Have the curtains been pulled on overlooking?

Darren Millis, Head of the Commercial Property team at Geoffrey Leaver, looks at the recent case of Fearn v The Board of Trustees of the Tate Gallery in the Court of Appeal

The recent court case between the Tate Gallery and the owners of apartments adjacent to the Tate Gallery has been extremely newsworthy.  The Tate Gallery has a well-used viewing platform affording pleasing views of the River Thames and Central London but, unfortunately, includes views into the apartments of individuals in the residential development opposite.  These apartments benefit from panoramic windows which also allow noteworthy views of Central London but, and this is the issue, do allows members of the public on the viewing platform at the Tate Gallery next door visual access into the apartments.  This has had, according to the apartment owners, a detrimental impact on the quality of their lives.

The owners of the apartments brought a claim for an injunction against the Tate Gallery requiring the Gallery to close the viewing platform under two headings : common law private nuisance and under the Human Rights Act 1988 (the right to privacy).  The High Court had found against the apartment owners.

The Court of Appeal agreed with the High Court and dismissed the claim, and found that overlooking does not fall within the scope of common law nuisance.  The Court of Appeal were uncomfortable with the concept of extending the boundaries of common law nuisance to encompass overlooking and felt it was more appropriate for Parliament to deal with this issue if it were minded to do so.  The Court of Appeal refused to utilise the Human Rights Act for much the same reason.

What does this mean for residents?

This case reminds us that it is important when buying any real estate to look at the use now, but also potential use of any neighbouring buildings in the future.  The court will not automatically ride to the rescue of anyone being “overlooked” by occupiers of a neighbouring building.

If you have any questions or need help from one of our property lawyers contact dmillis@geoffreyleaver.com or call 01908 692769.

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Darren Millis | Partner