Being overlooked is not a nuisance

In a case concerning the viewing gallery at the Tate Modern, the Court of Appeal has held that being overlooked may be an invasion of privacy, but it is not a legal nuisance.

Background

The claimants were the long leasehold owners of four flats in the Neo Bankside development build between 2006 and 2012. The flats are directly opposite a new extension of the Tate Modern art gallery called the Blavatnik Building. This building includes a viewing gallery, opened to the public in 2016, which runs around the top floor and allows visitors a 360-degree view of central London.

Each flat comprises a general living space and a triangular end piece known as a winter garden. The winter gardens have floor-to-ceiling single-glazed windows, separated from the flats by double-glazed glass doors, but used as an integral part of the living space.

The viewing gallery attracts hundreds of thousands of people a year and is often open until 10pm. It was accepted that visitors in the viewing gallery frequently look into the claimants' flats (sometimes with binoculars) and take photographs. To address this, the Tate posted a notice on the southern gallery asking visitors to respect the privacy of the Tate’s neighbours and instructed security guards to stop photography.

The claimants issued proceedings alleging legal nuisance – an unreasonable interference with the enjoyment of their flats - and seeking an injunction requiring the Tate to prevent its visitors from observing their flats from the viewing gallery. They also alleged that their human right to respect for their private and family lives and their homes was infringed and, accordingly, the Tate, a public authority, was in breach of section 6 of the Human Rights Act 1998 ("the HRA 1998"). The Tate denied all allegations.

At first instance, all claims were unsuccessful and the claimants appealed to the Court of Appeal.

Decision

The Court of Appeal dismissed the appeal but it gave different reasons for its decision to those given by the judge at first instance. In finding that there was no legal nuisance it held that:

• A private nuisance is a violation of a real property right, rather than a violation of a person’s comfort. In order to have succeeded, the claimants needed to show a material interference with the amenity of their land, judged objectively, with regard to the locality.
• Despite hundreds of years of case law, there was no reported case in which a claimant had successfully brought a claim for nuisance as a result of being overlooked. However, previous cases have held that no such cause of action exists. The prevailing view has been that the remedy for someone who is overlooked is to erect something on their own land which prevents the overlooking.
• The lack of a successful claim for overlooking is not surprising given that it would constrain building in towns and cities: there were sound policy reasons for not extending nuisance to cover privacy.

In relation to the claim for a breach of human rights, the Court of Appeal found that the first instance judge had erred in his approach even though he had also decided this claim to be unsuccessful. That judge had said the law of nuisance could be read, in light of the Human Rights Act 1998, to cover invasion of privacy. But the Court of Appeal said to overlay the law of private nuisance with Article 8 would lead to distortion. Nuisance is limited to property rights whereas Article 8 is not. Only persons with an interest in property can claim in nuisance whereas there is no restriction as to who can claim under Article 8. Questions as to how to balance competing human rights between neighbours have no place in the law of nuisance.

Comment

Although sympathy must be had with the claimants, this ruling was to be expected. To have decided otherwise would have opened the floodgates for claims in built-up areas across the country, which would have had an extremely detrimental impact on development at a time when new housing is sorely needed. There needs to be certainty as to what claims can be brought once buildings are erected, in order to be able to calculate the cost and utility of those buildings and to avoid time-consuming and expensive litigation. 

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