Can people in glass houses...have a claim in nuisance?

It is a longstanding legal principle that overlooking in itself will not provide a cause of action in private nuisance claims. This may all be about to change as the Supreme Court will today hear the appeal in the highly publicised Tate Modern case.

In February 2020, the Court of Appeal passed down its judgement in Fearn and Ors v Board of Trustees of the Tate Gallery. The claimants, owners of the floor-to-ceiling glass panelled luxury flats on London’s South Bank, applied for an injunction to prevent visitors to the Tate Modern’s 360-degree viewing platform from being permitted to look directly into their flats. The platform attracts over 600,000 visitors a year and there are limited restrictions on them photographing or filming the claimants’ homes. Between June 2016 and April 2018, Instagram posts of the flats taken from the viewing platform attracted over 38,000 views.

The claimants argued that the platform was both a nuisance and also infringed their right to privacy under Article 8 of the Human Rights Act 1998. In an attempt to remedy this, the Tate Modern instructed security guards to stop visitors taking photos and also closed a portion of the viewing platform in the evenings. The claimants still brought their suit to permanently close sections of the platform. The claim and subsequent appeal were dismissed by both the High Court and Court of Appeal. The Court of Appeal found that there were “remedial steps” the owners would have been expected to take in order to protect their privacy including lowering the solar blinds or using taller plants. Of particular note, the Court observed that “even in modern times the law does not always provide a remedy for every annoyance to a neighbour, however considerable that annoyance may be”.

The Court was not prepared to extend the law of nuisance in this instance and stated that the overlooking of the apartments could not constitute a nuisance as the law did not protect privacy rights in this way. It was also held that there had been no previous instance where Article 8 was breached in a case involving overlooking by a neighbour and there was no reason for this principle to be extended.

In what could be a landmark ruling, it will be extremely interesting to see the Supreme Court’s take on this case and whether they choose to uphold previous decisions or grant the appellants a legal right to safeguard against a perceived invasion of privacy in their homes.