Giles Duncan Fearn v The Board of Trustees of the Tate Gallery

JurisdictionEngland & Wales
JudgeMr Justice Mann
Judgment Date12 February 2019
Neutral Citation[2019] EWHC 246 (Ch)
Docket NumberCase No: HC-2017-000486
CourtChancery Division
Date12 February 2019
Between:
(1) Giles Duncan Fearn
(2) Gerald Kraftman
(3) Ian McFadyen
(4) Helen Claire McFadyen
(5) Lindsay Urquhart
Claimants
and
The Board of Trustees of the Tate Gallery
Defendant

[2019] EWHC 246 (Ch)

Before:

Mr Justice Mann

Case No: HC-2017-000486

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY

COURTS OF ENGLAND AND WALES

PROPERTY, TRUSTS AND PROBATE LIST (ChD)

Royal Courts of Justice, Rolls Building

Fetter Lane, London, EC4A 1NL

Mr Tom Weekes QC and Richard Moules (instructed by Forsters LLP) for the Claimants

Mr Guy Fetherstonhaugh QC, Ms Aileen McColgan and Ms Elizabeth Fitzgerald (instructed by Herbert Smith Freehills LLP) for the Defendant

Hearing dates: 2 nd, 5 th, 6 th, 7 th and 12 th November 2019

APPROVED JUDGMENT

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Mann Mr Justice Mann

Introduction

1

This is a case bought in nuisance and under the Human Rights Act 1998 to protect what are said to be rights of privacy (putting it loosely) in flats in central London. The flats in question are in a development called Neo Bankside on the south side of the River Thames adjacent to the Tate Modern museum, which is housed in the old Bankside power station. Their living areas are extensively glassed and they look directly on to a new extension of the Tate Modern (the Blavatnik Building). Around the 10th floor of that extension there is a walkway around which visitors to the Tate Modern can enjoy a 360 degree panoramic view of London. Unfortunately for the residents of the relevant flats in Neo Bankside (certain of the residents of Block C) that panoramic view includes the living areas of their flat interiors (to varying degrees, depending on their height within the block). The claimants own four flats in the block and say that this amounts to an actionable invasion of their privacy rights. The flats are numbered 1301, 1801, 1901 and 2101, the first two digits connoting the floors on which they are situated. They bring this action for an injunction requiring Tate Modern to close part of the gallery which gives the views into their respective flats, though screening is proposed as an alternative. Their privacy rights are said to arise via the law of nuisance (as it needs to be developed taking into account the Human Rights Act 1998) and/or under section 6 of that Act on the footing that the Tate Gallery is a “hybrid” public authority against who the Act can be directly enforced.

2

Mr Tom Weekes QC led for the claimants; Mr Guy Fetherstonhaugh QC led for the defendant.

The nature and physical layout of the two properties

3

The Tate Modern is part of the Tate Gallery. It is housed in a former power station (with its retained chimney) and itself houses much of the nation's modern artworks and has permanent and temporary exhibitions. Its position appears edged in red on plan A annexed to this judgment. The plan is for purposes of general indication of position only.

4

There are four blocks of flats in the Neo Bankside development. They are shown edged in green on plan A. The closest to the Blavatnik Building is Block C, in which the present claimants reside. The Blavatnik Building is shown edged in blue. Between the two is a public highway, Holland Street. The Blavatnik Building is a sort of twisted pyramid, so it tapers upwards, and is truncated at the top so it does not quite rise to a peak. The distance between the allegedly offending viewing gallery at the top of the building and the 18th floor flat in Block C (which is one of the closest) was agreed to be just over 34m. The distance will be about the same for flat 1901, a little more for flat 2101 (because it is a little higher) and a little greater again in respect of flat 1301 (which is farther down). Those differences are not particularly material to this case, though the angles may be.

5

Construction of the Blavatnik Building was completed by 2016, in which year the Building and the viewing gallery was also opened. The Building is part of the Tate Modern museum (a section below deals with the nature and status of the museum), and access to the viewing gallery is free. The viewing gallery runs right round the outside of the Blavatnik Building at the 10th (top) floor level. Access is gained via lifts to the 10th floor, which give on to a glassed area facing north, west and east, and one passes from the glassed area on to the outside gallery which is several feet wide. There are safety railings at about chest-height round the gallery, and the only thing that obstructs the view is periodic support pillars for the structure above. To the north the view is interrupted only by the Tate Modern's old chimney; to the east it is largely uninterrupted; to the west it is interrupted (at some distance) by some taller buildings and in part by a lower Neo Bankside building and to the south by Block C. To each side of Block C there is a view of part of south London, and parts of Westminster. Such a panoramic view of London is rather splendid (particularly over the Thames) and members of the public will find it very attractive, though differing views were expressed in the case about the merits of the view of south London.

6

A sample floor plan of the flats in Block C is shown on Plan B annexed to this judgment. Details vary from flat to flat, but the general layout as between the winter gardens and daytime living accommodation on the one hand and bedrooms/studies/bathrooms on the other is the same throughout. There are 21 flats plus a penthouse, with two flats on each of the floors with which this action is concerned, each with a triangular end piece. The flats which are the subject of this action are those whose triangular parts are nearer the Blavatnik Building; there are four of them — on the 13th, 18th, 19th and 21st floors respectively. The flats can be considered to have two elements — the triangular parts to which I have referred, known as the winter gardens, and the rest of the living accommodation. The winter gardens have wall to ceiling windows bounding their sides and on one side they are roughly parallel to the Blavatnik Building. Those windows are single-glazed, with one opening pane, and each winter garden is separated from the rest of the flat by double-glazed glass doors. The rest of the flat windows are also double-glazed. The single glazing in the winter gardens apparently derives from the fact that they were conceived as sort of indoor balconies, providing something of a quasi-outdoor amenity for the flats. They were not conceived by the developers as part of the living accommodation. However, in the case of all the flats with which this action is concerned (and all the other flats on the same side of the building) the winter gardens have been incorporated so as to become part of the living accommodation. The flooring is heated in the same way as the rest of the flat, and the flooring itself is apparently of the same construction too, though there is a lip between the winter gardens and the rest of the accommodation.

7

The other “sides” of the flats, giving on to the living accommodation (kitchen, dining and sitting areas), are made up of floor to ceiling glass panels with some alternating wooden fascias, positioned at different horizontal points in the various flats so they are not lined up throughout the building. Those fascias prevent a complete view into the dining and sitting areas within the flat, but do not provide much obstruction. The adjacent bedrooms do not have wall to ceiling glass; they have more conventional window-type apertures, and this action is not concerned with them. The building itself has an exo-skeleton of steel, and is of a striking (Rogers Stirk Harbour + Partners) design.

8

The same design obtains on both sides of the flats — that is to say, both on the side giving on to the Blavatnik Building and on the other side. The overall effect is of a largely glass-walled flat with impressive views from inside, which views are why most of the claimants bought them in the first place. Unfortunately, if occupants can see out then outsiders can see in (absent some protective measure), which is the problem in this case. Unless a barrier to sight is put in place, visitors can see straight into the living accommodation of the flats (or some of it — most of it in the 18th and 19th floor flats, less so in the 21st floor and less again in the case of the 13th). That is what gives rise to this action. The claimants say that they are the subject of close scrutiny by many of the viewers in the viewing gallery (in some cases by binoculars), and of photography, which they find completely oppressive. The flats all have solar blinds which would obscure views of the interior (though not very effectively at night when lights are on inside the flats) but to keep those down would obscure the views which the occupants consider to be one of the key advantages to the flats, and would involve their living without the benefits of windows along one complete side of their living accommodation.

9

After the case had been partially opened I had the opportunity to have a view of the site, both from the Tate Modern side and from (and in) each of the claimants' four flats.

Claimants' Witnesses

10

I heard evidence from the following claimants, and in one case a claimant's son. In order to avoid my saying it separately in relation to each of the claimants, I can say now that they were all honest witnesses who gave evidence of their subjective experiences in a sincere manner and without intended exaggeration. They all speak of their subjective discomfort and they are not making it up. The only parts of their evidence which require particular care in my consideration are those parts in which they give evidence of the extent to which they...

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3 cases
  • David Paul Scott v LGBT Foundation Ltd
    • United Kingdom
    • Queen's Bench Division
    • 3 March 2020
    ...authorities on the question of hybrid public authorities were summarised by Mann J in Fearn v Tate Gallery Board of Trustees [2019] EWHC 246 (Ch), [2019] 2 WLR 1335 at §§108–120. Mann J's thorough discussion includes consideration of the leading authorities of Aston Cantlow and Wilmcote w......
  • Fearn and Others v Board of Trustees of the Tate Gallery
    • United Kingdom
    • Supreme Court
    • 1 February 2023
    ...of how the claimants seek to conduct their lives in the flats. One can see them from practically every angle on the southern walkway”: [2019] Ch 369, para 3 The viewing gallery opens when the museum opens at 10am every day of the week. When it first opened in 2016, the viewing gallery close......
  • Fearn and Others v Board of the Trustees of the Tate Gallery
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 1 January 2020
1 firm's commentaries
  • Q&A: Neighbours, Noise And Nuisance
    • United Kingdom
    • Mondaq UK
    • 3 July 2019
    ...decided that the right not to be overlooked is not a facet of ownership of property. Fearn and others v Trustees of the Tate Gallery [2019] EWHC 246 (Ch); [2019] PLSCS 34 determined that the law of nuisance is capable, in principle, of protecting privacy rights, but such a claim would only ......

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