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Case Analysis: Fearn v Trustees of the Tate Gallery [2018] EWHC 246 (Ch)

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22nd February 2019

Case Analysis: Fearn v Trustees of the Tate Gallery [2018] EWHC 246 (Ch), Mann J, 11^th February 2019.

Facts

The claim related to a public viewing platform on the 10^th Floor of the Tate Modern art gallery in Central London. The gallery overlooked a modern residential development approx.35m away with striking floor to ceiling windows. As a result, visitors using the platform could see into the living areas of the flats. There was evidence that there were up to 300 visitors at a time, and that a significant minority waived and shouted at the occupiers of the flats, took photos and posted pictures of the interiors of the flats on social media. The owners of the flats brought a claim for private nuisance against the trustees of the gallery.

Decision

Mann J reviewed the principles of private nuisance as applied to windows and overlooking, as well as the flatowners’ rights to privacy under Art.8 of the European Convention on Human Rights.

The judge was “minded to conclude” that as a matter of principle “the tort of nuisance would probably have been capable … of protecting privacy rights, at least in a domestic home”. In particular, “a deliberate act of overlooking could amount to an actionable nuisance”. He gave the example of “one neighbour who erects a viewing tower whose only purpose is to enable views into the gardens and houses of other neighbours, and who then charges an entry fee to allow members of the public to come in and do just that”, which would be likely to fall within the constituent parts of the law of nuisance. Even if the motive was merely mercenary, as opposed to malicious, it would still be capable of being a nuisance.

Any doubt has in any event been removed by the right to respect for an individual’s “private and family life … [and] home” in the Human Rights Act 1998 and Art.8: see McKennitt v Ash [2008] QB 73.

But that did not mean that all overlooking becomes a nuisance. Whether anything is an invasion of privacy depends on whether, and to what extent, there is a legitimate expectation of privacy. That inquiry is likely to be closely related to the sort of inquiry that has to take place in a nuisance case into whether a landowner’s use of land is, in all the circumstances and having regard to the locality, unreasonable to the extent of being a nuisance.

Nevertheless, the judge held there was no nuisance. He relied on the following:

• The character of the locality. This was “urban south London” where an occupier can expect rather less privacy than a rural occupier. The judge said that “anyone who lives in an inner city can expect to live quite cheek by jowl with neighbours”.
• The use of the gallery’s land was not in itself unreasonable. A viewing platform for tourists was not “inherently objectionable”. The purpose of the platform was not to enable tourists to gaze into the rooms of the flat owners.
• The nature of the flats was a “particularly sensitive one”. If the flats had conventional windows and frames, there would not have been any nuisance claim because (i) they would have not attracted the gaze of tourists, and (ii) the occupiers would have been less exposed. The judge said that “if the claimants have a design which raises the privacy invasion then they have created their own sensitivity and will have to tolerate what the design has created”.

Moreover, there should be an element of ‘give and take’. The occupiers of the flats could have taken remedial steps such as using solar blinds or installing net curtains.

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