My Home Is My Castle (and You Can't Look Inside')

• Law Firm: Gowling WLG
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Construction & Planning, Real Estate
• Author: Mr Martin Thomas, Thomas Kiernan and Emilie Beek
• Published date: 10 February 2023

The Supreme Court has ruled in the widely-publicised case of Fearn v The Board of Trustees of the Tate Gallery [2023] UKSC 4 that overlooking property can indeed amount to a nuisance that potentially entitles the affected party to an injunction preventing the intrusion.

Whilst based on an unusual set of facts, which caused a rare split decision from the Supreme Court, this ruling is something that should be reviewed carefully by all developers when considering their designs for sites adjacent to residential buildings, and by those neighbours likely to be affected by them.

Five key takeaways for developers and neighbours

1. Overlooking (which leads to a substantial interference with the enjoyment of the land) can, in principle, amount to an actionable nuisance.
2. However, this is not the death knell for big-city developments. The Supreme Court's decision concerns an extreme case and a degree of overlooking that is unlikely to arise in many other situations. By contrast, there is unlikely to be a nuisance where a recently constructed block of flats overlooks an adjacent block of flats in a residential area (as both parties are using the land for a common and ordinary purpose).
3. Planning to develop? Ask yourself: "will our development be used for a novel purpose in comparison to our neighbours?" - The majority opinion in the Supreme Court attaches considerable weight to whether the Defendants' use of their land is common and ordinary. If the use is novel and causes a substantial interference, the Supreme Court appear to be saying it is largely irrelevant whether the affected parties' use of their land contributes to the level of that interference.
4. Owners of properties with popular viewing platforms - take note! Virtually every large city in the UK has buildings intentionally designed to attract a large number of visitors to enjoy views of the surrounding area - think art galleries, museums or restaurants with ancillary viewing platforms Whether those are specific viewing galleries or just spaces intended for general use which have views (for example a sky garden), owners of those buildings will now need to consider what impact those viewing platforms have on their neighbours (especially if those neighbouring properties are residential).
5. The door is left open for further argument on appropriate remedies - but also as to the importance of "reasonable use" (as stated in the minority decision) and the importance of possible steps the injured party could take to...