Overlooking no nuisance

We reported, in February, 2019, the High Court decision in Fearn and others v The Board of Trustees of the Tate Gallery. Flat owners in a building neighbouring Tate Modern on London’s riverside complained that visitors to the Tate’s viewing platform could look directly into their flats thereby breaching their privacy. Some visitors went so far as to take binoculars in order to obtain a better view. The flat owners sought an injunction requiring the Tate to prevent members of the public from viewing their properties from the viewing platform. They could not believe it when the judge held there were measures they, the owners, could take to protect themselves from ‘an inwards intrusion by others’ for instance by installing net curtains or blinds. They appealed to the Court of Appeal.

Judgement was given in the appeal court by The Master of the Rolls, Sir Terence Etherton, Lord Justice Lewison and Lady Justice Rose DBE on the 12th of this month. They reviewed what constitutes a legal nuisance and said:

… despite the hundreds of years in which there has been a remedy for causing nuisance to an adjoining owner’s land and the prevalence of overlooking in all cities and towns, there has been no reported case in this country in which a claimant has been successful in a nuisance claim for overlooking by a neighbour. There have, however, been cases in which judges have decided and expressed the view that no such cause of action exists.”

Further, they stated:

“... it may be said that what is really the issue in cases of overlooking in general, and the present case in particular, is invasion of privacy rather than (as is the case with the tort of nuisance) damage to interests in property.”

They held there are already other laws which bear on privacy, including the law relating to confidentiality, misuse of private information, data protection, harassment and stalking and is an area in which legislature has intervened. Legislation is better suited than the courts to weigh up competing interests rather than extend the law of nuisance. Off to the Supreme Court? We will see.

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