Adjacent flats: a new installation for Tate Modern?

13 February 2020 by Rosalind English

Fearne and others v Tate Gallery  [2020] EWCA Civ 104, on appeal from: [2019] EWHC 246 (Ch)

The Court of Appeal has just dismissed the actions in nuisance by residents of flats adjacent to the the Tate Modern art gallery on the south bank of the River Thames in central London. (Disclaimer: the author of this post has just moved into an apartment in the area but has no association with the flats or the residents central to this appeal.)

At the outset of this judgment, the Court observed that

the case, and this appeal, raise important issues about the application of the common law cause of action for private nuisance to overlooking from one property to another and the consequent invasion of privacy of those occupying the overlooked property.

The following discussion quotes from the Court’s own press report. References to paragraph numbers are in bold.

The appellants are the owners of four flats adjacent to the Tate Modern art gallery. The flats are of a striking modern design, and include “winter gardens”, a type of indoor balcony with floor-to-ceiling windows looking out over London. These flats were designed and constructed between 2006 and 2012. Around the same time, a new extension to the Tate Modern was built called the Blavatnik Building. On the top floor of the Blavatnik Building there is a viewing gallery which runs all along the four sides and allows visitors to the Tate Modern to enjoy a 360-degree panoramic view of central London. The viewing gallery attracts hundreds of thousands of people each year with a maximum of 300 visitors at one time. From the south side of the viewing gallery, visitors can see directly into the “winter gardens”, through to the general living accommodation of the flats. Visitors to the viewing gallery frequently look into the appellants’ flats, sometimes with binoculars, and less frequently take photographs which they post on social media.  On the platform Instagram there were 124 posts in the period between June 2016 and April 2018. It has been estimated that those posts reached an audience of 38,600. 

As the Court of Appeal observed,

There is no planning document which indicates that overlooking by the viewing gallery in the direction of Block C was considered by the local planning authority at any stage. It is not likely that the planning authority considered the extent of overlooking. Further, while the Neo Bankside developer was aware of the plans for a viewing gallery, they did not foresee the level of intrusion which resulted.

The appellants claimed that by allowing visitors to overlook into their flats, the Tate had committed the tort of nuisance, and sought an injunction against the Tate to close the part of the viewing gallery which gives views into their flats. Private nuisance is a common law tort, or civil wrong, which is defined as an unlawful interference with a land owner’s use or enjoyment of their land. This “overlooking” was also alleged to breach the appellants’ right to respect for family and private life under Article 8 of the European Convention, which allows for claims against state entities.

In its defence, the Tate denied that it was a public authority for the purposes of the Human Rights Act 998, and, insofar as it was a hybrid public authority for the purposes of that Act, the Tate alleged that its use of the relevant part of the viewing gallery was a private act. It denied that the claimants were victims of a breach of Article 8 of the Convention. Even if it were to be found that its use of the relevant part of the viewing gallery interfered with the claimants’ right to respect for their private and family lives and their homes, the Tate maintained that such interference was justified under Article 8.2, which allows for certain exceptions to the right to respect for privacy in the public interest. The Tate alleged that it had taken all reasonable steps to ensure that its visitors did not cause any disturbance to its neighbours, including the claimants.

The trial took place before Mr Justice Mann in the High Court of Justice on 2, 5, 6, 7, and 12 November 2019. He undertook a site visit and found that  there was indeed material intrusion into the privacy of the living accommodation, using the word “privacy” in its everyday meaning and not pre-judging any legal privacy questions that arise. Nevertheless, he dismissed the claim. One of the reasons he reached this conclusion was that he found that the claimants could not rely upon a direct claim in privacy under section 6 of the HRA 1998 and Article 8 of the Convention, because the Tate does not have, or in this case was not exercising, functions of a public nature within the HRA 1998. Accordingly, the direct privacy claim failed, and the Judge said that he did not have to consider how Article 8 would have operated had the Tate been a public authority.

As far as the private law claim based on the tort of nuisance was concerned, Mann J considered that whilst the tort should not exclude overlooking, he had to take into account that the claimants had moved into an inner city urban environment, with a significant amount of tourist activity. He said that

an occupier in that environment can expect rather less privacy than perhaps a rural occupier might, and that anyone who lives in an inner city can expect to live quite cheek by jowl with neighbours.

Furthermore, he noted that the complete glass walls of the living accommodation meant that the developers, in building the flats, and the claimants as successors in title who chose to buy the flats, had created or submitted themselves to a sensitivity to privacy which was greater than would have been the case of a less glassed design. 

So the claimants had in effect failed to clear three hurdles; first, that the act by the Tate was not one of a public authority so as to engage the Convention on Human Rights, that the claimants had, in the words of the common law, “come to the nuisance” both in their choice of neighbourhood and flat design.

The flat owners were given leave to appeal, one of the grounds being that for the purposes of the claimants’ claim under the HRA 1998 s.6, the Tate is a “hybrid” authority and therefore not automatically outwit the reach of the Human Rights Act.

The Court of Appeal unanimously dismissed the appeal.

Reasoning behind the judgment

The Court of Appeal rejected the appellants’ case on the basis that overlooking does not fall within the tort of nuisance. Nuisance involves a range of interferences with land, the most relevant one in our case being the nuisance by interference with a neighbour’s quiet enjoyment of his property. The problem with listing categories of actionable nuisance is that these would not easily accommodate possible examples of nuisance in new social conditions. Physical or calculable damage as a result of nuisance is no longer even necessary; loss of amenity,   loss of amenity, such as results from noise, smoke, smell or dust or other emanations, may not cause any diminution in the market value of the land, but may still constitute the tort of nuisance.

The best route for finding whether a nuisance has been committed or not is not a broad ranging consideration by the court as to whether the parties have acted reasonably, but whether, in the words of a 19th century judge seeking to establish the parameters of this action,

where what has been done was not the using of land in a common and ordinary way, but in an exceptional manner – not unnatural or unusual, but not the common and ordinary use of land. … The convenience of such a rule may be indicated by calling it a rule of give and take, live and let live. (Bamford v Turnley (1862) 3 B&S 66).

For someone to defend an accusation of causing a nuisance to a neighbour, he must establish that (1) the act must be “necessary” for the common and ordinary use and occupation of the land, and (2) it must be “conveniently” done. It is not enough for a landowner to act reasonably in his own interest: he must also be considerate of the interest of his neighbour. This accords with the “who, in law, is my neighbour” principle which governs the general law of negligence where tortfeasors and victims do not live in proximity.

It is ironic that the test of “sensitivity” still rests on the declaration by another 19th century judge that

 whether something is a nuisance “is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances”, and “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”.

This is quintessentially the problem with property torts: the flat owners in this case are complaining about the alleged nuisance created by the Tate in Bermondsey, an area in the London borough of Southwark which has arguably come up in the world since its unfavourable comparison with Belgrave Square.

That being so, the Court of Appeal scoured the cases considered by the court below, and concluded that “over the hundreds of years that the tort of nuisance has existed, there has never been a reported case in this country in which a court has found that overlooking by a neighbour constituted nuisance [53]. On the contrary, courts have recognised that, subject to planning permission being given, an owner of land may create windows which overlook a neighbour’s property [54-61].

This case catches precisely the interface between the right to privacy, particularly in its 21st century form, and the right to peaceful enjoyment of property in the form of the tort of nuisance. The Court of Appeal held that there are other laws which protect privacy, including the law relating to confidentiality, misuse of private information, (the Data Protection Act 2018), harassment and stalking (Protection Harassment Act 1997) [84]. These are all very well, but none of them are as nuanced as the tort of nuisance, and therefore do not catch a wide range of infringements which subjects one property owner’s life to attrition from his neighbour’s apparently legal activities. In fact, even in a crowded country such as ours, it seems strange that the courts are so readily prepared to block “overlooking” from the tort of nuisance altogether:

the construction or alteration of premises so as to provide the means to overlook neighbouring land, whether or not such overlooking would result in a significant diminution of privacy and be the cause of justified annoyance to the neighbouring owner, is not actionable as a nuisance.

Some might see it as contradictory that a society that is increasingly unforgiving of invasions of personal privacy buried in the social media of the long distant past is so sanguine about their architectural equivalents, and indeed being recorded on social media sites. Just take a look at this judicial statement through 21st century eyes:

In my opinion, the law cannot by an injunction in effect erect fences which the plaintiff is not prepared to provide. The defendant does no wrong to the plaintiff by looking at what takes place on the plaintiff’s land. Further, he does no wrong to the plaintiff by describing to other persons, to as wide an audience as he can obtain, what takes place on the plaintiff’s ground. The court has not been referred to any principle of law which prevents any man from describing anything which he sees anywhere if he does not make defamatory statements, infringe the law as to offensive language, &c., break a contract, or wrongfully reveal confidential information. The defendants did not infringe the law in any of these respects. (Victoria Park Racing, a decision of the High Court of Australia)

What is defamatory, and, even more, what is “offensive”, or “confidential”, are concepts that have intensified in the past ten years and this proliferation shows no sign of abating. To be fair, the Court of Appeal acknowledges that there is a modern day concept of “watching and besetting” with a view to causing the subject to change their behaviour, that may be objectionable, but, without more, it cannot be capable of amounting to a common law nuisance.

It seems to me that the fact that the planners had not taken on board the “overlooking” objection carried too much weight with both the High Court and the Court of Appeal. In fact, the latter admits as such:

It is well known that overlooking is frequently a ground of objection to planning applications: any recognition that the cause of action in nuisance includes overlooking raises the prospect of claims in nuisance when such a planning objection has been rejected.

But where a public body, like a planning authority, has failed to pay attention to an important detail, is it not for the judiciary to hold it to account? Indeed, it is well established that planning permission is not a defence to an action for nuisance. The planners in this case not only granted overlooking permission; they failed to attend to the overlooking problem altogether. There seems to be an internal contradiction here and I wonder whether the flat owners are being given the “Bermondsey” treatment which they may not have endured had they chosen to purchase their properties in Belgrave Square.