Private nuisance claims: Whether ‘overlooking’ a property can be classed as a private nuisance (Fearn & Others v Board of the Trustees of the Tate Gallery – 2020)

Where members of the public are able to see inside adjacent private residential properties, does a cause of action in private nuisance exist in favour of the residents?

The background

In Fearn & Others v Board of the Trustees of the Tate Gallery [2020], a block of four apartments called ‘Neo Bankside’ was situated adjacent to the ‘Tate Modern’ art gallery in London. An exterior walkway around part of the gallery was accessed and used by members of the public as a viewing platform.

Owners of the Neo Bankside flats objected to this, complaining that gallery visitors using the walkway could see into their flats and observe them occupying their residences, including some claims that visitors were using binoculars, phones and cameras with zoom lenses. The owners’ claims were for private nuisance caused by ‘overlooking’, breach of s.6 of the Human Rights Act 1998 and breach of Article 8 of the European Convention on Human Rights, and they sought an injunction for that part of the gallery to be closed.

The decision

The High Court found that there was no substance in the owners’ claims, either for breaches of human rights legislation or for private nuisance, and dismissed their appeal. The judgment confirmed that, although private nuisance may protect the privacy of one land owner against another, in this case ‘mere overlooking’ did not give rise to a cause of action in private nuisance.

Supported by earlier case law, it is difficult for a Court to determine whether overlooking caused a material interference with the amenity value of the affected property, and the Court could find no reason to extend the law of private nuisance in this case to class overlooking as an ‘invasion of privacy’.

Further, the Tate Gallery was not a public authority and therefore a claim brought under the Human Rights Act and Article 8 in respect of ‘a right to respect for one’s private and family life, his home and his correspondence’ could not succeed.

Advice and action 

With many residential blocks now situated in densely-populated areas close to other buildings, this case provides reassurance to developers and landlords that ‘overlooking’ will not of its own accord support a claim for private nuisance.

Provided that the appropriate planning permissions are obtained, merely overlooking an adjoining property, whether private or publicly-accessed, will not be classed as an interference with human rights or the privacy of those occupying adjacent buildings. We will continue to watch this case in the event that a further appeal is brought in the Supreme Court.