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Nov 13, 2023

Tate Modern viewing platform invades privacy of flats, supreme court rules

Court finds owners of apartments opposite London gallery face unacceptable level

Court finds owners of apartments opposite London gallery face unacceptable level of intrusion

The owners of luxury flats opposite Tate Modern's viewing gallery face an unacceptable level of intrusion that prevents them enjoying their homes, the supreme court has ruled.

In a majority judgment, the court determined that the flat owners faced a "constant visual intrusion" that interfered with the "ordinary use and enjoyment" of their properties, extending the law of privacy to include overlooking – albeit only in extreme cases.

Noting that some visitors to Tate Modern's viewing gallery, which is currently closed, photograph the interiors and post the images on social media, Lord Leggatt said: "It is not difficult to imagine how oppressive living in such circumstances would feel for any ordinary person – much like being on display in a zoo."

The case involves five owners of four flats in the Neo Bankside development on the South Bank in London taking action against the Tate over the estimated 500,000 visitors a year looking into their homes from the viewing platform 34 metres away. The platform, which opened in 2016, provides a panorama of the city as well as a direct view into their glass-fronted flats. The platform opened to the public in 2016, four years after the flats were completed.

The supreme court decision had been anticipated as potentially enshrining tenants’ rights to privacy and potentially opening the floodgates to thousands of neighbour disputes.

However, Leggatt was clear in his opinion that this was a specific case, as the Tate's decision to open a viewing gallery was "a very particular and exceptional use of land", and did not mean that residents could complain of nuisance because neighbours could see inside their buildings.

The judgment does not contain a remedy, and this was deferred to the high court, suggesting it may involve either an injunction or damages paid to the owners.

Leggatt's ruling was supported by Lord Reed and Lord Lloyd-Jones, while a dissenting judgment was given by Lord Sales, with whom Lord Kitchin agreed. All of the judges disagreed with an earlier appeal court ruling that visual intrusion did not fall under the scope of the law of nuisance, but they were split on the appropriateness of the Tate's use of its land.

Sales agreed that it was possible for visual intrusion to be considered a private nuisance, but suggested that although the viewing platform was not an "ordinary" use of the Tate's land, it was reasonable. Citing "the principle of reasonable reciprocity and compromise, or "give and take", he noted that the flat owners could "take normal screening measures", such as putting up curtains.

Leggatt said that asking the residents to put up curtains "wrongly places the responsibility to avoid the consequences of nuisance on the victim", noting that judges would not ask someone to wear earplugs to block out excessive noise.

He also disagreed with the idea that the properties’ glass walls meant the claimants were "responsible for their own misfortune".

The case has been running since 2017, when the owners of the flats applied for an injunction requiring the gallery to cordon off parts of the platform or erect screening to prevent what they said was a "relentless" invasion of their privacy. Judges in two courts ruled against the flat owners for differing reasons.

The case was subsequently taken up by the supreme court, a move considered by legal experts to indicate that it was considered a matter of public interest.

There were two main legal questions: whether "overlooking" constitutes a private nuisance, and whether the viewing gallery was a reasonable use of the Tate's land, given that it was in an art gallery.

Leggatt ruled against the earlier court of appeal decision, determining that this was a "straightforward case of nuisance". He acknowledged that the courts may have been influenced by what they perceived to be the public interest, and that there may have been "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".

In an initial high court ruling in 2019, Justice Mann accepted the argument that overlooking theoretically fell within the scope of existing legal protections against neighbourly intrusion into the home, the tort of nuisance, but argued that the glass-walled design of the flats and their location in central London came "at a price in terms of privacy".

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The flat owners subsequently appealed, and in 2020 the court of appeal ruled that overlooking could never be considered a private nuisance, though it argued that if it could then it would apply in this instance.

Natasha Rees, a partner at Forsters LLP and the lead lawyer advising the flat owners, said her clients were "pleased and relieved" that Leggatt had recognised how "oppressive" the viewing platform had been, and that they would work with the Tate to "find a practical solution which protects all of their interests".

James Souter, a partner at Charles Russell Speechlys, said the judgment was "a landmark moment extending the law of nuisance to protect against visual intrusion". He said the 3-2 split between judges showed "how finely balanced the case was even to the very end".

"Looking ahead, it will be interesting to see whether this case triggers more property owners to make similar claims where they feel they are being overlooked. However, the supreme court has made it clear that the circumstances where the new law will be applied will be rare but did highlight issues around CCTV and sharing of images from cameraphones on social media," Souter said.

Other lawyers pointed out that the case could influence developers and others. Adam Gross, a partner at Fladgate, said that commercial property developers – for example, those building offices, retail units and hotels – may need to chose "designs that lower the risk of visual intrusion into a neighbour's building, and owners of these assets may need to look for alternative ways of using premium top-floor space".

Richard Cressall, a partner at the law firm Gordons and an expert in property disputes, said the ruling was "an extremely unexpected result" but he doubted there would be many cases like this one.

Donal Nolan, professor of private law at the University of Oxford, said the ruling was "a historic decision in that it is the first time that English law has recognised that a visual intrusion from neighbouring land can amount to the tort of private nuisance (and hence a violation of property rights)". He said the impact on residents and developers would "depend on how broadly or narrowly other courts interpret the decision".

A spokesperson for the Tate thanked the supreme court for its "careful consideration" and declined to comment further.

This article was updated on 3 February 2023 to include a direct quote from Adam Gross, replacing the paraphrasing used in an earlier version.