Apartment owners in London have won a six-year privacy battle against tourist hot spot the Tate Modern Art Gallery over a multi-million-pound extension with a platform from which visitors could see directly into their homes.
The United Kingdom's highest court, which has the final say on legal wrangles, has ruled the Tate Modern is infringing on the privacy of the owners of four apartments at the neighboring NEO Bankside development due to its viewing gallery.
The surprise decision by Britain's Supreme Court will likely have wide-ranging implications for development in the U.K. as it updates the "law of nuisance" that ultimately extends back to the 1300s to protect against visual intrusion.
The Tate Modern, a hugely popular public art gallery on London's South Bank, opened a new extension in 2016 called the Blavatnik Building. The building is 10 stories high and, on its top floor, has a viewing platform that offers panoramic views of London.
Apartment owners in the NEO Bankside block neighboring the Tate, which was developed by investment firm Native Land, are at around the same height as the viewing platform and their walls are mainly glass. They began a legal battle almost immediately.
On the south side of the viewing platform, visitors can see directly into the claimants' flats. At the time of the Supreme Court trial in December 2021, the viewing platform was open every day of the week and was visited by an estimated 500,000 to 600,000 people each year, according to the judgment.
The decision is a surprise as residents were in the last-chance saloon. A prior claim had already been dismissed by the U.K.'s High Court, which deals with non-criminal cases like this. The case went up to the Court of Appeal, which dismissed it for different reasons and said claimants should "lower their solar blinds." The residents then made an appeal to the Supreme Court, where judges ruled in their favor 3-2.
Lord Legatt, who gave the leading judgment, found that a significant number of visitors displayed an interest in the interiors of the claimants' flats.
The judgment said: "Some look, some peer, some photograph, some wave. Occasionally binoculars are used. Many photographs have been posted online."
The claimants have been seeking an injunction requiring the Tate to prevent its visitors from viewing their flats from the platform, or alternatively, an award of damages.
Lord Leggatt, who gave the leading judgment, decided that the Tate’s use of the viewing gallery does give rise to liability to the residents under the common law of "nuisance," and that the case should be now sent back to the High Court to determine what happens next, whether that is an injunction or damages.
The judgment, which runs to 168 pages, reasserts the principles of the law of nuisance, it says.
Common law is the body of law created by judges and tribunals in written opinion, as opposed to passed by Parliament.
The law of nuisance partly dates back to the 14th century. The Supreme Court judgment noted that in 1341, John le Leche, a London fishmonger, unlawfully erected a "watch-tower" to peep on his neighbors.
That case found that development could cause a "legally intolerable nuisance," even in a densely populated city, and enabled Leggatt to support the residents.
Forsters lead partner, Natasha Rees, advising the clients, said in a statement: "Our clients are both pleased and relieved that nearly six years after they began their claim the Supreme Court has now found in their favor. Lord Leggatt, giving the majority judgment, recognized 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.' Our clients now look forward to working with the Tate as valued neighbors to find a practical solution which protects all of their interests."
Mark Reading, vice-chair of the Property Litigation Association, said the "concept of abnormal use is one where the battleground for future cases is sure to lie."
"The question of whether the presence of CCTV located on one residential owner's property and focused directly into a neighbor's property gives rise to an actionable nuisance is but one obvious example that springs to mind," Reading said. "Is the presence of that equipment abnormal and would the neighbor have a claim in nuisance to prevent such use? It seems unlikely that it will be very long before this issue is again before the courts."
James Souter, partner at law firm Charles Russell Speechlys, said residents can now "throw away their net curtains after all."
"We’ve waited over three years for this decision and, having lost at the High Court and Court of Appeal, against all odds the flat owners have won the right to safeguard against an invasion of privacy in their homes. The Supreme Court decision was split 3-2 in favour of the flat owners showing 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 [closed circuit television cameras] and sharing of images from camera phones on social media."