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Question: Is an invasion of privacy a legal nuisance?

Answer: Those who live in glass houses should not throw stones (or complain about prying neighbours)

The recent case of Fearn & Others v The Board of Trustees of the Tate Gallery [2019], concerned a dispute between the Tate Modern and its residential neighbours over the Tate’s public viewing platform. The case makes clear that an invasion of privacy can (although not in this case) amount to an actionable legal nuisance.

The dispute

In central London, where many live cheek by jowl, privacy is a scarce commodity. Residential areas are increasingly seeing high-rise blocks, with mainly glass exteriors, nestled in close proximity.

The complainants in this case had bought their flats, which neighboured the Tate Modern on London’s South Bank, in or around 2013. At the same time, the Tate Modern was constructing its extension which included a large viewing gallery with spectacular views of London. For some residents, the viewing gallery also provided a view of their living rooms and “winter gardens“. This resulted in visitors to the Tate Modern staring at the residents, sometimes through binoculars, taking photographs and (allegedly) making obscene hand gestures.

Eventually, some of the residents decided to seek an injunction against the Tate Modern requiring the Tate Modern to prevent members of the public invading their privacy by “observing” them from the viewing platform.

The arguments

The residents sought to argue that:

  1. they had a right to privacy under the Human Rights Act 1998; and/or
  2. the invasion of privacy that they were suffering amounted to a legal nuisance.

There were a number of hurdles that the residents needed to overcome in order to make out their Human Rights Act privacy claim, the first of which was that the Tate Modern was a quasi public body. Unfortunately for them, this claim failed because the judge concluded that the Tate Modern was not exercising “functions of a public nature“, which left the residents with the nuisance claim.

What is legal nuisance?

A legal nuisance is usually caused by someone doing something on his land which becomes a nuisance to a neighbouring land owner. The neighbouring land owner will, as a result, have a claim in nuisance.

It is established case law that interference with a neighbour’s quiet enjoyment of its land can amount to an actionable nuisance. The question here, was whether an invasion of privacy could amount to an interference with the residents’ quiet enjoyment of their properties.

The decision

The judge in the case acknowledged that “the law of nuisance ought to be, and is capable of, protecting privacy rights from overlooking in an appropriate case“. However, what is important in each case is “whether, and to what extent, there is a legitimate expectation of privacy“.

In reality, the residents had bought flats in central London with floor to ceiling windows. In deciding that there was no actionable nuisance on the facts the judge considered it relevant that:

  • the occupiers of these flats “can expect rather less privacy than perhaps a rural occupier might“, given the position of the flats next to the Tate Modern in central London; and
  • the fact that the building design including floor to ceiling glass walls meant the residents had submitted themselves to a “self-induced exposure to the outside world“.

These factors, in the judge’s opinion meant that it would be “wrong…to create liability in nuisance“.

The judge also took into account that the residents could easily take certain remedial steps to minimise the invasion of privacy, considering that they could “install net curtains“.

Although an unwelcome outcome for these residents, many city developers and building owners will welcome this decision. In particular, it is “vanishingly unlikely” (according to Guy Fetherstonhaugh QC, who together with Aileen McColgan and Elizabeth Fitzgerald acted for Tate Modern) “that the cause of action in this case could be applied in the case of “ordinary” overlooking of the sort that might arise between neighbours. The whole point in this case was that the Viewing Platform was expressly designed to provide a view – something that could not be said of a normal residential or office block.

The residents are considering appealing, so this may not be the last we have heard on this matter.

Case reference: Fearn & Others v The Board of Trustees of the Tate Gallery [2019] EWHC 246 (Ch)