The Court of
Appeal has ruled that overlooking does not fall within the tort of
nuisance.
The Court’s
ruling is the culmination of a long running dispute between the owners of flats
adjacent to the Tate Modern extension, on the south bank of the River Thames in
central London, and the trustees of the gallery.
The modern
flats include “winter gardens”, a type of indoor balcony with floor to ceiling
windows looking out over London.
The flats
were constructed between 2006 and 2012, around the same time the Blavatnik
Building was built, which is the name given to the Tate’s extension, and which
has a viewing gallery on its top floor running along all four sides giving a
360-degree panoramic view of London.
The viewing
gallery attracts hundreds of thousands of visitors a year, with a maximum of
300 visitors at any one time. From the south side, visitors can see directly
into the “winter gardens”, through to the central living accommodation of the
flats. Visitors frequently look into the flats, sometimes with binoculars, and occasionally
take photos which are posted to social media.
The flat
owners claimed that by allowing visitors to look into their flats, the Tate had
committed the tort of nuisance, and sought an injunction against the Tate to
close part of the viewing gallery.
Private
nuisance is a common law tort, which is defined as an unlawful interference
with a landowner’s use or enjoyment of their land.
The High
Court dismissed the flat owners’ claim in November 2019, so they appealed to
the Court of Appeal.
The Court of
Appeal has unanimously dismissed that appeal on the basis that overlooking does
not fall within the tort of nuisance.
Over the
hundreds of years that the tort of nuisance has existed and been developed by
the courts, there has never been a reported case in England and Wales in which
a court has found that overlooking by a neighbour constituted nuisance. On the
contrary, the courts have found that, subject to planning permission being
granted, a landowner may create windows which overlook a neighbour’s property.
The general
principle in common law is that anyone may build whatever they like on their
land. It is planning law that controls what can be built as a matter of public
policy. There is also the common law relating to rights of light and air, which
may in certain situations inhibit a landowner’s ability to build, but rights of
light were not an issue in this case.
So for
example if someone is granted planning permission to build flats which include
balconies overlooking the neighbouring garden, this might result in a complete
lack of privacy in summer months, and may even diminish the market value of the
overlooked property, but there would be no cause of action in nuisance.
The Master
of the Rolls, Terence Etherton, stated in this case that ruling against the
Tate could open the floodgates to complaints in cases where planning permission
is granted to include a balcony or other structure overlooking another’s
property.
As a matter
of policy, the Court of Appeal’s decision holds that planning laws and
regulations are a better medium for controlling inappropriate overlooking than
the uncertainty and lack of sophistication of an extension of the common law cause
of action for nuisance.
Paying a
premium for a property with a view carries other risks too.
There’s no
legal right to a view, so if the planners ever decide to allow someone to build
in a way that blocks it, there’s nothing you can do about it.
The Court of
Appeal also decided there’s no reason to extend the common law tort of private
nuisance to overlooking in light of Article 8 of the European Convention on
Human Rights (respect for private and family life).
Rather than
use this case as an opportunity to extend the law of nuisance, the Court took
the view that if new laws are needed to deal with overlooking, they are best
left to Parliament to decide.
There are
already other laws which protect privacy, but they were not relevant in this
case. Such privacy laws include the law relating to confidentiality; misuse of
private information; data protection (Data Protection Act 2018); harassment and
stalking (Protection Harassment Act 1997). Parliament has created legislation
in this area and is better able than the courts to weigh up the competing
interests of landowners.
The Court of
Appeal has not granted leave to appeal to the Supreme Court.
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