The residents of an exclusive apartment block on London’s South Bank have won their long-running legal dispute with Tate Modern over a viewing gallery that allows visitors to look directly into their homes.
A five-judge panel found, by a majority of three to two, that the platform constituted a “nuisance”.
Until today the residents have had no success in the courts, having lost in both the High Court and the Court of Appeal. Even so, in both courts they lost for different reasons, highlighting the complicated nature of the legal points at stake.
The viewing platform, part of an extension to Tate Modern named the Blavatnik Building, has been open to the public since June 2016. The walkway on the 10th floor offers panoramic views of London, but also allows people to stare into the adjacent Neo Bankside flats.
Giving judgment today, Supreme Court judge Lord Leggatt said this case 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,” Leggatt said.
James Souter, a partner at Charles Russell Speechlys, said the ruling was “a landmark moment extending the law of nuisance to protect against visual intrusion”.
Souter said: “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 CCTV and sharing of images from camera phones on social media.”
The residents say that, from a significant part of the viewing platform, there is “little to view apart from Neo Bankside”, which means that visitors inevitably have their eyes drawn to their homes.
They argue the deck is a “nuisance” as it enables visitors to the gallery to look directly into their multimillion-pound apartments, turning their homes into a “public exhibit”.
The main ruling, written by Lord Leggatt, found that “the Tate’s use of the viewing gallery gives rise to liability to the claimants under the common law of nuisance”.
“The claimants’ flats are under constant observation from the Tate’s viewing gallery for much of the day, every day of the week,” he said. “The number of spectators is in the hundreds of thousands each year… spectators frequently take photographs of the interiors and sometmes post them on social media.
“It is not difficult to imagine how oppressive living in such circumstances would feel for an ordinary person – much like being on display in a zoo.”
The High Court judge who ruled in an earlier hearing found that, as the South Bank is in the inner city, residents “can expect to live quite cheek by jowl with neighbours” and advised the residents to put up net curtains.
Today’s ruling disagreed.
“Inviting members of the public to look out from a viewing gallery is manifestly a very particular and exceptional use of land,” Leggatt said. “It cannot even be said to be a necessary or ordinary incident of operating an art museum.”
As for the blinds: “The claimants cannot be obliged to live behind net curtains or with their blinds drawn all day every day to protect themselves from the consequences of intrusion caused by the abnormal use which the Tate makes of its land,” Leggatt said.
“In circumstances where the claimants are doing no more than occupying and using their flats in the 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,” he said.
The Court of Appeal found against the claimants saying that “mere overlooking” cannot give rise to liability for nuisance.
The Supreme Court found that this is not a case of “mere overlooking”, and the judges at the Court of Appeal had made an “error” in their reasoning.
“The claimants have made it expressly clear from the trial that they do not object to the fact that they are overlooked by the Blavatnik Building,” Leggatt said.
“What they complain about is the particular use made by the Tate of the top floor. They complain that the Tate permits and actively invites members of the public to visit and look out from that location in every direction, including the claimants’ flats, only 30-odd metres away.
“To argue that this use of the defendants’ land cannot be a nuisance because ‘overlooking’… cannot be a nuisance is like arguing that, because ordinary household noise caused by neighbours does not constitute a nuisance, inviting a brass band to practise all day every day in my back garden cannot be an actionable nuisance… the conclusion simply does not follow from the premise.”
The Supreme Court found that, while the Tate is liable for nuisance, it was unable to decide what the remedy should be as the issue has not been properly addressed in the hearings.
Leggatt said the residents and the gallery should should try and reach their own agreement. If they can’t, the case must go back to the High Court for a decision.
Natasha Rees, senior partner at Forsters LLP, acted for the flat owners. She 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. Our clients now look forward to working with the Tate as valued neighbours to find a practical solution which protects all of their interests.”
The legal dispute has been ongoing since at least 2018, and the Supreme Court has taken more than a year to produce its judgment. Even so, the residents have not been recently disturbed by the viewing deck. It was closed during the Covid pandemic and has yet to reopen.
Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent)
Supreme Court (Lord Reed, Lord Lloyd-Jones, Lord Kitchin, Lord Sales, Lord Leggatt). Hearing date 7, 8 December 2021. Judgment 1 Feb 2023.
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