Overlooking Nuisance Claims

The Supreme Court’s Ruling on Overlooking as Private Nuisance

In the case Fearn v Tate (2023) UKSC 4, the UK Supreme Court ruled that overlooking can be a private nuisance if it’s “abnormal and unexpected” and causes “substantial visual interference”:  The Supreme Court found that the Tate was liable for nuisance. Lord Leggatt gave the leading judgment and applying the principles applicable to private nuisance, he found that the Tate’s viewing platform causes a substantial interference with the ordinary use and enjoyment of the Flats comparing the occupant’s position to that of animals on display in a zoo. The Supreme Court however did not address the issue of remedy which was referred back to the High Court.

This case may well open up the floodgates given that it found that visual intrusion can conceptually constitute an actionable nuisance although the Supreme Court did indicate that a building simply overlooking neighbouring land or occupants looking at what is happening on neighbouring land in the “ordinary course” will not give rise to liability in nuisance. The Court considered that the circumstances in this case were extreme and not “mere overlooking”, the Tate having a viewing platform and inviting members of the public to visit and look out in every direction and this is what constituted offensive behaviour.

Lord Leggatt re-emphasised it is not a defence to say that the claimant could take reasonable steps to avoid the consequence of the nuisance for example putting up curtains. It was not reasonable to place the burden on the claimant to mitigate the impact of the special use of the property by Tate.

Implications for future private nuisance claims

The case is useful in that it restates the principles applicable to private nuisance claims:

• A private nuisance is a “tort to land” which is meant that its subject matter is wrongful interference with the claimant’s enjoyment of rights over land. The term nuisance is properly applied to such actionable user of land as interferes with the enjoyment by the claimant’s right in land. The land includes here not only the earth itself but also buildings and other things physically attached to it and rights such as easements which attach in law to land.
• There is no conceptual pr a priori limit to what can constitute a nuisance. Anything short or direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land is capable of being a nuisance. This interference may be caused by something tangible such as Japanese knotweed or something intangible such as fumes
• The interference must be unreasonable which means that to give rise to liability an activity must unduly interfere with a person’s use and enjoyment of land.
• The interference must be substantial, and the courts will not entertain claims for minor annoyances.
• Priority would be accorded to the general and ordinary use of land over more particular and uncommon uses.
• It is no defence to a claim in nuisance that the defendant is using the land reasonably
• The principle of reciprocity explains the priority given by the law of nuisance to the common ordinary use of land over special and unusual uses. A person who puts his land to a special use cannot justify substantial interference which this causes with the ordinary use of neighbouring land by saying he is asking no more consideration or forbearance from his neighbour than they (or an average person in their position) can expect from him.
• The right to build (and demolish) structures is fundamental to the common and ordinary use of land, involving as it does the basic freedom to decide whether and how to occupy the space comprising the property. It follows that interference resulting from construction (or demolitions) works will not be actionable provided it is “conveniently done” so that in so far as all reasonable and proper steps are taken to ensure that no undue inconvenience is caused to neighbours.
• “Common and ordinary use of land” is to be judged having regard to the character of the locality.
• It is no defence to a claim for nuisance that the defendant was already using his land in the way now complained of before the claimant acquired or began to occupy the neighbouring land. Nor is it a defence that the defendant’s activity did not amount to a nuisance until the claimant’s land was built on or its use was changed.
• It is not a defence to a claim for nuisance that the activity carried on by the defendant is of public benefit.

It remains to be seen if the unusual facts of this case limit its applicability to other cases or whether these principles are explored further in future cases.

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