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Legal 500, 2022

Tort of Nuisance Protects Privacy at Home

There has been wide reporting of the Supreme Court’s finding that the viewing balcony at the Tate caused an actionable nuisance to residents of the flats opposite, who found hordes of visitors and tourists gazing into, and photographing, their home lives on a daily basis.

Although the focus of the majority judgment, and the dissenting opinion, is the correct legal test to apply to a nuisance claim, both make interesting statements that touch on the protection of privacy at home. (All Justices having agreed that a separate consideration of Article 8 of the ECHR, a right to respect for your private and family life, was not necessary to dispose of the present claim).

Lord Leggat, giving the majority judgment, opined that the intrusion complained of was “a straightforward case of nuisance”. Stressing residents rights to make use of their property without interference, balanced against the right of neighbours to build as they please, Lord Leggat found the Claimant’s situation was oppressive, and akin to being in “a Zoo”:

“The claimants cannot be obliged to live behind net curtains or with their blinds drawn all day every day to protect themselves from the consequences of intrusion caused by the abnormal use which the Tate makes of its land.”

He went on to make the following notable statements on the interference observation and photography of a private home could cause under nuisance:

“It is hardly surprising that the judge concluded that this level of visual intrusion would reasonably be regarded by a homeowner as a material intrusion into the privacy of their living accommodation.”

“On his findings it is beyond doubt that the viewing and photography which take place from the Tate’s building cause a substantial interference with the ordinary use and enjoyment of the claimants’ properties.”

Going on to reflect on the ubiquity of powerful cameras in smartphones, he observed that this raised further interference because:

“Being photographed or filmed from neighbouring property is a far greater interference with the ordinary use and enjoyment of land than simply being observed with the naked eye.”

Lord Leggat, drawing on nuisance case law from as far back as a 1341 concerning a Fishmonger peering over the wall of his neighbour from a ‘watch tower’, found ample support for this interpretation. He found that the ‘visual intrusion’ was a substantial interference with the Claimants’ right to use and enjoy their land. He also rejected any approach that sought to find for the Tate because of a perceived “reluctance” to be seen to prioritise “the private rights of a few wealthy property Owners” over the public access provided by the Tate.

While the facts of the case are fairly unique, the principles underlying the judgment, of privacy being a core aspect of the use and enjoyment of your own land, lend support to prevent unwanted intrusions into the private home lives of the public by photography and constant observation, that fall outside of the ordinary give and take of residential life.

“An important aspect of the amenity value of real property is the freedom to conduct your life in your own home without being constantly watched and photographed by strangers.”

A decision of what remedy the Claimants are entitled to has been remitted to the lower court for consideration.

The judgment is here

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