Owners of luxury apartments across from the Tate Modern showroom face an unacceptable level of intrusion preventing them from enjoying their homes, the Supreme Court has ruled.
In its majority ruling, the court determined that the apartment owners faced “continuous visual interference” that interfered with the “normal use and enjoyment” of their property, which expanded privacy law to include omission – though only in extreme cases.
Noting that some visitors to the Tate Modern gallery, which is now closed, have been photographing interiors and posting pictures on social media, Lord Leggatt said: “It is not hard to imagine how oppressive any normal person would feel in such circumstances – much like appearing in a zoo.”
The case involves five owners of four flats in the New Bankside development on the South Bank in London Action against the Tate More than 500,000 visitors a year look home from the viewing platform 34 meters away. The stand, which opened in 2016, offers a panoramic view of the city as well as a direct view of their glass-fronted apartments. The stand was opened to the public in 2016, four years after the apartments were completed.
The Supreme Court’s decision was anticipated as potentially enshrining tenants’ rights to privacy and potentially opening the floodgates to thousands of neighbor disputes.
However, Leggatt was clear in his opinion that this was a definite case, as the Tate’s decision to open a gallery was “a very exceptional and private use of the land”, and not that residents could complain of inconvenience because neighbors could see it inside their premises.
The ruling does not contain compensation, and this has been referred to the Supreme Court, suggesting that it may involve either an injunction or damages paid to the owners.
Leggatt’s ruling was upheld by Lord Reid and Lord Lloyd-Jones, while a dissenting ruling was made by Lord Sales, with whom Lord Kitchen agreed. The justices all disagreed with an earlier Court of Appeal ruling that visual intrusion did not fall under the scope of the Nuisance Act, but they were divided on the appropriateness of Tate’s use of her land.
The sales team agreed that visual intrusion could be considered a particular inconvenience, but suggested that although the viewing platform was not a “normal” use of Tate land, it was reasonable. Citing the “principle of reciprocity and reasonable settlement, or ‘give and take,'” he He noted that apartment owners can “take normal screening procedures”, such as putting up curtains.
Requiring residents to put up curtains “wrongly casts a responsibility to avoid consequences of disturbance on the victim,” Leggatt said, noting that judges would not require a person to wear earplugs to block out excessive noise.
He also disagreed with the idea that the property’s glass walls meant claimants were “responsible for their misfortune”.
The case has been running since 2017, when the owners of the apartments Apply for an injunction Asking the gallery to cordon off parts of the platform or erect a barrier to prevent what they said was an “unrelenting” invasion of their privacy. Judges in two courts ruled against the apartment owners on various grounds.
Subsequently, the case was heard by the Supreme Court, a move legal experts took to indicate that it was considered a matter of public interest.
There were two main legal questions: whether the “omission” constituted a private inconvenience, and whether the viewing gallery was a reasonable use of the Tate land, given that it was in an art gallery.
Leggatt ruled against the Court of Appeal’s earlier decision, and held that this was a “straightforward case of nuisance”. He admitted that the courts may have been swayed by what they consider to be the public interest, and that there may have been “a reluctance to decide that the private rights of a few wealthy landlords should prevent the general public from enjoying an unfettered view of London and the great National Museum from giving public access to Such a view.”
In a High Court preliminary ruling in 2019, Justice Mann accepted the argument that negligence theoretically fell within the scope of existing statutory protections against neighbour-to-home-break-in, nuisance-induced damage, but argued that the glass-walled design of the flats on the central London site came at a “price in terms of privacy.”
The flat owners later appealed, and in 2020 the Court of Appeal ruled that the omission could not be considered a private nuisance, although it argued that if it could, it would apply in this case.
Natasha Reese, a partner at Forsters LLP and lead solicitor who advises apartment owners, said her clients were “happy and relieved” that Leggatt recognized how “suppressive” the viewing platform was, and that they would work with the Tate to “find a workable solution that protects all their interests”.
James Souter, partner at Charles Russell Speechlys, said the ruling was a “historic moment for the expansion of the Nuisance Act to protect against visual intrusion”. He said the 3-2 split between the judges showed “how delicately balanced the case was until the end”.
“Looking ahead, it will be interesting to see if this case leads to more landlords making similar claims where they feel they are being ignored. However, the Supreme Court has made it clear that the circumstances in which the new law will be applied will be rare but highlighted the Issues related to security cameras and sharing images from cameras on social media,” Souter said.
Other lawyers indicated that the case could affect the developers. Adam Gross, partner at Fladgate, said they might consider building apartments close together, or putting in balconies.
Richard Cresall, a partner at law firm Gordons and an expert on property disputes, said the ruling was a “very unexpected outcome” but doubted there were many cases like this.
Donal Nolan, professor of private law at the University of Oxford, said the ruling was “a landmark decision in that it is the first time that English law has recognized that visual interference from neighboring lands can amount to a tort of private nuisance (and hence infringement of property rights)”. “. He said the impact on residents and developers “will depend on how broadly or narrowly other courts interpret the decision”.
A Tate spokesperson thanked the Supreme Court for its “careful consideration” and declined to comment further.