As I read through the Supreme Court Judgement of Fearn and others v Board of Trustees of the Tate Gallery I became increasingly exasperated that the issue of privacy and overlooking was yet another issue which frustrated developers and local planning authorities up and down the country were going to have to grapple with as part of the increasing overload of issues to be assessed and considered when granting planning permission.
In this case, the claimants were seeking an injunction to require the Board of Trustees of the Tate Gallery to prevent members of the public from viewing their flats from the public viewing gallery, or an award of damages. The claim was a private nuisance case rather than planning based. However the principle of privacy and overlooking is something which is frequently raised by those opposing new development and I was concerned that this case would begin to give some credence to objections being made on that basis, particularly as the earlier judgment of the Court of Appeal suggested that “inappropriate overlooking” might be better left to the planning regime to control.
Thankfully paragraphs 109 and 110 of the judgment has alleviated my initial concerns and reaffirmed the approach to be taken by local planning authorities when faced with objections based on what are private based concerns, it confirms:
“Unlike the common law of nuisance, the planning system does not have as its object preventing or compensating violations of private rights in the use of land. Its purpose is to control the development of land in the public interest. The objectives which a planning authority may take into account in formulating policy and deciding whether to grant permission for a building on land or for a material change of use are open ended and include a broad range of environmental, social and economic considerations. While a planning authority is likely to consider the potential effect of a new building or use of land on the amenity value of neighbouring properties, there is no obligation to give this factor any particular weight in the assessment.”
For good measure, and to cement that point, Lord Neuberger’s observation in Lawrence v Fen Tigers Ltd [2014] was also quoted, namely:
“when granting planning permission for a change of use, a planning authority would be entitled to assume that a neighbour whose private rights might be infringed by that use could enforce those rights in a nuisance action; it could not be expected to take on itself the role of deciding a neighbour’s common law rights.”
So, in just two paragraphs, the Supreme Court has forcefully (and sensibly) confirmed the status quo. There are however some points to take away from the judgment. Whilst this case did concern a very particular set of circumstances as to the level of invasion of privacy the Claimants were subjected to (i.e. I suspect “overlooking” alone is unlikely to be sufficient to base a private nuisance claim on) it does stress how fundamental good design in new development is to avoid future private nuisance claims.
Placemaking, understanding and respecting the integrity of neighbourhoods should be a building block to good design. A further thought is that there is no useful “planning tool” to avoid or minimise future private nuisance claims; unlike property rights, it is not a right which can be lawfully interfered with or compulsorily acquired by relying on a local planning authority’s statutory powers.
Whilst the judgment is an incredibly welcome confirmation that the planning system is not there to police private rights, it is a reminder that design of development is at the heart to preventing these issues arising in the first place.
