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21 February 2020

Does being overlooked constitute a private nuisance?

Private nuisance is a substantial interference by the owner or occupier of a property with the use and enjoyment of neighbouring premises. In a recent high profile nuisance case, the Court of Appeal has not allowed the law of private nuisance to develop to include privacy rights.

The claim was made by various owners of apartments next to the Tate Modern who sought injunctions preventing members of the public visiting the Tate and ‘looking into’ their apartments from the viewing platform. Over 600,000 visitors a year were able to use the viewing platform and see the neighbouring apartments and were free to film as they wished.

In addition to the privacy rights claim it was also claimed that it infringed their right to respect for their private and family lives under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 8).

The High Court held that infringement of privacy was capable ‘in principle’ of being a legal nuisance claim but on balance it was found that in this case the claimant’s exposure was ‘self -induced’ and the neighbours were able to prevent an invasion of privacy and protect themselves by adapting their apartments (for example by adding net curtains). Relying on this and other factors such as the character of the locality, the conclusion was that the viewing platform was not unreasonable.

The neighbours appealed the decision and the Court of Appeal agreed with the lower court that the overlooking of the apartments from the platform could not constitute a nuisance. The Court of Appeal’s reasoning included the need not to restrict development and the availability of planning law remedies. The underlying concern was that if such overlooking was able to give rise to an action in private nuisance, the floodgates would open and some planning policies would be redundant. The Court of Appeal also said that there is not always a remedy for every interference and statute is better placed to intervene on loss of privacy.

As regards the necessity to extend the law of nuisance in relation to Article 8, it was held that there had never been a Strasbourg case in which overlooking by a neighbour breached Article 8 and there was no reason to extend that principle.

If you are concerned about an adjoining development causing a loss of privacy you may need to rely on planning laws to protect your privacy. Given the lack of permission to appeal, this looks to be the final say on this matter for the time being.

Fearn and others v Board of Trustees of the Tate Gallery [2020] EWCA Civ 104

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