A room with a (Tate Modern) view? The development implications of the Court of Appeal decision in Fearn and others v Board of the Trustees of the Tate Gallery  EWCA Civ 104
The Court of Appeal has re-imposed the orthodox view that a landowner does not have a freestanding ‘right to privacy’ that by itself can be enforced through the common law tort of private nuisance. Although the decision of Mann J at first instance ( EWHC 246 (Ch);  Ch 369) refusing the claims of overlooked flat owners for an injunction preventing members of the public from viewing their properties from the viewing gallery at the Tate Modern was upheld, the basis for this outcome was radically recast. In so doing, the Court of Appeal (comprised of Sir Terence Etherton MR, Lewison and Rose LJJ) refused to extend the tort of nuisance, instead emphasising the centrality of planning laws and control in this area.
The claimants own four flats in a striking modern development in central London called Neo Bankside. Their building is adjacent to the Tate Modern museum, housed in the old Bankside power station. The flats are overlooked by a new extension of the Tate Modern known as the Blavatnik Building. This extension boasts a viewing gallery with a 360-degree view of London. Visitors to the viewing gallery are able to see directly into the living accommodation of the claimants’ flats. As Mann J recorded in the first instance decision, visitors to the viewing gallery frequently look into their flats and take photographs, often posting them on social media.
The claimants brought a claim for an injunction requiring the Tate Modern to close or screen the part of the gallery which gives these views into their flats. The claimants relied on a direct claim under section 6 of the Human Rights Act 1998 and article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as a claim in private nuisance. Mann J rejected the claimants’ claims at first instance. He held at - that the operation of the viewing gallery was not, by itself, a function of a public nature, dismissing the Article 8 argument at the first stage. He then held that, in an appropriate case, the law of nuisance was capable of operating so as to protect the privacy of a home as against another landowner (at ). This was not, however, such a case, given the reasonableness of the use of the defendants’ land and the measures that the claimants could take (with the media, in particular, focussing on ‘closing their blinds’, while Jonathan Morgan commented that “Perhaps people who live in glass houses shouldn’t stow thrones”: (2019) Cambridge Law Journal, 78(2), 273-276).
The decision of the Court of Appeal
The Court of Appeal was anxious to deal with the question of whether there was a cause of action in private nuisance for overlooking. The respondents to the appeal (namely, the board of trustees of the Tate Modern), initially did not file a respondent’s notice on this point, but at the Court of Appeal’s request additional submissions were provided by both sides and the respondents were given permission to file a notice raising these issues.
In the House of Lords decision in Hunter v Canary Wharf  AC 655, Lord Lloyd stated at p695C that nuisances are of three kinds: (1) nuisance by encroachment on a neighbour’s land; (2) nuisance by direct physical injury to a neighbour’s land; (3) nuisance by interference with a neighbour’s quiet enjoyment of his land. Overlooking would have to fall within the third category, an area that was not dealt with at length in the recent Japanese knotweed case of Williams v Network Rail Infrastructure Ltd  EWCA Civ 1514;  QB 601. Once a claimant had established a material interference with the amenity of their land, the court would then consider the ingredients for a defence for causing such a nuisance, namely (1) the act must be ‘necessary’ for the common and ordinary use and occupation of the land; and (2) it must be ‘conveniently’ done (, citing Bamford v Turnley (1862) 3 B&S 66, at 83 per Bramwell B; approved and applied in Cambridge Water Co v Eastern Counties Leather plc  2 AC 264 at 299). It is by this standard that ‘reasonable user’ should be assessed: Barr v Biffa Waste Services Ltd  EWCA Civ 312,  QB 455 at - per Carnwarth LJ.
The Court of Appeal disagreed with the Judge that ‘overlooking’, by itself, could form the basis for a cause of action for private nuisance at common law. A number of cases where such a cause of action were rejected were cited, such as the House of Lords decision in Tapling v Jones (1865) 20 CBNS 166. It was considered noteworthy, at , that an action does lie for ‘watching and besetting’, that is, to watch or beset a person’s house with a view to compelling them to do or not to do what is lawful for them not to do or to do: J Lyons & Sons v Wilkins  1 Ch 255. The “overwhelming weight” of judicial authority was against the recognition of overlooking by itself as a form of private nuisance.
Three dimensional perspective on development
The planning history of the Blavatnik Building forms an important backdrop to this litigation. The Court of Appeal noted that, when decided whether to develop the common law by recognising a cause of action for nuisance by overlooking, it was necessary to take into account the role of planning laws and control in protecting owners.
The planning history of Neo Bankside and the Blavatnik Building was explored by Mann J at length. At , he noted that there was no planning document which, in terms, stated that the overlooking was actively considered by the local planning authority at any stage, save for general references. Mann J rejected the Tate Modern’s arguments that the grant of planning permission was strongly relevant to their defence, notwithstanding the citation of promising remarks in Lawrence v Fen Tigers Ltd  AC 822. At , Mann J noted that the planning authority had not considered in detail the question of overlooking.
One of the take away notes that emerges from this dispute is the need to consider land usage and property rights in three-dimensional space, rather than two-dimensionally as traditional plans might well encourage. Many rights of light disputes, for example, hinge on three dimensional interactions. Given the emphasis that the Court of Appeal has placed on the planning process as opposed to a free-standing private law interest to privacy, overlooking disputes are more likely to emerge in that part of the development cycle.
One point the Court of Appeal made was that whereas annoyances such as noise or vibrations (or, for that matter, interference with a right of light) could be objectively tested, a right of privacy would be difficult to assess by reference to an objective test. This does not mean, however, that the parties cannot secure the same outcome by way of contractual rights, provided that they can draft something that can be meaningfully defined and protected. The Court of Appeal in Northern Ireland gave effect to a restrictive covenant prohibiting development over a certain height that would obstruct sea views in Walsh v Lester  NICA 50, while the Court of Appeal in Wakeham v Wood (1982) 43 P&CR 40 granted a mandatory injunction requiring a building to be torn down in breach of a similar restrictive covenant. It is more difficult, however, to draft a covenant protecting privacy as opposed to a right to a view that does not suffer from problems of vagueness or lack of definition.
The Court of Appeal also rejected Mann J’s approach to whether Article 8 could be used to extend the common law. It was noted, at , that “overlaying the common law tort of private nuisance with Article 8 would significantly disturb the tort in some important respects”. For example, the scope of Article 8 is broader, conferring rights on anyone who has a reasonable expectation of privacy, whereas the tort of nuisance is a property tort, requiring claimant to have an interest in the land affected. It was remarked at  that, “if there is a legal lacuna as to remedy, that is best left to the legislature rather than to the courts fashion to fashion.”
Interestingly, the Court of Appeal undermined some of the defences that the Tate Modern had successfully deployed at first instance. Contradicting the remarks made about ‘closing the blinds’, at  it was noted that “There was no suggestion in the present case that the claimants have been and use using their flats otherwise than in a perfectly normal fashion as homes”. The homeowners were not unduly sensitive. As a result, the approach adopted by the Judge at first instance was held at  to be “contrary to the general principles of private nuisance”. These remarks are strictly obiter, but the case itself provides useful guidance on how a defence to private nuisance involving Bamford issues ought to be structured and evidenced or defeated.
Conclusion – curtains on a private law nuisance claim based on overlooking
The thrust of the Court of Appeal’s decision is to push the question of privacy back on to existing statutory rights (such as the Protection from Harassment Act 1997) and the planning process, rather than developing the common law tort of private nuisance. At the same time, this decision does not mean that English law has rejected all claims to privacy. As the judgment records, there are numerous ways in which a right to privacy can be recognised, and parties should not neglect the possibility of requiring developers to enter into restrictive covenants aimed at preventing overlooking when selling land.
17th February 2020