You may have read recently about the owners of apartments overlooking the Tate Modern bringing a claim against the gallery. The flat owners argued that the gallery’s viewing platform breached their rights to privacy, and also constituted a nuisance. The Court of Appeal has published its decision and we take a look at what happened. Do neighbours overlooking your property constitute a nuisance?

Background

The Claimants were owners of modern apartments in central London with striking floor to ceiling windows. The apartment building is located close to the Tate Modern gallery, which has a public viewing platform on the 10th floor. The viewing platform overlooks the apartment building. As a result, people on the viewing platform could see into the living areas of the flats. There are sometimes up to 300 people at once on the viewing platform, and there was evidence to suggest that some visitors waved at the residents in their flats and posted photos of the apartment interiors on social media.

The owners of four of the flats brought a claim against the trustees of the gallery for private nuisance. They applied for an injunction requiring the Tate Modern to prevent visitors looking into the flats. This was to be done by cordoning off parts of the platform or erecting screening.

Private nuisance

First things first, what is a private nuisance? This occurs where someone does something lawfully on their own land, but which interferes with a neighbour’s ability to enjoy their own land. This could include, for example, noise from a neighbouring property or water flooding from someone’s garden into a neighbour’s land.

We look at nuisance in more detail in a previous blog .

High Court decision

The court considered the flat owners’ arguments:

Firstly, that the overlooking from the viewing platform was a breach of their rights to privacy under the Human Rights Act and the European Convention on Human Rights. The Judge dismissed this argument on the grounds that the Tate Modern was not exercising “functions of a public nature” as required by the Human Rights Act, and therefore the claim must fail.

Secondly, that the visitors looking in to the flats from the viewing platform was a nuisance and prevented the flat owners from quietly enjoying their properties.

The Judge considered that nuisance could include a claim for breach of privacy in a private home. However, he went on to dismiss the claim for nuisance. The judge stated that the claimants’ main argument was that their everyday life was on view. The judge noted that they could lower their solar blinds or install privacy film or net curtains. The Judge said,

“These properties are impressive, and no doubt there are great advantages to be enjoyed in such extensive glassed views, but that in effect comes at a price in terms of privacy.”

The flat owners appealed.

The Court of Appeal decision

The Court of Appeal also dismissed the flat owners’ claim, although not for the same reasons as the High Court.

It decided that the principal of private nuisance could not extend to overlooking. The Court stated, “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.”  The Court further noted that there “are already other laws which bear on privacy”.

The Court of Appeal refused the flat owners permission to appeal to the Supreme Court.

Conclusion

While this example of overlooking into a neighbouring property is rather extreme, the Court of Appeal has clarified the position. A neighbour will not be liable in private nuisance if he builds something overlooking your property. That being said, if you find yourself in a similar situation, it is worth seeking legal advice as soon as possible. There may be a remedy under the Protection from Harassment Act, or under planning regulations for example.

For a FREE initial discussion about your case, call our property disputes team on 0800 988 7756.