Neighbourly Nuisance: Houses, Hedges and Privacy

In the last two decades, it seems that social media has become ever-present.

One of the consequences is that dividing lines between our private and professional lives which were once so clear have now become blurred due to people's readiness to share details of what happens in and out of the office.

This creeping process of exposure has naturally led to a tension about where exactly individuals who wish to retain some degree of privacy can draw the line.

Some might argue that the clearest lines of all may be those which mark out the boundaries of our own homes.

However, whilst many families might regard what happens within those parameters as essentially our own business, things are not always so clear cut.

It's a topic about which I've been able to offer some clarification to one reader of the Sunday Times (https://www.thetimes.co.uk/article/74a04b68-463b-403b-b64a-0f8944f1a1a9?shareToken=5097ed979faf6c4bb4b805d8ce080e74).

They had written to the 'paper asking for guidance in relation to a development of two buildings at the rear of their home.

Even though they have a hedge of a height beyond all but the tallest humans to have ever lived or those equipped with a stepladder, the other properties in question are being constructed on land which has been raised by more than five feet.

That has given rise to fears that whoever eventually lives there will be able to see into the reader's bedroom windows.

Although they were reluctant to complain to their local council, they asked if there was anything which they could do to prevent that happening.

I suggested that in this reader's case or in any similar circumstances which can arise, liaising with the local Planning Department may actually be the most productive route to get the planning consent amended, if that is the objective.

It is worth remembering that if a developer has been granted planning permission that only means that they have successfully navigated a statutory planning process.

That process doesn't assess the underlying legal rights of developers or third parties.

Exactly what those rights are will be clear when title deeds registered at the Land Registry are considered (https://www.gov.uk/government/organisations/land-registry/about).

The Land Registry is a database of more than 26 million titles showing how almost 90 per cent of the land mass of England and Wales is owned.

Those Registry records may show that the land on which our homes are built was part of a larger plot, carved up over time.

Furthermore, that process of parcelling the land up may equally have resulted in the creation of covenants preventing future owners from certain subsequent uses, activities or alterations.

They can include limitations on height but are usually only enforceable by individuals enjoying the benefit of the restrictive covenant or covenants in question.

The title deeds may also contain easements - a right over one piece of land existing for the benefit of another piece of land and can include a right to light through certain windows.

There is one other aspect which individuals finding themselves in a position like that of the Sunday Times' reader I advised may wish to consider; namely, that any overlooking of a property might amount to a nuisance.

A nuisance is generally taken to mean the interference with someone's ability to fully enjoy their rights in a piece of land.

It is an area of law which is not too well-established but which gained particular clarity thanks to a Supreme Court decision in February last year.

The judgement was handed down in a case brought by residents in a London apartment block whose homes were directly opposite a viewing platform on the top floor of one part of the Tate Modern art gallery.

They had complained that the proximity had enabled gallery visitors to "display an interest in the interiors" of their flats.

Although some merely waved, others used binoculars to peer into the apartments. The court heard how "many photographs showing the interiors of the flats have been posted on social media".

The Supreme Court's finding in the residents' favour was important because it established that overlooking in this case did indeed constitute a nuisance (https://www.supremecourt.uk/cases/docs/uksc-2020-0056-judgment.pdf).

Progressing a claim of a similar nature, though, requires a very detailed consideration of the degree to which someone's property might be overlooked and, therefore, might be a nuisance.

Legal action is, of course, not necessarily straightforward. It may not be a rapid process or one without expense either.

That is why I believe engaging with local authorities - either directly or through a planning consultancy familiar with a council's planning framework - can help demonstrate whether sufficient consideration was given to the potential impact on the surrounding community of a scheme giving rise to complaint.