The Court of Appeal has now considered whether the use of a viewing gallery at the Tate Modern constitutes common law nuisance, as an invasion of privacy.

The case was originally heard in the High Court, where the judge concluded that the owners of four luxury apartments, with wall-to-wall and floor-to-ceiling windows and views across London, were not entitled to an injunction preventing the use of the Tate’s viewing gallery.

The apartment owners had argued that the Tate was committing a common law nuisance, and an unreasonable and unlawful interference with their property, by allowing visitors onto the terrace and therefore the opportunity to look into the apartments from that vantage point. However, the Court of Appeal agreed with the judge at first instance and refused an injunction on the basis that the interference experienced by overlooking from the terrace did not constitute common law nuisance at all. 

Whilst at first instance the judge considered and envisaged that there may be cases where overlooking may constitute nuisance, the Court of Appeal took the view that the law of nuisance should not extend to this type of invasion of privacy. It relied on centuries of cases on common law nuisance where there has never been a reported case to suggest that nuisance should extend to issues of overlooking.

As I concluded in my note on this case at first instance, the facts here are particularly unusual, and each case will have its own contextual background. What we can take from the Court of Appeal’s judgment is it is not the common law tort of nuisance that should protect an individual’s privacy, but rather that protection is provided by other legal frameworks, such as the planning regime, data protection and protection from harassment.

The courts will be reluctant to extend the bounds of nuisance to protect types of interference not already seen in historic case law.