Is it curtains for claims in respect of loss of privacy?

Mark Cummings  13-09-2021

Historically, the courts have protected property rights, including the prevention of acts of private nuisance, but a new decision of the Court of Appeal has probably made it more difficult for individuals to protect their right to privacy.

Private nuisance is a civil wrong and a tort, which gives the person who has been wronged the right to bring a claim for compensation. Examples of private nuisance are:

  • encroachment on to land;
  • physical damage to land; or
  • substantial interference with the claimant’s use and enjoyment of their land. 

One of the ways in which "substantial interference" often arises in private nuisance cases, is where new property developments overlook adjacent properties.

In the recent case of Fearn v Board of Trustees of the Tate Gallery, a new rooftop viewing platform was constructed at the Tate Modern art gallery, which overlooked adjacent luxury flats. The owners of those flats issued a court claim with two limbs, firstly, alleging that they had a claim for private nuisance, as the viewing platform constituted a substantial interference with the use and enjoyment of their land, and secondly, a claim under Article 8 of the Human Rights Act which relates to the right to a private and family life.

At trial, the judge found that there was no actionable nuisance and pointed to the fact that the claimant could undertake acts of mitigation to protect their privacy. The claimant was understandably disappointed with this outcome and decided to take the case further to the Court of Appeal.

Unfortunately, the claimant lost again. The Court of Appeal dismissed their appeal on the basis that "mere overlooking" did not amount to a private nuisance and found that the issue ought to be dealt with by government legislation, rather than being the subject of judicial scrutiny.

The Court of Appeal also rejected the applicability of Article 8 in this case.

The Court of Appeal's decision is good news for developers who will be able to construct buildings which overlook adjacent properties, subject to the relevant appropriate planning permissions and approvals being in place.

From the point of view of the owners of properties which might be overlooked by new developments, the decision emphasises the need for them to raise detailed objections at the planning permission stage, in the hope that the planning application will be rejected, or the proposed buildings can be redesigned to protect their privacy.

At Samuels we have a wealth of experience in assisting clients will many different types of property disputes. To speak to a property disputes lawyer today, contact us.

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