The Court of Appeal in Fearn & Ors v The Tate Gallery [2020] EWCA Civ 104 has given judgment in an eagerly awaited decision concerning residents of a luxury block of flats which are adjacent to a viewing gallery forming part of the Tate Gallery. The case was widely reported back in February 2019 following the High Court’s decision to dismiss the residents’ injunction application seeking to prevent members of the public from being able to look into their flats from the viewing gallery.


The residents (and appellants) were long leaseholders of in a modern development (Neo Bankside) designed by Richard Rodgers and Partners as the firm was then. The design, planning process and construction took place between 2006 and 2012.

Immediately adjacent to Neo Bankside is the Tate Gallery which between 2006 and 2016 obtained planning permission to build an extension known as the Blavatnik Building. This extension including a large viewing gallery.

Estimates suggest the viewing gallery attracts between 500,000 to 600,000 visitors each year with a maximum of 300 visitors at any one time being allowed onto the viewing gallery.

As a result, the residents are subjected to thousands’ of Tate Gallery visitors being able to look directly into their flats each day. The flats have been photographed, some of which have been posted on social media; other visitors have used binoculars and so on.

The designs for the Blavatnik extension have always included a viewing gallery and there was no evidence that the local planning authority ever considered the question of “overlooking” at any stage. By the same token, it would appear that the Neo Bankside developer was aware of the plans for a viewing gallery, but it did not foresee the level of intrusion which resulted. 

High Court

The residents’ claim sought an injunction preventing visitors to the Tate Gallery from observing the flats from certain parts of the viewing gallery. They alleged the viewing gallery interfered with their rights to the enjoyment of their flats so as to amount to a nuisance. Furthermore, this infringement breached their rights under s6 Human Rights Act 1998, namely a right to respect one’s private and family life, home and correspondence.

The Judge dismissed the residents’ claims in a very detailed judgment.

Court of Appeal

The Court dismissed the residents’ appeal but for entirely different reasons to those given by the High Court Judge.

The Court raised two of its own questions which it felt needed to be addressed namely:

  1. whether, contrary to the High Court Judge’s view, there is no cause of action in private nuisance for “overlooking,” which as a matter of policy, should be addressed by planning law and practice, or some other common law or statutory regime; and
  2.  that it wasn’t right, if necessary, to extend the cause of action for private nuisance to “overlooking” in view ofthe Human Rights Act.

Accordingly, the parties were requested by the Court to provide written submissions about thse additional points.

Having undertaken a detailed analysis of case law the Court answered both of the questions in the negative, and the residents’ appeal was dismissed.

The Court felt the heart of the issue in this case was that the residents' claim founded upon a potential an invasion of privacy rather than (as is the case with the tort of nuisance), damage to interests in property. In that regard the Court said that there were other laws which bear on privacy, including the Data Protection Act 2018 and the Protection From Harassment Act 1997.

The Court concluded that it was preferable to leave it to Parliament to formulate any further laws which are perceived to be necessary to deal with overlooking, rather than to extend the law of private nuisance.


Despite the scale of intrusion the residents seem to be left without a remedy, unless they are able to appeal to the Supreme Court.

The Court made reference to Lord Hoffmann’s comments in Hunter v Canary Wharf Ltd [1997] AC 655 in which he suggested that planning laws gave planning authorities the power to grant or refuse permission and, as such, provided a mechanism for control of the unrestricted right to build which can be used for protection of people living in the vicinity of a development. Lord Hoffman clearly felt that the planning system was a more appropriate form of control for both the developer and the public, rather than enlarging rights to bring actions for nuisance at common law.

CONTACT: Christopher Filor
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