Fearn and others v The Board of Trustees of the Tate Gallery [2019] EWHC 246 (Ch)

This important decision of Mann J shines a light on the possible use of the European Convention on Human Rights in private law property disputes, as well as the potential for developing the law of nuisance to protect an occupier’s privacy.

The owners of four flats in South London, in a development known as ‘Neo Bankside’, brought claims in nuisance and for breach of section 6 of the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights against the Tate Modern museum. The museum had built an extension with a walkway affording a panoramic view of London. This view, unfortunately, also included the living areas of the claimants’ flat interiors. The flat owners brought a claim for an injunction to protect their privacy rights.

Mann J found that “A very significant number of visitors display an interest in the interiors of the flats which is more than a fleeting or passing interest” and that, using its everyday meaning, “The intrusion is a material intrusion into the privacy of the living accommodation“.

The first argument by the claimants was that the Tate is a public authority of a ‘hybrid’ nature. Mann J examined the foundation of the Tate Gallery by the Museums and Galleries Act 1992, as well as the decision in Aston Cantlow and Wilmcote with Billesley Parish Council v Wallbank [2004] 1 AC 546. Mann J held that while the Tate displays, to some degree, some of the factors which are relevant to the question of whether it is exercising public functions, none of them were determinative. Taking them in a global assessment, he concluded that the Tate’s activities are not governmental in their nature. The claim under section 6 of the Human Rights Act failed and the Judge did not need to consider how Article 8 would have operated.

As for the claim in nuisance, it was acknowledged that there was no general legal right to privacy. There is a series of 19th century cases in which the courts have refused to restrain the creation of window openings overlooking adjoining land. Further, non-emanation claims in nuisance were rare. Potentially, a deliberate act of overlooking (such as building a viewing tower to look into the houses of neighbours) might fall within the law of nuisance. Mann J was reinforced in his view by Article 8, which contains a right to respect for an individual’s private life. Since the 1998 Act, the law of nuisance is capable of protecting privacy rights from overlooking in an appropriate case.

In this case, however, the character of the locality was that it is a part of urban south London with significant tourist activity: an urban occupier can expect less privacy than a rural occupier. The defendant’s use of the land was not obviously unreasonable and overlooking was not the purpose of the walkway. On the other hand, the design of the claimants’ flats made them especially susceptible to be looked into (the sensitivity issue in nuisance). The claim therefore failed.