Overlooking is Not a Private Nuisance, Court of Appeal Rules

Loss of privacy as a result of overlooking by neighbours does not qualify as a form of nuisance, the Court of Appeal has ruled in a landmark judgment.

The ruling confirms that, while noise, dust, noxious smells and vibrations inflicted by neighbours are among the types of nuisance offering legal protections to aggrieved parties, overlooking is not.

This means neighbours cannot seek legal remedy if their property becomes overlooked with resulting loss of privacy caused by neighbours.

Landmark case

In the case of Fearn & Ors v The Board of Trustees of the Tate Gallery, residents of a luxury apartment block complained about being overlooked by the external viewing gallery of a neighbouring museum.

The residents launched proceedings against the museum’s trustees, claiming to be victims of a private law nuisance and seeking an injunction requiring the trustees to prevent members of the public from observing the flats from certain parts of the viewing gallery. Their application was rejected.

In dismissing their appeal against that outcome, the Court of Appeal noted there was no reported case in English legal history where a claim for loss of privacy due to overlooking had succeeded. Such judicial authority meant that was that mere overlooking is not capable of founding a private nuisance claim.

The Court acknowledged that being overlooked by thousands of strangers might be viewed as an interference with the amenity value of the flat dwellers’ land. However, the installation of a window or balcony overlooking an adjoining domestic garden was capable of being just as objectively annoying.

Given that breadth of circumstances and scale, it was difficult to envisage any clear legal guidance as to where the line should be drawn between what is legal and what is not.

Opposition to planning applications based on overlooking is commonplace and any extension of the law of private nuisance so as to provide a remedy for overlooking raised the prospect of a multiplicity of such claims being pursued when planning objections have been rejected.

Even in the light of Article 8 of the European Convention on Human Rights, which enshrines the right to respect for private and family life, there was no sound reason to extend the law of private nuisance to embrace overlooking. Rather than the Court taking it upon itself to grant such an extension, it was preferable to leave it to Parliament to formulate any further laws that may be perceived as necessary to deal with overlooking.

 

Overlooking is Not a Private Nuisance, Court of Appeal Rules 2
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