Fearn & Ors v The Board of Trustees of the Tate Gallery

The operation of a viewing gallery may, in an appropriate case, constitute a private nuisance by materially interfering with the use and enjoyment of neighbouring land through intrusive overlooking. Privacy in the home is capable of protection through the common law of nuisance, informed by Article 8 of the Convention. The question remains whether the defendant’s use is unreasonable in the locality, applying the ordinary give-and-take principle. Relevant considerations include the character of the locality, the nature and intensity of the defendant’s use, the claimant’s use of the land, reasonable expectations of privacy and available protective measures. A body established and partly funded by statute is not necessarily a hybrid public authority.

The claimants owned four flats in Neo Bankside, adjacent to the Tate Modern’s Blavatnik Building. Visitors to a 360-degree viewing gallery could see extensively into the flats’ living accommodation, and some visitors looked, peered, photographed or used binoculars. The claimants sought an injunction requiring closure or screening of part of the gallery.

They relied on a direct claim under section 6 of the Human Rights Act 1998, alleging that the Tate was a hybrid public authority, and on private nuisance. The central questions were whether the Tate exercised functions of a public nature, whether nuisance could protect privacy from overlooking, and whether the gallery’s operation was unreasonable in the circumstances.

1. Human Rights Act claim. The Tate was not exercising functions of a public nature for the purposes of section 6(3)(b) of the Human Rights Act 1998. The statutory foundation, partial public funding, public benefit, governmental controls and reporting obligations were relevant but not determinative. The global question was whether the functions were governmental in nature. Operating museums, exhibiting art and promoting public enjoyment and understanding of art were not essentially governmental activities. The viewing gallery was not separately a public function. The direct Article 8 claim therefore failed at the threshold.
2. Capacity of nuisance to protect privacy. The authorities concerning windows overlooking neighbouring land did not establish that nuisance could never protect privacy. In an appropriate case, directed and intentional overlooking may materially interfere with the utility and amenity of a home. Article 8, including its express protection of the home, reinforced the development of nuisance to protect privacy. The gaze of observers could, if necessary, be treated as analogous to an emanation.
3. Application of nuisance principles. The relevant inquiry was whether operation of the gallery constituted an unreasonable use of land in the locality, applying the principle of reasonable user and give and take. The locality was an inner-city area combining residential, cultural, tourist and commercial uses. Operating an art gallery and viewing platform was not inherently unreasonable. Planning permission provided little assistance because the evidence did not show focused consideration of overlooking.
4. The claimants’ flats were unusually exposed because of their extensive glazing and because the winter gardens, originally conceived as quasi-balconies, had been incorporated into living accommodation. That self-created sensitivity was relevant to the overall assessment. A less exposed design would have attracted less sustained attention and would have involved an intrusion within what residents in that locality should tolerate. The availability of blinds, privacy film, curtains or screening measures was also relevant to the balance.
5. The claim failed on both causes of action. It was dismissed, subject to the defendant undertaking to maintain the stated restrictions on gallery access and the other control measures.

First-instance decision. No prior appellate decision was stated in the judgment.