Introduction

The case of Fearn & Ors v. The Board of Trustees of the Tate Gallery deals with allegations of privacy invasion under the Human Rights Act 1998, stemming from the development of glass-walled flats in central London and the adjacent viewing gallery of the Tate Modern's Blavatnik Building. The claimants, owners of four flats in the Neo Bankside development, argued that the panoramic view provided by the viewing gallery enabled the public to peer directly into their living spaces, thereby infringing their privacy rights.

The key issues revolve around whether the Tate Gallery qualifies as a "hybrid" public authority under the Human Rights Act and whether the operation of the viewing gallery constitutes an actionable nuisance that violates the claimants' rights to privacy as protected under Article 8 of the European Convention on Human Rights.

Summary of the Judgment

The High Court, presided over by [Judge's name not provided], concluded that the Tate Gallery does not qualify as a "hybrid" public authority capable of giving rise to a direct claim under the Human Rights Act 1998. Consequently, the direct claim under Article 8 failed. Furthermore, the court assessed the nuisance claim and determined that the level of intrusion into the claimants' privacy did not constitute an actionable nuisance. The decision effectively dismissed the claimants' requests for an injunction to prevent the Tate Modern from using or altering the viewing gallery in a manner that would compromise their privacy.

Analysis

Precedents Cited

The judgment extensively referenced precedents to evaluate both the status of the Tate Gallery as a public authority and the applicability of nuisance law to privacy concerns.

• Aston Cantlow and Wilmcote with Billesley Parish Council v Wallbank ([2004] 1 AC 546): This House of Lords decision established criteria for determining whether a body qualifies as a public authority, emphasizing governmental nature, public funding, and statutory functions.
• Network Rail Infrastructure Ltd v Morris ([2004] EWCA Civ 172): Clarified aspects of public nuisance, particularly regarding electronic interference, and reiterated the importance of reasonableness and foreseeability.
• Victoria Park Racing v Taylor ([1937] AC 479): Explored the limits of nuisance law in cases involving public entertainment and structural alterations.
• Robinson v Kilvert ([1899] 1 Ch 255): Addressed nuisances affecting sensitive uses of property, touching upon the concept of "abnormal sensitiveness."
• Lawrence v Fen Tigers ([2004] EWCA Civ 172): Highlighted the role of planning permissions in nuisance claims and affirmed that planning decisions are not automatically shields against nuisance actions.
• Raciti v Hughes ([1995] 7 BPR 14837): Exemplified how deliberate privacy invasions could constitute nuisance.
• Marx v Facchini ([2016] EWHC 220 (QB)): Discussed breaches of Article 8 and the necessity for the claimant to demonstrate how their rights were specifically infringed.

These precedents collectively informed the court's approach to evaluating whether the Tate Gallery's operations imposed a public function and whether those operations could legally infringe upon individual privacy through nuisance.

Legal Reasoning

The court's reasoning was methodical, addressing the two primary claims: the classification of the Tate Gallery under the Human Rights Act and the nuisance allegation.

1. Is the Tate Gallery a Public Authority?

The court scrutinized whether the Tate Gallery could be deemed a "hybrid" public authority. Key factors assessed included:

• Statutory Foundation: Established under the Museums and Galleries Act 1992, but the court noted that mere statutory creation does not automatically confer public authority status.
• Public Funding: While the Tate receives significant public funds (£35.8m in 2016-17), it also relies heavily on private funding, corporate sponsorships, and event hosting, diminishing the weight of public funding in determining public authority status.
• Public Interest and Accountability: Although the Tate operates in the public interest and is subject to certain public controls, its functions are not solely or primarily governmental. The court emphasized that operating art galleries and promoting art appreciation do not equate to performing governmental functions.

Conclusively, the court determined that the Tate Gallery does not meet the threshold to be considered a "hybrid" public authority under the Human Rights Act 1998.

2. Nuisance Claim: Invasion of Privacy

With the exclusion of the Human Rights claim, the court focused on whether the claimants had established an actionable nuisance. The assessment included:

• Definition of Nuisance: Private nuisance involves activities that interfere with the reasonable enjoyment of one's land. The court recognized that privacy could be an aspect of land amenity.
• Nature of Interference: The viewing gallery's design allowed extensive views into the claimants' flats, leading to persistent public intrusion through gaze, photography, and other interactions.
• Reasonableness: The court evaluated whether the interference was unreasonable, considering the urban, tourist-heavy locality and the balance between public interest in the viewing gallery and the claimants' privacy expectations.
• Mitigating Factors: The Tate Modern implemented measures such as posting notices, instructing security to prevent photography, and adjusting gallery hours to mitigate intrusion, albeit with limited effectiveness.
• Comparison to Hypothetical Designs: The court hypothesized that less glassed designs with more barriers would result in less intrusive views, suggesting that the current gallery's design inherently fosters higher privacy intrusion.

Ultimately, the court found that the level and nature of intrusion did not reach the threshold of being an actionable nuisance, especially given the measures in place and the reasonsed expectations within a dense urban setting.

Impact

This judgment has significant implications for urban development, particularly concerning the balance between architectural innovation, public amenities, and individual privacy rights. Key impacts include:

• Clarification of Public Authority Status: Reinforces the criteria required to designate an organization as a public authority under the Human Rights Act, emphasizing that not all statutorily created organizations qualify.
• Expansion of Nuisance Law: Although the court did not find nuisance in this case, it acknowledged the potential for nuisance law to evolve to protect privacy, especially under the Human Rights framework.
• Architectural Considerations: Developers must carefully consider the privacy implications of their designs, particularly in high-density areas where buildings interact closely.
• Mitigation Measures: Highlights the necessity for effective measures to balance public access and amenities with resident privacy, though it also underscores the challenges in enforcing such measures.

Future cases may draw on this judgment when assessing similar conflicts between public infrastructure and private residential rights, potentially influencing both legal strategies and urban planning policies.

Complex Concepts Simplified

Hybrid Public Authority: An organization that performs both public and private functions. Under the Human Rights Act 1998, a "hybrid" public authority can be directly subject to human rights claims.

Nuisance: A tort in common law that involves interference with a person's enjoyment and use of their land.

Article 8 ECHR: Protects individuals' rights to respect for their private and family life, their home, and their correspondence.

Human Rights Act 1998: Incorporates the European Convention on Human Rights into UK law, allowing individuals to enforce their Convention rights in UK courts.

Reasonable Expectation of Privacy: A legal standard assessing whether an individual should expect privacy in their circumstances, influencing the determination of privacy rights.

Interference: Any action or omission by a defendant that affects the claimant's use or enjoyment of their property.

Conclusion

The Fearn & Ors v. The Board of Trustees of the Tate Gallery judgment underscores the nuanced interplay between public facilities and private residential privacy within urban environments. By delineating the criteria for a "hybrid" public authority and affirming the existing boundaries of nuisance law, the court provided clarity on the limits of legal recourse available to residents facing intrusions resulting from public amenities. The decision emphasizes the importance of thoughtful architectural design and effective mitigation measures to balance public interest with individual privacy rights, setting a precedent for future urban development disputes.