Private Property? Court Of Appeal Says That Being Overlooked Is Not A Nuisance

The Court of Appeal has handed down judgment in the case of Fearn & Others v The Board of Trustees of the Tate Gallery, concerning a dispute between the Tate Modern gallery and its residential neighbours over the Tate's public viewing platform.

The Court of Appeal, in dismissing the appeal has confirmed that “mere overlooking” is not capable of giving rise to a private nuisance.

Background to the dispute

A legal nuisance is usually caused by someone doing something on their land which interferes with the use of neighbouring land.

Fearn and other residential neighbours of the Tate Modern bought flats on London's South Bank, in what the Court of Appeal described as “a striking modern development“.

At around the same time, the Tate Modern was constructing an extension including a large viewing platform which provided, in the words of the Court of Appeal “a striking view of London to the north, west, and east, with a less interesting view to the south“.

Unfortunately for the residents, visitors to the Tate Modern began to take photographs and “view the claimants and their flats with binoculars“. This resulted in Fearn and the other residents seeking an injunction against the Tate Modern to prevent this overlooking, which they considered amounted to a legally actionable nuisance.

Decision

At first instance in the High Court (see our previous blog), the judge concluded that there was no actionable nuisance.

The residents promptly appealed. Unfortunately for the residents, the Court of Appeal agreed with the High Court and dismissed the appeal. However, the Court of Appeal disagreed with the High Court's reasoning:

The Court of Appeal, having undertaken a detailed review of the relevant case law, concluded thatthe overwhelming weight of judicial authority... is that mere overlooking is not...