Tate Modern: Flats overlooked by art gallery win privacy battle in Supreme Court

The owners living in residential flats (right) which are over looked by the Tate Modern (PA Archive)
The owners living in residential flats (right) which are over looked by the Tate Modern (PA Archive)

Owners of four flats overlooked by the Tate Modern have won their Supreme Court privacy battle over the gallery’s viewing platform, overturning decisions made in the High Court and Court of Appeal.

Residents of the Neo Bankside development on London’s South Bank took legal action against the gallery’s board of trustees in a bid to stop “hundreds of thousands of visitors” looking into their homes from the Tate’s viewing platform.

They applied for an injunction requiring the gallery to stop members of the public observing their flats by “cordoning off” parts of the platform or “erecting screening”, to stop what they said was a “relentless” invasion of their privacy.

The five residents lost their case in the High Court and Court of Appeal, taking their case to the UK’s highest court in December 2021.

In a ruling on Wednesday, the Supreme Court ruled by a three-to-two majority in the residents’ favour.

Natasha Rees, Senior Partner at Forsters LLP and lead lawyer advising the residents, 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.

“Our clients now look forward to working with the Tate as valued neighbours to find a practical solution which protects all of their interests.”

One of the flat owners previously said his family are “more or less constantly watched” from the viewing gallery and feel like they are in a zoo.

Guy Fetherstonhaugh KC, for the Tate, had previously argued there “is no general right not to be overlooked in English law” and that the Court of Appeal’s ruling was correct.

In 2016 the public art gallery opened a new extension. This building is ten stories high and on its top floor, has a free viewing platform with panoramic views of London.

The block of flats neighbouring the Tate are at around the same height, above ground, as the viewing platform and have walls constructed mainly of glass.

On the south side of the viewing platform, visitors can see directly into the claimants’ flats, the Supreme Court judgement said.

At the time of the trial the viewing platform was open every day of the week and was visited by an estimated 500,000 to 600,000 people each year.

The viewing platform is on the 10th floor of the Blavatnik Building (Andy Stagg/View/REX/Shutterstock)
The viewing platform is on the 10th floor of the Blavatnik Building (Andy Stagg/View/REX/Shutterstock)

The trial judge found that a very significant number of visitors display an interest in the interiors of the claimants’ flats.

“Some look, some peer, some photograph, some wave. Occasionally binoculars are used. Many photographs have been posted online,” a summary of the judgement said.

Giving the Supreme Court’s majority ruling, Lord Leggatt said the lower courts had found that the living areas of the flats – which have floor-to-ceiling windows – were under “constant observation from the Tate’s viewing gallery for much of the day, every day of the week”.

He continued: “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.”

Lord Leggatt found that theTate Modern’s viewing gallery is not a “normal” use of the museum’s land and is a legal “nuisance” to the flat owners.

He said: “It is beyond doubt that the viewing and photography which take place from the Tate’s building cause a substantial interference with the ordinary use and enjoyment of the claimants’ properties.

“Inviting members of the public to look out from a viewing gallery is manifestly a very particular and exceptional use of land. It cannot even be said to be a necessary or ordinary incident of operating an art museum.”

In his ruling, with which Lord Reed and Lord Lloyd-Jones agreed, the Supreme Court justice said that a “normal use” of the Tate’s building would not allow the flat owners to bring a claim.

However, he added: “The nature and extent of the viewing of the claimants’ flats goes far beyond anything that could reasonably be regarded as a necessary or natural consequence of the common and ordinary use and occupation of the Tate’s land.”

The Tate Modern on London’s South Bank (Craig Hibbert)
The Tate Modern on London’s South Bank (Craig Hibbert)

He suspected that what lay behind the rejection of the claim by the lower courts was “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.”

Lord Leggatt said the case will now be returned to the High Court to determine a solution for the flat owners.

Legal expert James Souter, Partner at Charles Russell Speechlys, said the judgement is “a landmark moment extending the law of nuisance to protect against visual intrusion”.

“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 over-looked.

He added: “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.”