In a dramatic departure from the long understood position, the Supreme Court has determined that overlooking is capable of being a nuisance, but should developers be concerned?

The decision has been made in the widely publicised dispute between the residents of the Neo Bankside development and the nearby Tate Modern in London.

Neo Bankside is a development consisting of luxury flats on the south bank of the River Thames. A key feature of these luxury apartments is the floor to ceiling windows giving the residents impressive views over London.

In or around the same time that Neo Bankside was developed, the Tate Modern constructed an extension to its existing building. As a part of the new structure, a walkway was constructing offering the public a 360-degree panoramic view of London… and a direct view into certain flats at Neo Bankside.

The Claimants, who are residents of Neo Bankside, suddenly found that they had become an unwilling exhibit, with visitors gesturing at them from the walkway and in some incidents taking photographs of them which were being posted on social media.

The residents complained to the Tate and although measures were introduced to prevent this behaviour they continued to be subjected to unwanted intrusion.

The Claimants subsequently brought injunctive proceedings requiring the Tate to close part of the walkway, arguing in the first instance that:

1. The use of the walkway unreasonably interfered with their enjoyment of the flat so as to be a nuisance
2. The use of the walkway infringed their privacy rights conferred by Article 8 of the European Convention for the protection of Human Rights and Fundamental Freedoms

The claim for infringement of privacy rights was quickly dismissed with the Court concluding that the Tate was not exercising “functions of a public nature” within the meaning of the Human Rights Act 1998. However, this still left the issue of the Claimant’s claim in nuisance.

A nuisance is:

1. Use of land which wrongfully interferes with the ordinary use and enjoyment of neighbouring land.
2. The interference must be substantial, judged by the standards of the ordinary person.
3. Even where there is a substantial interference, the Defendant will not be liable if it is doing no more than making a common and ordinary use of its own land.
4. Ordinary use of land is to be judged have regard to the character of the locality.

It has long been understood that “overlooking”, whereby you are able to look into as is the case in this dispute, is not capable of giving rise to an action in private nuisance.

However, following this decision it is now the position that overlooking a building leading to an invasion of privacy is capable of forming an action in nuisance.

The Supreme Court found that “mere overlooking” will not usually give rise to liability in nuisance however, in the facts of this case, Tate’s use of their land was “abnormal” and the public was effectively being invited to look into the Claimants flat and this activity was allowed to continue without interruption for the majority of the time. The constant and uncharacteristic intrusion was capable of giving rise to liability for nuisance and did in this case.

This a significant departure from the usual understood position and could result in more claims in overlooking cases being viable. However, the facts of this case were unusual and we do not expect that the outcome in this instance will readily apply to others. Although we do not expect the floodgates on claims concerning overlooking to open just yet, developers should give some consideration to this decision when building in built up areas.