In Fearn v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104, the Court of Appeal has ruled that overlooking property - and arguably invading your neighbour's privacy - does not amount to a private nuisance. Without more, an injunction cannot be granted to prevent the overlooking.

The ruling is significant for developers and neighbours with ambitious plans to build in tightly-packed urban areas (or living next to those with such plans).

Why privacy mattered

This case concerns the widely-publicised battle between residents of the luxury Neo Bankside development ('the Neighbouring Residents') and the neighbouring Tate Modern ('the Tate'). Between 2006 and 2012 the Tate constructed a new extension, the Blavatnik Building, which included a viewing gallery. This viewing gallery offers panoramic views over London and, unfortunately for the Neighbouring Residents, extensive views into several of the flats within Neo Bankside ('the Neighbouring Flats'). The viewing gallery has been particularly popular with visitors to the Tate, with an estimated 500,000-600,000 visitors annually.

The Neighbouring Flats contained a glass-walled living area. Many visitors seem particularly interested in the Neighbouring Flats, using binoculars to view the flats and taking photographs of the interiors that were later shared on social media platforms such as Instagram. In order to tackle this issue, the Tate put up notices requesting visitors respect the privacy of the Tate's neighbours, and security guards were installed to stop photography.

Unfortunately these measures were not seen as sufficient, and 4 Neighbouring Residents sought an injunction against the Tate, arguing that the viewing gallery unreasonably interfered with the enjoyment of the flats as to be a nuisance. They sought an injunction requiring the Tate to prevent members of the public from observing the Neighbouring Flats from certain parts of the viewing gallery.

The Neighbouring Residents were unsuccessful in the High Court, and the Court of Appeal has now rejected their appeal.

"The law does not always provide a remedy for every annoyance to a neighbour" - Overlooking property is not a nuisance

Whilst the High Court did not need to decide the issue, it indicated that, if it had, it would have found that overlooking a building, leading to an invasion of privacy (at least regarding the home) was capable of forming an action under nuisance. However, the Court of Appeal disagreed there was no legal recourse as sought by the Neighbouring Residents.

Different types of nuisance

The basis of the judgment rested on the fundamental nature of nuisance in law. There are three types of nuisance in law: (1) encroachment onto land, (2) direct physical injury to land, and (3) interference with a person's quiet enjoyment of his land. The Court considered that overlooking property could only conceivably come within this final, third category of nuisance.

Does overlooking interfere with quiet enjoyment of land?

To prove interference with quiet enjoyment of land, a person must show that there has been material interference with the amenity of the land. This must be seen objectively, taking into account the locality. For example, residents in a densely-occupied city cannot expect the same level of quiet as a dwelling in an isolated locality.

However it will be a defence to a nuisance claim if it can be shown that:

  1. The act causing the alleged nuisance is 'necessary' for the common and ordinary use and occupation of the land; and
  2. The act is done in a reasonable way (having regard to the neighbour's interests)

If these two conditions are satisfied, there is no actionable nuisance.

Overlooking the Neighbour Residents' flats so as to invade their privacy did not interfere with quiet enjoyment of their land, the court found. Not only was there authority that overlooking was not actionable (Turner v Spooner (1861) 30 LJ Ch 801, Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479).

Further, there were several reasons why the law of nuisance should not be extended to cover an invasion of privacy as suggested by the Neighbouring Residents. For example, planning laws allowed a local authority to protect people living near developments. Moreover, overlooking fundamentally amounted to an invasion of privacy rather than damage to an interest in land.

Overlooking should however be distinguished from snooping, which was capable of forming a nuisance. An example given was of a neighbour who installed surveillance cameras and lights expressly to record their neighbour's home.

Key points for developers and neighbours

  1. Overlooking does not constitute an actionable nuisance
  2. Raise/consider concerns during the planning process - as 'overlooking' does not amount to a private nuisance, the planning process is likely to be the appropriate forum to raise this issue (although gaining permission is not a defence to nuisance);
  3. Snooping can still be a nuisance - The Court confirmed that overlooking (not a nuisance) was different from snooping (capable of a claim as a nuisance);
  4. If no claim for 'overlooking', is anything else actionable? The same facts may give rise to a claim that is recognised by law. For example, does the development infringe on a right to light? Does the development create excessive noise/light pollution?
  5. For actionable nuisance, apply the right test - If you do identify nuisance, remember the test is not simply a general assessment of reasonableness of both sides. Rather, the test is set out in the case law