The Court of Appeal (COA) has handed down judgment in the widely publicised case of Fearn and others v. The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104. Dismissing the appeal, the court has provided a useful judgment which addresses the modern scope of private nuisance and its relationship with the Human Rights Act 1998. 

Background

Between 2006 and 2012, four blocks of flats known as Neo Bankside were constructed along the south bank of the River Thames. Adjacent to Neo Bankside is the Blavatnik Building, a recent extension of the Tate Modern constructed in 2016. The top floor of the Blavatnik Building contains a viewing gallery around all four sides which allows the visiting public to enjoy a 360-degree panoramic view of central London. 

The appellants in this case were the owners of four flats in Neo Bankside whose demise partly comprises floor-to-ceiling glass panels which run roughly parallel to the Blavatnik Building. The appellants' case was that the viewing gallery in the Blavatnik Building allowed visitors to see directly into their flats and, among other things, take pictures of the flats and their occupants. This, they claimed, was an unreasonable interference with the enjoyment of their flats. 

The flat-owners sought an injunction to prevent part of the viewing gallery being used on the grounds that the viewing gallery amounted to an actionable nuisance. They also claimed the Tate, as a public authority, had breached their Article 8 rights to privacy by allowing visitors to use that part of the viewing gallery. 

At first instance, the High Court held that the Human Rights Act, as well as a lack of judicial authority to the contrary, supported the position that the tort of nuisance could protect against privacy in some situations. However, on the facts, no nuisance had occurred. The judge also confirmed the respondent was not a public authority for the purposes of Article 8. 

The flat-owners appealed to the COA.

Decision

The COA upheld the High Court's overall decision, but concluded the judge had reached it for the wrong reasons and had made a number of incorrect findings on the law. 

Nuisance

The COA held the overwhelming weight of judicial authority confirmed that mere overlooking was insufficient to give rise to a cause of action in private nuisance. The COA held this was unsurprising as properties overlooking each other have been a common experience for landowners since the first cities were constructed in medieval times. This experience has only become more pronounced in modern times and a change in the law would effectively prevent any meaningful development taking place (especially in city centres). 

The COA further held it was inappropriate to extend the tort of nuisance to include overlooking as:

• the case of Hunter v. Canary Wharf¹ illustrated that the law does not provide a remedy for every annoyance suffered by a neighbour (regardless of how significant); 
• it would be difficult to assess objectively whether overlooking amounted to a material interference with the enjoyment of any affected property. While the present case was an extreme example (due to the number of people using the viewing gallery), the law would have to provide guidance for overlooking on a significantly smaller scale (for example, whether one landowner constructing a balcony which overlooked a neighbour's garden would amount to a nuisance); 
• in general, a complaint concerning overlooking amounts to an argument about invasion of privacy (which is a personal interest) rather than a nuisance (which concerns interests in property); and
• it was important to recognise that there are other avenues for neighbouring landowners to protect themselves from overlooking, in particular by engaging with the planning process. 

Taking these factors into account, the COA held it was preferable to let Parliament, rather than the courts, decide whether to introduce new laws to deal with complaints relating to overlooking. 

Article 8 

The COA disagreed with the High Court's finding that the Human Rights Act was relevant to the tort of nuisance. The court held that, if it were, it would significantly distort the law of nuisance in important respects. For example, a claim under Article 8 allows a claimant to rely on their particular sensitivities, whereas the tort of nuisance disregards these when applying an objective approach to whether or not a use of land is reasonable².

The COA held that, even if it were wrong on this point, it was notable that the European Court of Human Rights had never held that mere overlooking by a neighbour amounted to a breach of Article 8.

Commentary

In brief, the COA's decision is a welcome return to the status quo for the law of nuisance and a firm rejection of the idea that the Human Rights Act should readily develop a tort relating to property.

While the first instance decision reached the correct conclusion, the findings of the judge could, if upheld, have had a substantial impact on the ability to develop property in heavily populated areas such as cities and large towns. The added burden imposed by that decision would no doubt have stifled developments which have been historically acceptable in England and Wales for centuries.

In a world where overlooking could give rise to a nuisance, it would be likely that developers would potentially have to pay compensation to adjoining owners to avoid threats of an injunction. This would, of course, be on top of other proprietary issues such as rights of light and restrictive covenants which also give rise to compensation.

It is unclear whether the flat-owners have appealed to the Supreme Court (rumours suggest they have, so watch this space).

1. This case concerned hundreds of claimants alleging the defendant had, by constructing One Canada Square, caused a nuisance by impairing their television signal. ↩
2. For example, in Robinson v. Kilvert (1889) 41 Ch D 88 the defendant's use of its factory was not a nuisance as it would not have damaged ordinary paper, but did damage unusually sensitive paper stored by their neighbour. ↩