Q&A: Neighbours, Noise And Nuisance

Question

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?

Answer

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.

Explanation

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 [1911] 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 [2019] EWHC 246 (Ch); [2019] 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...