The claimant owners of glass walled apartments complained that the erection of a new walkway by the defendant which gave members of the public views into the claimants’ living spaces was a nuisance and an infringement of their human rights to privacy and otherwise.
Held: The claimants had failed to establish either nuisance or an infringement of their human rights.
On the direct claim in privacy under section 6 of the HRA 1998 and Article 8 of the Convention, the Judge concluded that the Tate does not have, or in this case was not exercising, functions of a public nature within the HRA 1998. Accordingly, the direct privacy claim failed, and the Judge said that he did not have to consider how Article 8 would have operated had the Tate been a public authority.
If there was a nuisance, it would have to be the kind of nuisance caused by interference with a neighbour’s quiet enjoyment of their land, and the first issue was whether that type of nuisance is capable of including invasion of privacy. Had it been necessary to do so, he would have concluded that the tort of nuisance, absent statute, would probably have been capable, as a matter of principle, of protecting privacy rights, at least in a domestic home. If there were any doubt about that, then that doubt had been removed by the HRA 1998 and Article 8 of the Convention; and that, if it did not do so before the HRA 1998, since that Act the law of nuisance ought to be, and is, capable of protecting privacy rights from overlooking in an appropriate case.
The locality was a part of urban South London used for a mixture of residential, cultural, tourist and commercial purposes but the significant factor was that it is an inner city urban environment, with a significant amount of tourist activity. An occupier in that environment can expect rather less privacy than perhaps a rural occupier might, and that anyone who lives in an inner city can expect to live quite cheek by jowl with neighbours.
There was nothing unreasonable about the use of the Tate’s land per se, in its context. He took into account the restrictions imposed by the Tate on the use of the viewing gallery both in respect of times for viewing and the other steps mentioned above.
By incorporating the winter gardens into the living accommodation, the owners and occupiers of the flats had created their own additional sensitivity to the inward gaze, and the claimants were, therefore, occupying a particularly sensitive property which they were operating in a way which had increased the sensitivity. There was a parallel with nuisance cases in which the claim had failed because the claimant’s user which had been adversely affected by the claimant’s activity was a particularly sensitive one and that an ordinary use would not have been adversely affected.
The claimants might have taken several steps to mitigate the intrusion.
Mann J
[2019] EWHC 246 (Ch), [2019] 2 WLR 1335, [2019] WLR(D) 91, [2019] Ch 369
Bailii, WLRD
England and Wales
Cited by:
Cited – Scott v LGBT Foundation Ltd QBD 3-Mar-2020
Disclosure of risk of self harm made no claim
The claimant complained that the respondent support group had disclosed to his doctor that fact that they had assessed him as being at significant risk of suicide or other substantial self-harm, and that it was at that time unable to provide Mr . .
Appeal from – Fearn and Others v The Board of Trustees of The Tate Gallery CA 12-Feb-2020
The claimants asserted that the construction of the Tate Modern Gallery allowed its visitors . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.633424
