In the case of Fern v. The Board of Trustees of The TateGallery, 2023 (UKSC 4), it was held that overlooking property can amount to a nuisance that potentially entitles an affected party to an injunction preventing the overlooking.
The case involved a viewing platform created by The TateGallery which overlooked neighbouring high-rise flats.
The court determined in that case that there was an actual nuisance as the visitors to the gallery caused a level of disruption that could be compared to living in a zoo for the occupants of the residential flats. Clearly, the “duration and intensity” of the overlooking caused by the viewing platform was a significant factor in the decision.
The Supreme Court made it clear that whilst overlooking can come within the Law of Nuisance, it will only apply if the use of the land by the overlooker is “abnormal and unexpected” and is a “substantial visual interference”. Therefore, whilst this judgement will be relevant to homeowners who are presented with unexpected and significant overlooking by neighbouring developments, it is unlikely to arise in the normal situation where a recently constructed block of flats overlooks another block of flats in a residential scenario as both parties are using the land for a common and ordinary purpose.
The case may be relevant to say an art gallery, museum or restaurant which creates a viewing space or a sky garden which has the impact of overlooking over residential neighbours.
The Supreme Court have remitted the case back to the High Court to decide whether an injunction or financial remedies will be an appropriate remedy in that case.
In summary, whilst similar circumstances may well exist in mainly urban areas, the legal threshold is still high. It is doubtful whether the case establishes that every residential occupier who finds themselves being overlooked in their homes will be able to bring a claim in nuisance.
Should you require any further information regarding claimsof nuisance, please do not hesitate to contact our Mr Bill Dhariwal, Directorand Solicitor on DDI: 01489 864 117 or Email: bill.dhariwal@lawcomm.co.uk
