03 May 2023

Nuisance – you can overlook it…

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Considerations for unusual developments

The scenario

You're a developer. You recently acquired a derelict building in central London. You've got planning permission to demolish the building and put up a large residential tower as part of an exciting 'build to rent' scheme. The plan is to have a roof terrace on top of the building with wide-ranging views.

Overlooking

A few weeks ago an angry resident from a neighbouring block told you that you can't go ahead with the development because one of the flats in your new building will overlook the bedroom in his flat in a neighbouring tower. He said that there had been a recent case which banned overlooking.

Should you be worried?

Nuisance?

No.

The fact that rooms in one block of flats simply overlook rooms in another is not a legal nuisance.

The case

But the angry neighbour is partly right. There has been a recent high-profile case dealing with the issue of nuisance in this context – Fearn and others v Board of Trustees of Tate Gallery. The case concerned the viewing gallery at the Tate Modern, in central London. Some residents from the Neo Bankside development, a little over 30m away, bought a claim in nuisance against the Tate Modern as they had thousands of visitors each year looking directly into their flats from the viewing platform. The residents won their case.

The good news

So why shouldn't you be concerned about your development?

For a successful claim for non-physical nuisance, there are two core considerations.

Substantial interference

First, the claimant will need to show that there has been substantial interference with the ordinary use of their land.

What amounts to substantial interference will be judged objectively – what would the average person think?

Common and ordinary use

Secondly, you will have a defence if you can show that your use of land is a "common and ordinary" use. What is common and ordinary will be judged by reference to the character of the locality, for example whether it was in a residential or industrial area.

The overlooking flat

So, in our scenario of the overlooking flat, there is no ground for a claim.

Why?

First, there is no "substantial interference" with the use of the neighbours' flat. Second, in any event, the use of a flat in your development for residential purposes is an "ordinary and common" use.

The Supreme Court in Fearn confirmed that "mere overlooking" cannot amount to a nuisance. However, that's not to say that a tenant of the flat couldn't create an issue if it used the flat in an unusual way – for example, by filming the neighbouring building on live stream. If it were to live stream, then, judged objectively, that may amount to an actionable "visual intrusion".

The roof terrace

Ok, so the flat is fine, but should I worry about the roof terrace?

No.

Assuming the terrace is also used in an ordinary way and that it's for the private use of the tenants of the building, this would not create a nuisance in the context of a central London development. If the terrace were opened up to use by the wider public for viewing the London skyline, questions over whether there was an actionable visual intrusion might need to be asked.

The moral

Whilst mere overlooking will not amount to a nuisance, it's important to note that the list of things that may potentially amount to a nuisance is not closed.

If you're buying or developing a property, always think about whether its use might adversely impact on the use and enjoyment of neighbouring land. If it will, consider if your use is a common and ordinary use of your land. We appreciate that making these assessments is often easier said than done and that it's highly fact specific – our expert team would be delighted to help you resolve any doubts.

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