Q&A: Neighbours, noise and nuisance
My client has a long lease of a flat in a tower block in a city and a bar has opened in a neighbouring tower block. As well as a view of the cityscape, the bar provides an intrusive view into her flat. She has seen patrons attempting to look into her flat and, on regular occasions, taking photographs. Could my client raise a successful nuisance claim?
Although there is no general legal right to privacy, the High Court recently decided that the tort of nuisance is in principle capable of protecting privacy rights of a home owner against another landowner (including cases of deliberate overlooking) in an appropriate case. However, it is at present difficult to envisage the type of circumstances that would be required in order for a successful nuisance claim to be made out on the basis of an infringement of privacy.
It is a commonly held view that there is no general legal right to privacy. In the more serious cases, claims concerning privacy would typically be brought pursuant to the Protection from Harassment Act 1997, which is seen by some as being inadequate for the purposes of protecting one’s privacy. Browne v Flower  1 Ch 219 decided that the right not to be overlooked is not a facet of ownership of property.
Fearn and others v Trustees of the Tate Gallery  EWHC 246 (Ch);  PLSCS 34 determined that the law of nuisance is capable, in principle, of protecting privacy rights, but such a claim would only arise in an appropriate case.
Whether anything is an invasion of privacy depends on whether, and to what extent, there is a legitimate expectation of privacy and whether the enjoyment of your client’s land has been substantially or unreasonably interfered with by the actions of a (neighbouring) landowner. The question of whether there has been a substantial or unreasonable interference is heavily fact-specific and the court will undertake a balancing exercise and carry out an inquiry into all the circumstances, including: levels of intrusion; the nature and use of the respective buildings; the locality; whether, and to what extent, there was a legitimate expectation of privacy; and whether there is any degree of malice.
In this case, the following factors weigh against a nuisance claim: the bar is in an urban area; the occupier of a flat in a tower block in an urban area can expect less privacy than a rural occupier might; although the customers of the bar can see into the flat, the use of the property as a bar cannot be said to be inherently objectionable and your client can take remedial measures, such as the use of net curtains.
Even though Fearn has confirmed that the law on nuisance is capable of extending to privacy cases, it is not clear how this might be applied in the future and it seems that such cases are likely to be few and far between. One example might be if the offending property was being used specifically for the purposes of infringing privacy rights (ie setting up a viewing platform for the purpose of looking into your client’s flat and charging an entry fee). That could be said to be inherently objectionable and might well be said to be an unreasonable use of the land which interferes with your client’s rights.
I own a house which was constructed in the latter part of the 20th century with lightweight and poor standards of construction. It has thin walls and no double glazing. There is a nightclub next door which is playing loud music until the early hours of the morning. Do I have a potential claim in nuisance?
It is long established that noise is capable of giving rise to a claim in nuisance, although there is no absolute standard. Whether the interference is sufficiently serious to constitute a nuisance is a question of degree to be decided by reference to all the circumstances. In light of the reasoning in Fearn, it is possible that the courts will begin to consider whether you have created your own “sensitivity” to the noise.
The test adopted by the courts is the concept of reasonableness – has the defendant unreasonably interfered with the claimant’s use of his land? This was asked in the noise nuisance case of Southwark London Borough Council v Mills  3 EGLR 35, where Lord Hoffmann said: “Nuisance involves doing something on adjoining or nearby land which constitutes an unreasonable interference with the utility of the plaintiff’s land.”
The court will have regard to the locality – for instance, is the use of your neighbouring property out of character to the local area? If so, you might have a prima facie case for a successful nuisance action. However, this is only one of many circumstances the court will consider.
Following the reasoning in Fearn, it might be said that part of the “circumstances” is the question of whether the methods of construction render the house particularly sensitive to noise transmission. If that is the case, the argument would be that, as the house is particularly susceptible, then, as a matter of principle, this would preclude the owner from complaining about interferences which could have been minimised if the characteristics of the house were different.
It would require the court, when assessing the question of whether the nightclub is committing a nuisance, to disregard any interference that could have been avoided had the soundproofing been more effective. In other words, have you created your “own sensitivity” by acquiring a house with poor soundproofing and without double glazing? Should the courts begin to think in this counter-factual manner, it would represent an extension of existing principles and a change of approach.
This article was first published in The Estates Gazette.
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Focus Antitrust - 18 September 2019
The latest edition of our regular Focus Antitrust update.