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

Factual and Procedural Background

This case concerns a nuisance claim and a claim under the Human Rights Act 1998 relating to alleged invasions of privacy in four flats located in Block C of the Neo Bankside development in central London. These flats overlook the Tate Modern's Blavatnik Building, specifically a 10th-floor viewing gallery that offers panoramic views of London. The claimants assert that visitors to this gallery can see into their flats' living areas, which are extensively glazed, thereby invading their privacy. The claimants seek injunctive relief to close or screen off parts of the gallery to prevent such viewing. The defendant is the Tate Modern museum, which operates the viewing gallery as part of its public offering. The case involves detailed factual findings regarding the physical layout of the flats and gallery, the history of planning permissions and development, the nature and extent of intrusion experienced by the claimants, and the legal status of the Tate Modern under the Human Rights Act 1998.

Legal Issues Presented

1. Whether the Tate Modern is a "hybrid" public authority under section 6 of the Human Rights Act 1998, such that the claimants can bring a direct claim under Article 8 of the European Convention on Human Rights for invasion of privacy.
2. Whether the law of nuisance is capable of protecting privacy rights against overlooking from a viewing gallery.
3. Whether, on the facts, the operation of the viewing gallery constitutes an actionable nuisance interfering with the claimants' reasonable enjoyment of their flats.
4. The relevance and effect of planning permissions and the character of the locality on the nuisance claim.
5. The appropriate remedies, if any, for the claimants.

Arguments of the Parties

Appellants' Arguments

• The Tate Modern is a hybrid public authority exercising public functions, including the operation of the viewing gallery, and thus is subject to the Human Rights Act 1998.
• Article 8 of the European Convention on Human Rights protects the claimants’ rights to privacy in their homes, which includes protection against overlooking and intrusive viewing.
• The law of nuisance should be developed in light of the Human Rights Act to protect privacy rights, extending to cover the intrusive overlooking caused by the viewing gallery.
• The viewing gallery’s operation causes an unreasonable interference with the use and enjoyment of the flats by enabling intrusive and sustained observation, photography, and use of binoculars.
• Remedial measures short of closure, such as screening, are insufficient to protect privacy.
• Planning permissions did not adequately consider or mitigate the overlooking and privacy concerns.

Defendant's Arguments

• The Tate Modern is not a core or hybrid public authority for the purposes of section 6 of the Human Rights Act 1998 in respect of the viewing gallery.
• The operation of the viewing gallery is not a function of a public nature and thus does not attract direct enforcement under the Human Rights Act.
• The law of nuisance does not protect privacy or prevent overlooking; no legal right to privacy from overlooking exists under nuisance law.
• Planning permissions for both developments were granted with awareness of the respective projects and their interaction; the planning process is the appropriate control mechanism for such issues.
• The character of the locality is an urban mixed-use area where less privacy is to be expected; the viewing gallery is a reasonable use consistent with the locality.
• The claimants have increased their own sensitivity to overlooking by choosing extensively glazed flats and using winter gardens as living space, thus they must tolerate the resulting exposure.
• The claimants can take reasonable remedial steps themselves, such as lowering blinds or installing privacy films, to mitigate intrusion.
• Restrictions on gallery opening hours and measures to discourage intrusive behavior have been implemented and form part of the defendant’s reasonable use.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining the factual matrix, including the physical layout of the flats and the viewing gallery, the history of planning and development, and the experiences of the claimants and witnesses. The court found that a significant number of visitors to the gallery do engage in viewing, photographing, and sometimes using binoculars to observe the interiors of the flats, causing the claimants subjective discomfort and a sense of intrusion.

On the Human Rights Act claim, the court analysed whether the Tate Modern is a hybrid public authority under section 6. It concluded that although the Tate receives some public funding and is subject to certain controls, it is not exercising functions of a public nature in operating the viewing gallery. The operation of the gallery itself is not a discrete public function. Therefore, the direct claim under Article 8 fails at this threshold.

Turning to nuisance, the court reviewed the legal principles, confirming that nuisance protects interests in land and can include interference with reasonable enjoyment of land. It acknowledged the absence of a general legal right to privacy but recognized that the law of nuisance can be developed to protect privacy rights in appropriate cases, particularly in the home, consistent with the Human Rights Act.

The court engaged in a detailed assessment of the planning permissions, concluding that the local planning authority did not meaningfully consider the overlooking from the viewing gallery in its permissions. Therefore, planning permissions provided little assistance in assessing nuisance.

The character of the locality was found to be an urban mixed-use area with cultural, residential, and tourist uses, where residents must expect a lower level of privacy than in rural settings. The court found the operation of the viewing gallery to be a reasonable use of the defendant’s land consistent with the locality and not inherently objectionable.

The court then considered the claimants’ flats, noting their extensive glazing and the incorporation of winter gardens as living accommodation, which increased their exposure and sensitivity to overlooking. The court held that a hypothetical alternative design with more screening would not attract the same intrusive interest and would not give rise to a nuisance claim. The claimants’ choice of extensively glazed flats created a heightened sensitivity, which they must tolerate under the "give and take" principle of nuisance law.

The court also considered the availability of remedial measures for the claimants, such as lowering blinds or installing privacy films, which, while imperfect, provide reasonable means to mitigate intrusion. The court found that these measures and the defendant’s restrictions on gallery opening hours and use form part of the overall reasonableness assessment.

Balancing all factors, including the nature of the locality, the defendant’s use of land, the claimants’ choice and use of their properties, and the availability of mitigations, the court concluded there was no actionable nuisance on the facts.

Finally, the court addressed the claimants’ request for remedies but found it unnecessary to grant injunctions or other orders, noting that any injunction would be limited to the southern section of the gallery, and that the defendant’s existing control measures are part of the reasonableness assessment.

Holding and Implications

The claim is DISMISSED.

The court held that the Tate Modern is not a hybrid public authority for the purposes of the Human Rights Act 1998 in relation to the viewing gallery, so no direct claim under Article 8 arises. The law of nuisance can protect privacy rights in an appropriate case, but on the facts here, the operation of the viewing gallery does not constitute an actionable nuisance. The claimants’ flats’ architectural design and their use increase their sensitivity to overlooking, which they must reasonably tolerate in the urban locality. The defendant’s use of its land is reasonable, especially with existing mitigations and restrictions on gallery use. The planning permissions do not provide a substantive defense but are not determinative. The decision does not establish new precedent but clarifies the application of nuisance and public authority concepts in the context of privacy and overlooking in urban developments. The direct effect is that the claimants’ injunction claim fails, subject to the defendant maintaining agreed restrictions on gallery use.