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Property: The Right to be Nosey

Adam Swirsky explains how the law of nuisance cannot be used to protect privacy rights in light of the recent case of Fearn & others v Board of Trustees of the Tate Gallery [2020] EWCA Civ 104.

The Court of Appeal has now enshrined in law the right to peer into a neighbours’ home. When Mr. Justice Mann first considered the rights of owners of flats overlooked by the Tate Modern’s public viewing platform he found against the owners because he thought that they could protect their privacy by installing net curtains or using the blinds that had already been installed. He left open, however, the possibility that the tort of nuisance would probably have been capable … of protecting privacy rights, at least in a domestic home.

Although they upheld the judge’s decision, the Court of Appeal in Fearn & others v Board of Trustees of the Tate Gallery [2020] EWCA Civ 104 did not agree that the law of nuisance could protect privacy rights pointing out that, despite the hundreds of years in which there had been a remedy for causing nuisance to an adjoining owner’s land and the prevalence of overlooking in all cities and towns, there had been no reported case in which a claimant had been successful in a nuisance claim for overlooking by a neighbour. On the contrary, there had been cases in which judges had expressed the view that no such cause of action exists. By analogy, the Court of Appeal was reminded of the absence at common law of a right to light, short of an easement after 20 years’ use which satisfies the relevant conditions. The court also stressed the point made in Hunter v Canary Wharf Ltd [1997] AC 655 that, even in modern times, the law does not always provide a remedy for every annoyance to a neighbour, however considerable that annoyance may be.

In considering whether such a policy could exist they pointed out that it would be difficult to apply an objective test in overlooking cases to determine whether there had been a material interference with the amenity value of the affected land. Second, they said that there were other ways to protect owners from overlooking, in particular planning laws and control. Lastly, they pointed out that the real issue in cases of overlooking was invasion of privacy rather than damage to interests in property and that Parliament was better placed to formulate any necessary changes to the law.

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