Will the Supreme Court’s ruling on ‘visual nuisance’ have a knock-on effect on office developments?

February 6, 2023

Will the Supreme Court’s ruling on ‘visual nuisance’ have a knock-on effect on office developments?

Net curtains. Not a topic you would necessarily expect the Supreme Court to be ruling on; but then that’s the beauty of the law – it is always full of surprises.

I’m referring, of course, to the big legal case of last week – Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4. The Supreme Court had to rule in a case that saw the owners of luxury glass-fronted apartments pitted against the Tate Modern, which had installed a ‘viewing gallery’ that had the unfortunate effect of enabling members of the public to gawp right into the flats.

Giving the majority judgment, Lord Leggatt outlined the progress of the case so far. He said trial judge Mann J had found that ‘a very significant number’ of visitors to the Tate’s viewing gallery were rather interested in the interiors of the claimants’ flats:

‘Some look, some peer, some photograph, some wave. Occasionally binoculars are used. Many photographs showing the interiors of the flats have been posted on social media.’

The trial judge found this to be a ‘material intrusion’ into the privacy of the owners; but he held that this could not amount to a ‘nuisance’.

Lord Leggatt continued: ‘The judge’s reasoning… was in essence that the Tate’s use of the top floor of the Blavatnik Building as a public viewing gallery is reasonable and that the claimants are responsible for their own misfortune: first, because they have bought properties with glass walls and, second, because they could take remedial measures to protect their own privacy such as lowering their blinds during the day or installing net curtains.’

The net curtain logic was rejected in the Court of Appeal, which held that the trial judge’s reasoning involved material errors of law. But it still dismissed the appeal. Why? It did so on the ground that ‘overlooking’ – no matter how oppressive – cannot count in law as a nuisance. In what Lord Leggatt described as ‘cold comfort’ to the claimants, the Court of Appeal judges explained that ‘even in modern times, the law does not always provide a remedy for every annoyance to a neighbour, however considerable that annoyance may be’.

So what did the Supreme Court make of all this? By a majority of three to two, it found in favour of the claimants. It held that the Court of Appeal was wrong to say that the law of nuisance does not cover a case of this kind. This was, in fact, a ‘straightforward case of nuisance’.

Lord Leggatt said: ‘To argue that this use of the defendant’s land cannot be a nuisance because “overlooking” (in the Court of Appeal’s sense) cannot be a nuisance is like arguing that, because ordinary household noise caused by neighbours does not constitute a nuisance, inviting a brass band to practise all day every day in my back garden cannot be an actionable nuisance.’

He added: ‘I suspect that what lies behind the rejection of the claim by the courts below is a reluctance to decide that the private rights of a few wealthy property owners should prevent the general public from enjoying an unrestricted view of London and a major national museum from providing public access to such a view.

‘To the extent that this is a relevant consideration, however, its relevance is to the question of remedy and whether or not it is appropriate to prohibit the defendant’s activity by granting an injunction: it cannot justify permitting the defendant to infringe the claimants’ rights without compensation.’

So the Supreme Court found in favour of the claimants – and then referred the case back down to the High Court to determine the appropriate remedy.

The ruling immediately prompted speculation among experts about whether this would now open the ‘floodgates’ to nuisance claims involving homes being overlooked. Are we about to see a ‘balcony ban’ in developments, or an end to rooftop gardens on office blocks?

In his ruling, Leggatt noted that there were very few reported cases involving ‘visual intrusion’; but that the potential for such claims has been ‘markedly increased’ by technology developments – especially now that everyone has a camera on their smartphone, and cctv has become commonplace. ‘Being photographed or filmed from neighbouring property is a far greater interference with the ordinary use and enjoyment of land than simply being observed with the naked eye’, he rightly observed.

But at the same time, the Supreme Court’s majority ruling has tried to keep a lid on such cases. It makes it clear that claims for visual nuisance will only succeed where the defendant’s activity goes beyond what is simply a ‘common and ordinary’ use of their land. In this case, by constructing the viewing gallery, the Tate was not using its land ‘in a common and ordinary way, but in an exceptional manner’.

What the wider impact of this ruling will actually be remains to be seen. But if an excessive degree of caution by developers now sees them reaching for the rubber and erasing roof-top green spaces from their plans for high-rise office buildings, that would certainly be a shame.

February 6, 2023