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

Mere overlooking from one property into another is not actionable as private nuisance at common law. Private nuisance protects interests in land, including its objectively assessed amenity value, but the common law has never recognised a general right to privacy from being observed.

The courts should not extend nuisance to overlooking where planning control and legislation provide more appropriate means of balancing public and private interests. Article 8 does not justify overlaying the tort with Convention principles or creating a new nuisance claim. If overlooking were actionable, a claimant’s ordinary use of land would not be defeated merely because the property was especially sensitive or because protective measures were available.

The claimants owned four flats in Neo Bankside, opposite the Tate Modern’s Blavatnik Building. The building’s viewing gallery enabled visitors to look directly into the flats. Visitors frequently observed, photographed and occasionally filmed the interiors.

The claimants sought an injunction in private nuisance and alleged that the Tate had breached their Article 8 rights under the Human Rights Act 1998. Mann J dismissed the claim: [2019] EWHC 246 (Ch). The claimants appealed on issues concerning overlooking, privacy, protective measures and the Tate’s status under the Act. The central issue was whether overlooking from the viewing gallery could constitute actionable private nuisance.

1. Appeal dismissed. The order dismissing the claim was affirmed, although for different reasons.
2. Private nuisance is a property tort. It protects legal rights in land and the objectively assessed amenity value of land. The claimant must have an interest in, or exclusive possession of, the affected land. Material interference is assessed by reference to the locality and the standard of a normal person, without regard to undue sensitivity: Hunter v Canary Wharf Ltd [1997] AC 655; Lawrence v Fen Tigers Ltd [2014] UKSC 13.
3. The court rejected a free-ranging balancing exercise between neighbours. The reasonable-user principle is expressed through the requirements that the defendant’s act be necessary for the common and ordinary use of the land and conveniently done, with proper consideration for neighbours: Bamford v Turnley (1862) 3 B&S 66; Southwark London Borough Council v Tanner [2001] 1 AC 1.
4. Overwhelming authority established that mere overlooking is not actionable nuisance. The absence of such a remedy reflected longstanding policy concerning building and development in towns and cities. Planning control, and legislation concerning privacy, harassment, data protection and misuse of private information, were more suitable mechanisms for reconciling competing interests. Parliament, rather than the courts, should formulate any further protection.
5. Article 8 did not justify extending nuisance. The proper analysis would first require determining whether Article 8 was infringed and then whether extending the common law was appropriate to avoid a breach of section 6 of the Human Rights Act 1998. Mere overlooking had not been held by the Strasbourg court to breach Article 8. Overlaying nuisance with Convention concepts would also alter its rules on standing, objective assessment and justification.
6. Alternatively, if overlooking were actionable, the judge had erred by treating the flats as unduly sensitive and by expecting the claimants to install blinds, film or curtains. The flats were being used normally as homes. Protective measures were not a substitute for applying the nuisance principles of material interference and reasonable user.

• Court of Appeal (Civil Division): Appeal dismissed and the order affirmed for different reasons.
• High Court of Justice, Chancery Division: Mann J dismissed the claim: [2019] EWHC 246 (Ch) .