Q&A - Does overlooking constitute a nuisance?

Question

I own a flat in a high-rise residential development in South London. I have lived here for five years. In the last year, two new towers have been completed next to my building, blocking my view. They, like my flat, have floor to ceiling glass walls on the outside and so I can look into the living spaces of my neighbours – which are only about 20 metres away – and vice versa. One of the buildings has a communal lounge opposite my living room and is used regularly for parties and events of up to 50 people or more at a time. Particularly in the evenings and on weekends I therefore find that my flat is “on view” to a large number of people. Is there anything I can do legally to restrict this?

Answer

A similar situation was recently considered by the Court of Appeal in Fearn and others v Board of Trustees of the Tate Gallery [2020] EWCA Civ 104; [2020] PLSCS 22 (often referred to as the Tate Modern case). The case concerned a claim in nuisance by long leaseholders of flats against the Tate Modern. The leaseholders’ flats, which have floor to ceiling glass walls, were being overlooked by circa 600,000 visitors to the Tate Modern’s viewing platform each year. The Court of Appeal ruled that in light of the “overwhelming weight of judicial authority” on what can and cannot constitute a nuisance, an invasion into privacy by “mere overlooking is not capable of giving rise to a cause of action in private nuisance”.

At present, there is therefore no legal remedy to prevent your neighbours from looking into your flat, notwithstanding the fact that this may invade your privacy. There is also no general right to a view and so absent any agreement to the contrary, and the infringement of any rights (eg, any rights of light), the developer will have been able to build on its land notwithstanding the obstruction of your view.

Fearn may well be appealed further and, if successful, it may give rise to a cause of action for overlooking in the future.

In the meantime, it may be worth raising any particular concerns with the owner of the opposite tower who may be willing to discuss measures that can be taken to limit your exposure to the users of the lounge at least – eg, in terms of the times during which it can be used, or perhaps the addition of plants, or other privacy enhancing methods.

It would also be sensible to check the planning permissions under which the new towers were built to see if there are any planning conditions relevant to the design or use of the communal facilities.

Explanation

Generally, absent any express restrictions and subject to planning, an owner of land is free to build on their land as they please. This is the case even if this causes an annoyance to neighbours. The only redress in respect of such annoyance is where the annoyance gives rise to an action in nuisance.

Nuisance is a cause of action that concerns the violation of real property rights, which can include a material interference with the amenity value of neighbouring land, assessed objectively.

A nuisance is usually caused by a person doing something on their own land which they are legally entitled to do but which interferes with the use and enjoyment of their neighbour’s land. Common examples include where something escapes from the land onto the neighbour’s land such as water, noise, or pests.

As for overlooking, in Turner v Spooner (1861) 30 LJ Ch 801 the court held that “no doubt the owner of a house would prefer that a neighbour should not have the right of looking into his windows or yard, but … a court of law will [not] interfere on the mere ground of invasion of privacy; and a party has a right even to open new windows, although he is thereby enabled to overlook his neighbour’s premises, and so interfering, perhaps with his comfort”.

The stance taken by the courts over the years in respect of privacy and overlooking is that nothing prevents the injured party from using the right to build on his own land as he sees fit to prevent the overlooking.

This line of authority was affirmed by the court in Fearn. Recognising that “the law does not always provide a remedy for every annoyance to a neighbour, however considerable that annoyance may be”, the Court of Appeal considered that parliament would be much better placed to review the law as regards privacy and overlooking between neighbours through legislation than the court would be through expanding the law of nuisance.

These are important issues and it is likely that Fearn will be appealed further. If an appeal succeeds, this could open up the possibility of overlooking giving rise to a cause of action in nuisance. Even then, however, the particular circumstances of a complaint will be important, eg locality and any restricted hours of operation.

For now, a claim based on overlooking of your property is unlikely to succeed against the neighbouring developer.

There may, however, be other causes of action in respect of the neighbouring development for you to explore: do you enjoy a right of light which may have been infringed by the new development? If the neighbouring developer is also your landlord, do the terms of your lease give rise to a cause of action? We would suggest that you seek legal advice to explore your options in that regard.

This article was written by Associate Megan Davies at Charles Russell Speechlys LLP and Barrister Richard Clarke at Landmark Chambers and appeared on 17 March 2020 in Estates Gazette.