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Supreme Court backs Tate's neighbours in privacy battle

1 Feb 23 Developers and builders of tall buildings in urban areas have been warned to take heed of a potentially landmark Supreme Court judgment handed down today.

Stock image [John Towner/StockSnap] of a viewing platform in London, not the Tate Modern
Stock image [John Towner/StockSnap] of a viewing platform in London, not the Tate Modern

Residents of the Neo Bankside block of flats neighbouring the Tate Modern art gallery in London have secured a victory in their bid to have the Tate’s viewing gallery closed. Whether the viewing gallery actually closes permanently, however, remains to be seen as legal wheels continue to turn.

At issue is the right to privacy in one’s own home – not to be snooped upon and gawped at by hordes of tourist – or whether it is reasonable to expect homeowners to just put up net curtains.

The Tate Modern opened an extension in 2016 called the Blavatnik Building. The Blavatnik building is 10 stories high and on its top floor has a viewing platform offering views of London. The appellants in this case own flats in Neo Bankside, neighbouring the Tate Modern, which are of a similar elevation to the Blavatnik building and whose walls are mainly made of glass. On the southside of the viewing platform, visitors to the Tate can see directly into the flats of the appellants.

The flat owners seek an injunction requiring the Tate to prevent its visitors from looking into their homes from the viewing platform, or alternatively, an award of damages. Their claim is based on the common law of nuisance.

The original trial judge recognised that a large number of visitors to the Tate’s viewing gallery display an interest in the interiors of the claimants’ flats, even posting photos of the interiors on social media. But the judge found that this intrusion did not amount to a nuisance as they could just lower their blinds or put up net curtains.

On appeal, the Court of Appeal found that the first judge’s reasoning involved material errors of law and that, if the principles of common law nuisance are correctly applied to the facts of the case, the claim should succeed. Nevertheless, the appeal was dismissed on the ground that “overlooking” cannot count in law as a nuisance.

Twice defeated, the residents appealed to the Supreme Court, the highest in the land, which has today upheld their case.

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The Supreme Court judgment, written by Lord Leggatt, states: “In my opinion, the Court of Appeal was right to hold that the judge incorrectly applied the law but wrong to decide that the law of nuisance does not cover a case of this kind. On the facts found by the judge, this is a straightforward case of nuisance.

“I suspect that what lies behind the rejection of the claim by the courts below is a reluctance to decide that the private rights of a few wealthy property owners should prevent the general public from enjoying an unrestricted view of London and a major national museum from providing public access to such a view. To the extent that this is a relevant consideration, however, its relevance is to the question of remedy and whether or not it is appropriate to prohibit the defendant’s activity by granting an injunction: it cannot justify permitting the defendant to infringe the claimants’ rights without compensation.”

However, he went on to say: “Property owners in this part of London have to expect to be overlooked to a significant degree and the risk of people being able to look through their windows from neighbouring properties is an inevitable part of community life in the area. It is normal to expect people to use curtains, blinds and other screening measures to limit the annoyance which that might cause.”

Commenting on the judgment Claire Lamkin, partner in the real estate team at law firm Kingsley Napley, said: “The Supreme Court has decided that residents of a glass block of flats have been subjected to intense visual intrusion by the use of the Tate Modern’s viewing platform by its visitors. The court found that although neighbours are expected to adopt a ‘give and take’ approach and to take adequate measures to alleviate issues between them, the Tate’s use of its viewing gallery did not constitute a reasonable use of its land for the local area.

“Whilst today’s decision is a victory for the claimant flat owners and is important in terms of clarifying nuisance and privacy under the law, the judges emphasised the rare circumstances in this case. The likelihood of all nuisance cases succeeding in future remains slim. However, it will no doubt precipitate a wave of copycat cases where people feel a property development near them is highly intrusive. And to that extent builders, architects, developers, town planners and policy makers will need to check their plans carefully from now on to minimise the risk of future similar litigation.

“In the meantime, the Supreme Court has remitted the case back to the High Court to determine whether the residents are entitled to an injunction to prevent the viewing platform from being used.”

Jessica Dick, associate at Tunbridge Wells law firm Cripps, said: “Whilst today’s judgment won’t open the floodgates to cases around visual intrusion, we might see a trickle of similar cases. The Supreme Court’s decision has provided clarity over how visual intrusion can be a claim in private nuisance, and confirms that just because a use of land is reasonable doesn’t mean it is the ordinary use of that particular land. Today’s decision is likely to make developers, especially those working in cities like London, think more carefully about adding features like balconies and roof gardens on non-residential buildings, like office blocks, in case they overlook nearby residents.”

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