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

The Court of Appeal dismissed the appeal against Mann J’s dismissal of a claim for an injunction to prevent public overlooking of the appellants’ flats from the Tate Modern viewing gallery. The court considered whether the common law tort of private nuisance can, as a matter of principle, encompass overlooking that invades residential privacy, and whether the Human Rights Act 1998 s.6 and Article 8 ECHR require development of the tort to provide a remedy. The court concluded that mere overlooking is not a recognised cause of action in private nuisance at common law, for historical, doctrinal and policy reasons, and that any further protection against overlooking or privacy invasions is a matter for the legislature or for other legal regimes (planning, data protection, harassment, misuse of private information). The court upheld the judge’s dismissal of the claim but did so for different reasons, emphasising the property‑based character of nuisance, the objective amenity test, and the availability of alternative regulatory mechanisms.

Background and parties. The appellants are long leaseholders of flats in the Neo Bankside development facing the Tate Modern Blavatnik Building, which includes a publicly accessible viewing gallery. They sought an injunction requiring the Tate to prevent members of the public and licensees from observing their flats from parts of the viewing gallery, alleging private nuisance and a breach of Article 8 ECHR via s.6 Human Rights Act 1998.

Procedural posture. The claim was heard by Mann J in the Chancery Division (trial judgment reported at [2019] EWHC 246 (Ch)), who dismissed the claim. The appellants were granted permission to appeal to the Court of Appeal on a limited ground; the Tate was permitted to advance additional respondent’s grounds on principle. The Court of Appeal heard the appeal and reserved permission for a respondent’s notice addressing wider policy questions.

Nature of the claim and issues framed.

• The primary relief sought was an injunction restraining public observation of the appellants’ flats from specified parts of the viewing gallery.
• The principal issues were: (i) whether the tort of private nuisance is capable in principle of protecting privacy against overlooking; (ii) whether the Tate’s conduct engaged Article 8 and thus required a remedy under HRA 1998 s.6; and (iii) if nuisance were available, whether the facts here established an actionable interference.

Court’s findings and reasoning. The court accepted Mann J’s factual findings as to significant and intrusive overlooking of the upper flats and that the intrusion was materially intrusive of everyday privacy. However, on legal principle the court concluded that the prevailing weight of authority in this jurisdiction and longstanding doctrinal reasons counsel against recognising mere overlooking as a cause of action in private nuisance. The court explained that nuisance is a property tort limited to those with proprietary or exclusive possession interests, that the amenity/’loss of utility’ test must be applied objectively without regard to undue claimant sensitivity, and that recognising a new cause of action for overlooking would raise serious evidential and line‑drawing problems and risk duplicating or conflicting with planning and statutory regimes and other privacy remedies (confidentiality/misuse of private information, data protection, harassment legislation).

The court also considered Article 8 and HRA s.6 and held that it was not appropriate to develop the common law tort in light of Article 8: Strasbourg authorities had not established that mere overlooking engages Article 8 in this context, the Convention analysis would import considerations (such as claimants lacking proprietary interest, or differing balancing of Article 10 rights) that do not fit the property tort framework, and Member States enjoy a wide margin of appreciation as to remedies. The court therefore declined to extend nuisance and affirmed the dismissal of the claim, but for reasons grounded in common law limits and policy rather than those relied on by the trial judge.

Subsidiary points. The court addressed planning history and the reasonableness/'give and take' principles, noted available measures occupants might take to limit exposure, and emphasised that any legal lacuna is better addressed by Parliament or existing statutory regimes.

The appeal is dismissed. The Court of Appeal concluded that mere overlooking is not a recognised cause of action in private nuisance at common law and that any expansion of legal protection against overlooking or invasions of privacy is a matter for the legislature or other specialised legal regimes; accordingly the judge’s order dismissing the claim for an injunction was affirmed though the appellate court relied on distinct legal reasoning.

Appeal from Mann J, High Court of Justice, Business and Property Courts (Chancery Division), [2019] EWHC 246 (Ch); judgment of the Court of Appeal reported at [2020] EWCA Civ 104 dismissing the appeal.