...real estate disputes solicitor, Hayley Crombleholme, looks at a Court of Appeal decision on private nuisance. This is the eighth in a series of twelve articles in which our real estate disputes team look back over the key decisions of 2020*
A room with a view? Overlooking cannot constitute an actionable nuisance.
In Fearn and others v Board of the Trustees of the Tate Gallery  EWCA Civ 104 the Court of Appeal decided that there was no cause of action that existed in private nuisance for overlooking and that a landowner does not have a automatic ‘right to privacy’ that can be enforced through the common law tort of private nuisance.
The claimants owned flats in a new development directly opposite an extension of the Tate Modern. Each flat comprised a general living space, and a triangular end piece known as a ‘winter garden’. The winter gardens had floor-to-ceiling windows, which the claimants used as part of their living area. The Tate built a viewing gallery around all four sides of the top floor, which gave visitors an uninterrupted view of the living areas of the flats.
The claimants alleged that the viewing gallery unreasonably interfered with their enjoyment of their flats so as to be a nuisance. They also said that the use infringed their rights under Article 8 of the ECHR (right to respect for their private and family lives and their homes) and, as they alleged the Tate was a public authority, it was in breach of section 6 of the Human Rights Act 1998 (unlawful for a public authority to act in a way which is incompatible with a convention right). They sought injunctions preventing members of the public from observing their properties from the viewing platform.
At first instance, Judge Mann concluded that, although there was a great degree of intrusion into the flats, a claim in nuisance was not made out in this case. In choosing to buy the flats, the claimants had submitted themselves to an increased sensitivity to privacy and that they could have taken remedial actions to reduce their complaints, such as installing blinds or curtains. Furthermore, Judge Mann found that the privacy claim under the 1998 Act failed because the Tate was not exercising functions of a public nature.
Decision on appeal
The Court of Appeal dismissed the appeal by the claimants, finding that it would be difficult to apply the objective test in nuisance in determining whether there had been a material interference with the value of the land. They disagreed with Judge Mann and found that there could be no cause of action in private nuisance for ‘overlooking’.
When considering whether to extend the common law, it was relevant to look at other means of protecting individuals, including planning laws and control. In addition, they decided that it was not appropriate to use Article 8 of the ECHR to extend the common law. Rather, it was for Parliament to formulate further laws as they deemed necessary.
Although this decision can give some comfort to developers, it is important to note this decision does not mean that the court has rejected all claims to privacy. As the judgment records, there are still many ways in which a right to privacy can be recognised and parties should consider the possibility of requiring developers to enter into restrictive covenants to prevent overlooking when selling land.
*yes, we know we are enjoying our 12 days of Christmas a bit early, but we just couldn’t wait.