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Lawbite: You seem to have overlooked my privacy…

  • United Kingdom
  • Litigation and dispute management
  • Real estate
  • Real estate litigation

19-02-2020

Giles Duncan Fearn (2) Gerald Kraftman (3) Ian McFadyen (4) Helen Claire McFadyen (5) Lindsay Urquhart v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104

The Court of Appeal has dismissed an appeal made by residents of luxury glass-fronted flats in relation to their claim in nuisance for injunctions preventing members of the public from observing their properties from the Tate Gallery viewing platform. 

The Court further decided, disagreeing with the High Court on this point, that overlooking by neighbours is not capable of giving rise to a cause of action in private nuisance. 

The flats in the Neo Bankside Development were directly opposite a new extension to the Tate modern called the Blavatnik Building, opened in 2016.  The design of the flats included floor-to-ceiling clear glass external and internal walls and a “winter garden” originally conceived as an indoor balcony but used by all residence as part of the general living accommodation. 

The platform was designed to afford Tate visitors a panoramic vista over London, but incidentally also, absent a barrier, allowed visitors to see directly into the living accommodations of the residents.

The owners of the flats complained that they were subject to being “more or less constantly watched”, with Tate visitors using binoculars to peer into the flats, taking photographs, waving and occasionally making obscene gestures.

The High Court dismissed the claim finding that whilst the platform allowed visitors to view the interior of the flats, that was not its primary purpose.  In effect, by purchasing flats which incorporated such vast amounts of glass the residents had submitted themselves to a sensitivity to privacy and the exposure created was the “price” that the owners of the flats paid for the views afforded by the glass-frontage to their flats. The Judge found, however, that the tort of nuisance was in principle capable of protecting privacy rights.

The Court of Appeal dismissed the appeal but further held that “overlooking” was not protected by the law of nuisance.  There were no reported cases in which claims in nuisance based on overlooking had been successful, whereas there are plenty of cases where Judges have expressed the view that no such cause of action exists.  Such protection from overlooking does exist, however, in planning law. Further, a cause of action in nuisance for privacy and overlooking would constrain development in towns and cities and it would be difficult to apply an objective test for determining whether there had been material interference.

Key points

  • “Overlooking” is therefore not actionable in nuisance
  • Those purchasing (and potentially those designing and developing) properties (particularly in towns and cities) which have a reduced level of privacy should know that they cannot seek to limit use of neighbouring properties on private nuisance grounds and will need to consider whether other remedies are available to them, such as under the planning system
  • It appears that neither the Tate Gallery developers nor the Neo Bankside development had considered the effect of the viewing platform or foreseen the level of intrusion, suggesting that a better dialogue at an early stage may have been helpful

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