UK: Privacy From Overlooking – Enviable Views Come At A Price

Last Updated: 26 March 2019
Article by Bryan Johnston, Oliver Saunders and Daniel Lowen

The High Court has recently denied relief to residents of a glass-walled apartment block from the intrusion into privacy caused by a neighbouring viewing platform.

Despite the residents' claim being rejected, the ruling confirms that a nuisance claim based on intrusion into privacy can be made, albeit in limited circumstances. This is likely to be welcome reassurance to developers that already have to contend with the complexities – and costs – of rights of light infringement when seeking to develop properties in central locations, without the added threat of privacy litigation.

Background

The Tate Gallery opened its panoramic viewing platform in 2016, giving visitors views across the Thames and South Bank area. A handful of residents of the neighbouring NEO Bankside development quickly found that the viewing platform – just 34 metres away at its closest point – facilitated the curiosity (if one can call it that) of members of the public about their flats. The flats' glass-walled "indoor balconies" comprising open living space were directly in view from the platform.

The number of visitors using the platform (up to 300 at any one time) was said to have created an "oppressive" environment of surveillance, with some of those visitors even posting on social media photographs of the residents' living spaces.

Mr Justice Mann's judgment – which has some sympathy for the residents – found that factually speaking there was a "material" loss of privacy. The issue, however, was whether the residents had any legal remedy for that intrusion.

The residents' claim

The residents put forward two alternative arguments: either (a) their human right to private home life had been infringed, or (b) the intrusion into their privacy had caused an actionable nuisance.

The first argument fell at the first hurdle because a pre-condition of any human rights action is that the defendant must be a public authority or a "quasi-public authority" – neither of which the Tate was found to be.

The second argument received rather more attention because it raised a novel point of law: can intrusion into privacy amount to an actionable nuisance? To date, no case law has specifically recognised this.

A new form of nuisance: privacy from overlooking

As any property litigator will confirm, the boundaries of the law of nuisance are not fixed and new forms of actionable nuisance can be recognised over time.

A nuisance can arise in a variety of circumstances, but broadly the alleged defendant must have used their land unreasonably (even if entirely lawfully), subjecting the neighbouring land to some form of injury or interference with its use. By putting up the viewing platform – so the residents argued – the Tate had afforded a view into their flats which the visitors would take advantage of. As a result, their use and enjoyment of their flats had been affected.

Various cases involving overlooking windows (and other circumstances) alleged to have breached a landowner's privacy had been cited, albeit those cases did not go so far as to recognise a nuisance based on privacy as a stand-alone right. However, on the basis of that case law, coupled with the recognition that there is a human right to private home life (Article 8), Mr Justice Mann concluded that a nuisance claim based on privacy from overlooking can be made.

Despite the conclusion that it is a form of actionable nuisance, the residents nevertheless did not succeed and this came down to several factors, chief among which was the fact that the residents had effectively subjected themselves to the intrusion into privacy by purchasing flats with glass walls. The judge noted that those same glass walls afforded the residents themselves enviable views of the surrounding locale and that they could not have that without being vulnerable to the inward gaze from outside.

There was also held to be nothing unreasonable about the way the Tate Gallery had used its land (i.e. by putting up a viewing platform for its visitors) – it was a far cry from the nuisance cases that can involve spillage of noxious substances and deafening construction noises. Moreover, the Tate was found to have taken reasonable steps to ameliorate the privacy intrusion, such as reducing the number of days the platform was open to the public.

When could a nuisance claim based on privacy succeed?

It is interesting to note Mr Justice Mann's comments that in "the right circumstances" a nuisance claim based on privacy from overlooking could be made. He used an "extreme case" as an example, whereby a neighbour had constructed a viewing tower with the sole purpose of enabling views into the gardens and houses of other neighbours and the neighbour then charged members of the public to use it. In that situation, it would clearly be an unreasonable use of that land affecting the other neighbours' enjoyment of their land.

Little guidance was given on when a nuisance claim of this nature could be successful. However, given the Court's acknowledgement that this case presented a significant intrusion (and bearing in mind the sheer number of people that could potentially intrude), the only possible distinguishing factors between this case and the "extreme example" would appear to be (a) intent and (b) the intruded party's ability to defend against the intrusion. In this case, it seems to have been accepted that the Tate's genuine intention was to provide views of London for its visitors, not to provide views of the flats. In addition, the Court found that the flat owners had various remedies available to them (such as blinds or privacy film) to reduce the impact. This is different from the "extreme example", where the intent was specifically to invade privacy, and where the overlooked garden would not have any realistic defence, so those factors may prove significant in considering future cases.

Commentary

Given the striking facts of the dispute (a large viewing platform coupled with glass-walled neighbouring flats), it is hard to imagine a better test case for a nuisance based on privacy from overlooking. The fact that the residents did not succeed, therefore, will send a strong message to other potential claimants in similar situations – e.g. homeowners in proximity to high-rise developments with overlooking views. The judge's comments that in the "right circumstances" a case can be made remain to be fleshed out by subsequent case law, but practitioners will keep in mind the apparently quite high threshold this case sets for such cases.

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