They’ll still be watching you: Court of Appeal agrees that Tate visitors are not a nuisance

United Kingdom

Last year the High Court held that there was no cause of action under the Human Rights Act 1988 (“HRA 1988”) in relation to a claim brought by some owners of luxury flats at Neo Bankside against the Tate Modern for invasion of privacy. (See further reading below for more details of this case.)

The owners appealed to the Court of Appeal, maintaining their claim for an injunction against Tate Modern to protect what they say to be their right of privacy.

Whilst the Court of Appeal disagreed with the High Court Judge’s analysis on various issues, it dismissed the appeal and in affirming the High Court’s decision it held that:-

  1. mere overlooking is not capable of giving rise to a cause of action in private nuisance; and
  2. there is no reason to extend the common law tort of private nuisance to overlooking in light of Article 8

This case was a complex one requiring a difficult balancing exercise between public and private interests. Terence Etherton, the master of the rolls, observed that a ruling against the Tate Modern could open the floodgates to complaints in cases where planning permission is granted to include a balcony or other structure overlooking another’s property.

The Court of Appeal in its decision refused to extend the law of private nuisance and remarked that they prefer to leave this with Parliament to formulate any new laws to deal with overlooking. So for now the floodgates remain shut and the possibility of a raft of overlooking claims are safely shut away. However, and whilst leave to appeal to the Supreme Court was refused, we think there is a possibility that this will go further so watch this space!

Further reading:

Our Law-Now on the High Court decision last year and more details on the background of the case – please note that the Practical Takeaway Points in the previous Law-Now is superseeded by this Court of Appeal decision.