Overlooking is Not a Private Nuisance – Landmark Court of Appeal Ruling

If you are a property occupier and have noise, dust, noxious smells, vibrations or other forms of nuisance inflicted upon you by a neighbour, the law will provide you with a remedy. However, the Court of Appeal has ruled in a landmark case that that principle does not apply to loss of privacy caused by overlooking.

The case concerned a luxury apartment block which was overlooked by the external viewing gallery of a neighbouring museum. Residents of the flats complained that the gallery enabled thousands of museum visitors to look directly through their windows, seriously impinging on their privacy. In some cases, photographs and video footage of flat dwellers going about their daily lives had been posted online for all to see.

The residents launched proceedings against the museum’s trustees, claiming to be victims of a private law nuisance. They sought 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, however, rejected by a judge.

In dismissing their appeal against that outcome, the Court noted that, in the hundreds of years in which the law of private nuisance has come to the aid of those in possession of land who suffer at their neighbours’ hands, there was not a single reported case in which a claim in respect of overlooking had succeeded. The overwhelming weight of judicial authority 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.