The Supreme Court, the highest appeal court in the country, has today found, by a majority judgment of 3:2, that the rights of owners of flats overlooked by thousands of regular visitors to the Tate Modern art gallery's 'viewing platform' should be afforded protection in the law of nuisance. This is a significant case which signals a development, albeit in a very factually specific case, to the protections of property owners against visual intrusion.

The Tate Modern art gallery on Bankside in London attracts approximately 5.5 million visitors a year, of which an estimated 500,000 to 600,000 visit the Blavatnik Building viewing gallery.

The Blavatnik Building is an extension to the Tate Modern added in 2016 and the viewing gallery provides 360 degree panoramic views of London, including, in particular, the 18th and 19th floor flats of the Neo Bankside residential and commercial development which sits some 34 meters away from it to the south.

The external walls of the relevant flats are mostly glass, so the residents within are on full display to those visiting the southern walkway of the viewing gallery. Binocular use, photography and waving on the part of the Tate Modern visitors is not uncommon and photographs of the interior of the flats taken from the viewing gallery having found their way onto social media on occasion.

A claim based on the tort (civil wrong) of private nuisance was brought by some of the owners of the flats. The remedy sought by the flat owners was that the Tate Modern either be required (by injunction) to take steps to prevent visitors from looking into the flats or that they pay compensation to the flat owners for the intrusion.

The claim was dismissed for different reasons by both the High Court and the Court of Appeal and then went before the Supreme Court.

Today, the Supreme Court handed down final judgment, granting the appeal in favour of the flat owners by way of 3:2 majority, overturning the previous judgments.

The Judgment

The reasons for the majority judgment falling in favour of the flat owners are as follows:

  1. To establish an actionable nuisance, there must be a substantial interference with the ordinary use and enjoyment of the flats assessed with reference to the standards of an ordinary person. This interference must be created by the use of the Tate Modern in a manner which is not common or ordinary. The utility of the use to the public of the Tate Modern is not a relevant consideration for establishing whether a nuisance has occurred - it is only relevant for the purposes of deciding what remedy be granted for it.
  2. The intrusion suffered by the flat owners as a result of hundreds of thousands of people looking in on their homes each year is plainly a substantial interference with their ordinary use of the land. Whereas the Tate Modern utilising its land to provide a view for the public is not a common or ordinary use, even in a built up area. The Tate Modern is, therefore, liable in nuisance.

The minority dissenting judges considered that the locality of this area tilted the balance of liability away from the Tate Modern. This is, after all, the centre of a capital city in which privacy is not always a reasonable expectation.

The case will now be referred back to the High Court for argument about whether the remedy is an injunction to restrain the use of the platform, or whether financial compensation will suffice.

The Birketts View

This judgment is significant in a number of ways. From a private nuisance perspective, it potentially opens up a new arena for claims once thought to be limited by the general principle that overlooking cannot be actionable in nuisance. In a broader sense, it may be read as a signal that the English courts are increasingly willing to find in common law, remedies for privacy issues; an approach which one would more readily associate with their continental counterparts.

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