peer into the claimants’ flats and take photographs of them”.
The Supreme Court decided that this was indeed causing the flat owners a nuisance.
The Court acknowledged that the public interest into being able to enjoy the view from the viewing platform had a part to play. They did not order an injunction to prevent the nuisance. Instead, it ordered that the Tate Modern pay compensation to the flat owners who could no longer enjoy their apartments.
| Does this open the floodgates to ‘overlooking’ nuisance claims?
There has been much press about this case and questions raised as to whether more claims about overlooking will be successful as a result. This case was specific on its facts – hundreds of people were invited daily to look out at the views from the platform (including into the flats) – and was successful because of these flats. It of course remains to be seen how the lower courts will apply this case going forwards. But early speculation is that this will not result in a flurry of successful claims arising from, for example, upwards extensions on properties.
Our property disputes team can advise on all types of nuisance, including overlooking. If you have any queries, or think that you are suffering a nuisance as a result of a neighbour, call us on 0800 988 7756 or fill in our contact form and we will be in touch.
