Fearn & Ors v Board of Trustees of the Tate Gallery  EWCA Civ 104
25th February 2020
There was no cause of action that existed in respect of a private nuisance for overlooking. The instant case was more akin to an invasion of privacy rather than nuisance, and Parliament should be the body to legislate that area rather than the Courts.
It was not appropriate to use Article 8 of the ECHR to extend the common law in that respect.
A block of flats were in a development adjacent to a new extension of the Tate Modern art gallery. Each flat comprised a general living space, and a triangular end piece known as a ‘winter garden’. The winter gardens had floor-to-ceiling windows, and although they had been conceived by developers as a form of indoor balcony, a number of tenants used these ‘gardens’ as part of their living accommodation. Five tenants in the block were the Claimants in the instant matter.
The Tate Gallery had built a viewing gallery around all four sides of the top floor, which was open to visitors. Those visitors using the gallery had an uninterrupted view of the living areas of the flats, looking in and sometimes using cameras and binoculars.
The tenants claimed that the use of sections of the viewing gallery unreasonably interfered with their enjoyment of their flats so as to be a nuisance. This use also infringed their rights under Article 8 of the ECHR and, as they alleged the Tate Gallery was a public authority, the Tate was in breach of section 6 of the Human Rights Act 1998 (“the 1998 Act”).
The issues were therefore:
- Was there a breach of the tenants’ human rights under the 1998 Act?
- Could the act of overlooking ground a cause of action in private nuisance?
- Did the facts of the case establish a private nuisance?
At first instance, Mann J found that although there was a great degree of intrusion into the flats, the privacy claim under the 1998 Act failed because the Tate Gallery was not exercising functions of a public nature – see section 6(3)(b) of the 1998 Act. None of the factors raised by the tenants were determinative of this question, and it had to be viewed as part of a “global assessment” of the case.
With regards to the action in private nuisance, the Judge found that overlooking could amount to an actionable nuisance and there did not have to be an ‘emanation’ from one land to another to ground such a cause of action. Any doubt was resolved by Article 8 of the ECHR, and the Courts could give effect to those rights by developing the common law. Whether or not a particular instance of overlooking would amount to an actionable nuisance would depend on all the circumstances of the case and whether there was a legitimate expectation of privacy.
However, Mann J concluded that a claim in nuisance was not made out. The tenants lived in an inner-city environment, and so could expect less privacy than in rural areas, and the operation of the viewing gallery was not inherently objectionable – viewing into the tenants’ flats was not its purpose. In choosing to buy the flats, the tenants had created or submitted themselves to an increased sensitivity to privacy. Mann J was of the opinion that it would be wrong to allow a self-induced exposure to the outside world to create a liability in nuisance. This was not least because the winter gardens had been conceived a form of an internal balcony, and one dd not expect as much privacy on a balcony. By moving their living activities into that area, the tenants had created their own additional sensitivity to the viewing public. Finally, the tenants could have taken remedial measures such as installing blinds etc to reduce their complaints.
The claim therefore failed.
Decision on appeal
The Court of Appeal (Etherton MR, Lewison and Rose LJJ) dismissed the appeal by the tenants, although they disagreed with Mann J in a number of respects.
They found that the weight of judicial authority established that there was no cause of action in private nuisance for overlooking, and likened it to rights to light and rights to air flow. Not every annoyance was actionable. With regards to overlooking, it would be difficult to apply the objective test in nuisance for determining whether there had been a material interference with the amenity value of the land. When considering whether to extend the common law, it was relevant to look at other means of protecting individuals, including planning laws and control. The instant case was more akin to an invasion of privacy rather than damage to interest in property, and there were already laws that bore on privacy. It was more appropriate to leave it to Parliament to formulate further laws as they deemed necessary rather than extending common law nuisance.
Furthermore, Mann J had approached the Article 8 question incorrectly. Instead, the Judge should have asked himself whether, if the tort of nuisance did not otherwise extend at common law to overlooking, there was nevertheless an infringement of Article 8. If so, the next stage was whether it was appropriate to extend the common law in order to provide a remedy for the tenants and so avoid a breach of section 6 of the 1996 Act on the part of the Courts as a public authority. The Judge made no finding of infringement of Article 8 because he decision was, in essence, that there was no reasonable expectation of privacy where preventative measures had not been taken by the tenants. Nevertheless, there had not been a case of ‘overlooking’ before the Strasbourg Court, and Article 8 would distort the common law tort of private nuisance – for example in the broader range of persons for whose benefit it could be invoked, the breadth of factors to consider in each case, and the applicability of justification under Article 8(2).
There was therefore no justification to extend common law private nuisance, and the claim had to fail on all issues.