That is the succinct takeaway from a ruling on an increasingly important issue that is essentially about privacy.
Modern housing stock is increasingly packed together with the increased likelihood of being visible to neighbours. Further, with the relaxing of planning law over recent years, homeowners have been extending their properties outwards and upwards rather than spending money on buying a large home. So it’s no surprise that an increasing number of legal claims are arising out of disputes around privacy, nuisance and property.
A recent ruling is particularly noteworthy coming from the Court of Appeal, following a dispute between the residents in a luxury residential development complex (Neo Bankside in London) and the Tate Modern.
The case raises important issues around how the common law cause of action for private nuisance applies to the overlooking of one property from another; and the potential invasion of privacy issues for occupiers of the overlooked property.
Here, the Tate’s new extension with its famous viewing gallery was added during the six-year period to 2012. The luxury flats were constructed in Autumn 2012.
But while visitors – numbering more than half a million each year – to the Tate’s viewing gallery enjoy panoramic views across London, the gallery also gave them a birds’ eye view into some of the residents’ luxury apartments. The urge to do so was enhanced, it seemed, by the glass-walled living areas in the flats and some audacious Tate visitors took the opportunity to use binoculars – and even share their photographs of the flat interiors across social media.
Tate took action in response but the measures, which included erecting notices asking visitors to respect the neighbours’ privacy, as well as attempts to prevent visitors taking photographs, were not enough to appease the affected neighbours. Five long leaseholders at the luxury apartments applied for an injunction, arguing that the Tate’s viewing gallery unreasonably interfered with their enjoyment of the flats as to be a nuisance.
They lost at first instance; and in the Court of Appeal on the one ground on which it granted permission to appeal.
At issue for the court were three key questions:
- Was there a breach of the tenants’ human rights under the Human Right Act 1998?
- Was there a cause of action in private nuisance as a result of the overlooking?
- Did the facts of the case establish a private nuisance?
The High Court agreed that there a lot of intrusion into the flats but rejected the HRA claim on the basis that the Tate was not exercising functions of a public nature, therefore it was not covered by the HRA. But while the court agreed that overlooking could in principle be an actional nuisance – even without an emanation from one piece of land to another – the claim in nuisance was not made out by the neighbours in this case.
But why? Mann J concluded that as inner-city tenants, the residents could expect less privacy than in rural areas; the operation of the viewing gallery was not inherently objectionable; and in buying the flats, the residents had effectively created or submitted themselves to an increased sensitivity to privacy.
Therefore, it would be wrong to allow a self-induced exposure to the outside world to create a liability in nuisance. In any case, they could have taken remedial measures themselves such as putting in blinds.
The Court of Appeal
Interestingly, the appeal judges rejected the claim but on other grounds and disagreed with Mann J’s ruling. First, the HRA issue: Mann J had approached this incorrectly. He should have asked himself whether, if the tort of nuisance did not otherwise extend at common law to overlooking, there was nevertheless an infringement of Article 8. If so, was it appropriate to extend the common law to provide a remedy for the tenants thus avoiding a breach of section 6 HRA on the part of the courts as a public authority.
But this proved academic as Mann J never actual made a finding of an infringement of Article 8 because he effectively found that in all the circumstances the claimants had no reasonable expectation of privacy in the absence of the protective measures which he considered they ought reasonably to have taken?
Crucially, the CA decided there was no cause of action in private nuisance for overlooking.
The judgment was handed down by Sir Terence Etherton MR, Lord Justice Lewison and Lady Justice Rose DBE and practitioners will find useful their thorough examination of the common law and authorities on nuisance. Notably, there is no decided case that mere overlooking could give rise to a cause of action in private nuisance.
They made clear the fundamental rule that a private nuisance is a violation of real property rights. Furthermore, there are clear statements from “the highest authority that the construction or alteration of premises so as to provide the means to overlook neighbouring land, whether or not such overlooking would result in a significant diminution of privacy and be the cause of justified annoyance to the neighbouring owner, is not actionable as a nuisance”.
Not every annoyance was actionable, they said, concluding that the overwhelming weight of judicial authority is that mere overlooking is not capable of giving rise to a cause of action in private nuisance.
Particularly important was its conclusion that the issue in cases of overlooking is invasion of privacy rather than (as is the case with the tort of nuisance) damage to interests in property. On that basis, said the court, other legal means of protection should be considered. Privacy laws already exist with aggrieved parties having resource to, for instance, the confidentiality laws, the laws relating to misuse of private information, the Data Protection Act 2018, and harassment and stalking (Protection Harassment Act 1997).
The outcome of this case is that if your property overlooks a neighbouring property, even if it could be invading their privacy, does not necessarily amount to a private nuisance. This conclusion ruled out the availability of injunctive relief in relation to the overlooking.
“Even in modern times”, the court observed, “the law does not always provide a remedy for every annoyance to a neighbour, however considerable that annoyance may be.”
What does this mean?
Housing developers and many property owners will be pleased with the ruling and the clarity given that overlooking does not itself constitute an actionable nuisance. But if it amounts to spying or snooping, for instance, where a gallery has been included in the plans or added to a building for the obvious purposes of snooping – it would likely amount to a nuisance in common law.
Housing developers can be more confident in pressing ahead with their planning applications.