Flat owners in the Neo Bankside development next to Tate Modern have won an appeal that could see the gallery having to close or redesign a public walkway around its extension building.
The lawsuit was started back in 2017 when residents of the flats complained that people walking around the outdoor walkway that snakes around the Tate Modern extension building were looking into the flats, and sharing photos on social media.
Their lawsuit against the Tate argued that this was “unreasonably interfering with the claimants’ enjoyment of their flats, so as to be a nuisance,” and seeked to have the walkway closed, or otherwise amended to give them some privacy.
The initial lawsuit was rejected in 2019 when the High Court rejected the application. While the court accepted that the proximity of the two buildings could trigger some of the legal protections against intrusion, this was outweighed by the architect’s decision to fit the flats with floor to ceiling windows, and the flat owners decision to buy the flats knowing that the Tate Modern development was taking place.
A year later, this was upheld by the Court of Appeal, suggesting that the flat owners should buy some curtains for their flats.
The flat owners then took the case to the Supreme Court, and it has now found in favour of the flat owners, and against the Tate Modern. In a narrow victory with three judges siding with the flat owners and two judges for the Tate, the court ruled that the viewing gallery on the Tate Modern does leave the gallery with a liability under common law nuisance.
They’ve sent the case back to the High Court to determine what level of remedy would be appropriate.
In his majority judgment, Lord Leggatt pointedly suggested that the lower courts may have been motivated to find in favour of the Tate Modern due to a “reluctance to decide that the property 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”
Natasha Rees, Senior Partner and lead lawyer advising the Claimants, said “Our clients are both pleased and relieved that nearly six years after they began their claim the Supreme Court has now found in their favour. Lord Leggatt, giving the majority judgment, recognised how oppressive it can be to live “under constant observation from the Tate’s viewing gallery for much of the day, every day of the week…much like being on display in a zoo.”
The full judgement is here.
You can have some sympathy with the flat owners, who brought homes with windows facing a public walkway, as it must be awful to live in homes being overlooked by the neighbours.
Oh.
Ian that link is to the Court of Appeal judgment.
This is the Supreme Courts
https://www.supremecourt.uk/cases/docs/uksc-2020-0056-judgment.pdf
Cheers – corrected, copied link from wrong browser tab.
This sets a rather worrying precedent. The designs for the Tate extension where well known before the flats existed.
However, I do have a bit of sympathy for the residents. Having been to the walkway itself, you can see everything. There is no privacy whatsoever. Observed many people taking photos of a guy cooking in his kitchen, which is totally not on.
Interesting case for sure!
**The designs for the Tate extension where well known before the flats existed.**
Yes, that’s what I’d heard. Is it definitely true? Because if it is, the complainants would seem to be in the same position as people who go to live next door to Heathrow and then demand that planes be banned from making noise.
The case is a fine one, as the 3-2 decision in the Supreme Court, overturning the decisions of the Court of Appeal and High Court, shows. What is reasonable here?
No doubt city residents are used to a degree of being observed from time to time as they go about their daily lives, and perhaps the flatowners here should have foreseen that floor to ceiling windows might allow people to look in as much they allow the residents to look out, but the Tate’s viewing walkway has essentially turned their homes into a public art installation where thousands of people a day can stare through the neighbour’s windows, take photographs, etc, essentially all day every day.
Does that amount to a wrongful interference with the neighbour’s reasonable use of their flats?
The Tate has tried to take some steps to reduce the intrusion: I expect the resolution of this case will be further steps to block the view from that side of the building most of the time outside a limited daytime period during the working week.
The residents also need to do their part perhaps by the installation of one way film so those outside can’t look in but the residents can still see out.
And perhaps use of net curtains / blinds etc
ChrisC, that is pretty much what the High Court suggested – the claimants could lower their solar blinds, or install privacy film, or net curtains.
That was rejected by the Court of Appeal (who dismissed the case on other grounds – they said “mere overlooking” is not a nuisance) and by a majority in the Supreme Court were not having it either:
“88 … In circumstances where the claimants are doing no more than occupying and using their flats in an ordinary way and in accordance with the ordinary habits of a reasonable person, it is no answer for someone who interferes with that use by making an exceptional use of their own land to say that the claimants could protect themselves in their own homes by taking remedial measures.”
It is not so much that some people might look out from the Tate straight into the flats, but rather that endless streams of visitors are invited to do so, for much of the time almost every day, in a way that was persistent and intrusive, excessive and unreasonable. The majority compare it (para 92) to a brass band practising all day every day in someone’s back garden, or noxious odours from industrial production, both of which would be an actionable nuisance.
The dissenting minority takes an approach that tries to balance the rights of each party – e.g. “215. … looking at the matter generally, a degree of toleration of some annoyance is expected as an aspect of good neighbourliness, with the object of allowing other landowners to enjoy their own rights of enjoyment of their property to the fullest extent reasonably possible.” and “271. … 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.”
Apologies if I’ve written too much here: the Supreme Court’s judgment is long (96 page!) but it is pretty readable.
The irony of the potential bias against the rich owners being overturned by a very costly (no doubt) Supreme Court appeal
I suspect we don’t see Council tenants bring these actions?
Possibly as part of a group claim, if there are enough of them to make the claim worthwhile and not too expensive, with alternative litigation funding and/or after-the-event costs insurance.
For example, in 1997, the House of Lords ruled in favour of the claimants in a nuisance case brought by several hundred residents of east London, whose television reception was adversely affected for several months by the One Canada Square tower – see https://en.wikipedia.org/wiki/Hunter_v_Canary_Wharf_Ltd
That viewing platform was one of the best in London, but sadly it has been closed since 2020 with no news of reopening anytime soon
I’d heard that. Do we know why? Covid apart obviously? Fear of the judgement maybe?
“They’ve sent the case back to the High Court to determine what level of remedy would be appropriate.”
Let’s hope the High Court awards the cost of a curtains as damages.
Or perhaps require the Tate Modern to put up a little sign saying ‘Please do not stare at our neighbours’.
One law for the rich, eh?
Unrestricted views of London? The Thames panorama, certainly…someone’s kitchen, not! If I happen to have the luxury of a full length window I would not a blind in front of it , unless when it is dark outside and I got the lights on.