20 April 2020

RED alert - Spring 2020 – 2 of 4 Insights

Permission to peek – Tate Modern viewing platform not a "nuisance"


Fearn v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104


Residents of a luxury block of flats on London's South Bank have failed in their bid to prevent visitors of the Tate Modern Gallery from peering into their million-pound homes.

Five residents of Neo Bankside launched an appeal last year after losing their High Court battle to force the Tate Modern to close part of their 10th floor viewing platform. The Court of Appeal, dismissing their appeal, has ruled that "mere overlooking" by Tate Modern Gallery visitors is not capable of giving rise to a private nuisance.

The facts

This case concerns a dispute between residents of the Neo Bankside development and the adjacent Tate Modern Gallery.

In 2016, the Tate completed the construction of the Blavatnik Building, which featured a viewing gallery running around the outside of the 10th floor offering panoramic views over London. The distance between the allegedly offending viewing gallery and the flats at Neo Bankside was agreed between the parties to be just over 34m.

Unfortunately for the tenants, the floor to ceiling windows of their flats meant that the 600,000 annual visitors to the Tate viewing gallery not only enjoyed views of London, but also had a view straight into their living accommodation. The residents claimed that the gallery visitors frequently photograph, film and on occasion even use binoculars to look into the flats. Pictures of the flats interiors were also posted on social media platforms such as Instagram.

In 2017, the claimants brought a claim for an injunction requiring the Tate Modern to close or cover the windows of part of the gallery which provided views into their flats. The claim was brought in private nuisance – a common law tort defined as an unlawful interference with a land owner's use or enjoyment of their land. The claim also referred to section 6 of the Human Rights Act 1998 and article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

At first instance it was held that, "the law of nuisance is capable, in an appropriate case, of operating to as to protect the privacy of a home as against another landowner", but concluded that there was no actionable nuisance in this instance given the reasonableness of the use of the defendants' land and the measures that the claimants could take.

The appeal

The Court of Appeal dismissed the appeal and upheld Mann J's decision, albeit for different reasons. The Court concluded that the "overwhelming weight" of judicial authority is that mere overlooking is not capable of giving rise to a cause of action in private nuisance.

The Court found "there are already other laws which bear on privacy", such as the Data Protection Act 2018 or the Protection from Harassment Act 1977, adding:

"It would be preferable to leave it to parliament to formulate any further laws that are perceived to be necessary to deal with overlooking rather than to extend the law of private nuisance."

Our comments

The High Court threw a spanner in the works in the first instance decision last year when it permitted the use of the law of nuisance to protect the privacy of a homeowner against another landowner. In circumstances of overlooking, it would be difficult to apply an objective test for determining whether there has been a material interference with the amenity value of the affected land.

As the Court of Appeal pointed out, it is difficult to envisage any clear legal guidance regarding where the line would be drawn between what is legal and what is not, depending on the number of people and frequency of overlooking.

Rightly or wrongly, the Court of Appeal's decision pushes the question of privacy back on to existing statutory rights and the planning process which, going forward, will be the forum in which overlooking issues should be raised.

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