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Overlooked by neighbours? What are your rights?

View profile for Sarah Davies
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We regularly act for those seeking to pursue and defend claims for private nuisance. This generally involves someone doing something on their land which substantially and unreasonably interferes with neighbouring land. In these cases, a claimant can seek damages and/or an injunction to prevent the nuisance.

Since the Common Law position allows a person to pursue a claim for nuisance to safeguard the quiet enjoyment of their land, some property owners assume that being overlooked on your own property should amount to a legally actionable private nuisance.

The Court of Appeal recently considered this issue in the case brought by the buyers of some flats, sited next to London’s Tate Modern art gallery. The Tate Modern had extended a large viewing platform around the same time the flats were bought. The viewing gallery was open to visitors and it offered a panoramic view of London, including an uninterrupted view of the flats.

The Claimants sought an injunction to compel the gallery to close the platform on the basis that it amounted to private nuisance and/or a breach of their right to private and family life under the Human Rights Act 1998.

The High Court concluded that overlooking was not an actionable nuisance. The High Court did however comment that, in appropriate cases, the tort of nuisance can protect privacy rights infringed by a deliberate act of overlooking. On appeal, the Court of Appeal agreed with the High Court’s decision. However, in addressing the comments of the High Court, the Court of Appeal made clear that it is for Parliament to decide whether private nuisance should include the act of overlooking, not the Courts. The Court of Appeal reiterated that “mere overlooking is not capable of giving rise to a cause of action in private nuisance".

The Court of Appeal also addressed the position regarding the relevance of Article 8 of the European Convention on Human Rights (ECHR), which the claimants had argued was relevant on the basis that the Tate Gallery represented a public authority.

Article 8 of the ECHR provides a right to respect for a person’s “private and family life”. Under the HRA 1998 it is unlawful for public authorities to act in a way that is incompatible with the ECHR. The High Court held that the Tate Gallery was not in breach of the HRA 1998 as it was not exercising functions of a public nature. The reasoning adopted by the High Court was however rejected by the Court of Appeal. Notwithstanding these added complexities, the central issue in this case concerned the issue of privacy.

The decision in this case underlines the fact that the “law does not always provide a remedy for every annoyance to a neighbour”. In view of this recent Court of Appeal decision, some are calling upon Parliament to provide further guidance on the issue of overlooking so a balance can be struck between the needs of neighbouring landowners.

When a dispute arises regarding the property we live in, work from or rent out for investment purposes, it’s easy for matters to become complicated and tensions to rise.

For an informal discussion on how to move forward, get in touch with our specialist team on 03333 208 644 or email law@jcpsolicitors.co.uk.

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