By Kate Holland
The UK Supreme Court has ruled that the London Tate Modern’s public viewing gallery overlooking the luxury glass-walled apartments nearby, is a visual intrusion amounting to the tort of nuisance. The decision in has attracted criticism for prioritising the privacy interests of a few wealthy individuals over the right of millions of everyday people to enjoy the views across London.
Within and without
What drives our curiosity to peer into other people’s lives? In The Great Gatsby, F Scott Fitzgerald gives us a lucid introspection into this complicated desire. As the novel’s narrator stands at the window of a fashionable urban apartment and looks out across the metropolis, he imagines what the ordinary person outside might imagine while looking back in at him:
…high over the city our line of yellow windows must have contributed their share of human secrecy to the casual watcher in the darkening streets, and I was him too, looking up and wondering. I was within and without, simultaneously enchanted and repelled by the inexhaustible variety of life.
Similar thoughts may have crossed the minds of the Tate Modern’s terrace guests and the inhabitants of the neighbouring £1.5 million luxury apartments. But The Great Gatsby’s narrator never had to deal with hundreds of people looking at his window, whipping out binoculars and smartphones and plastering photos of him on Instagram. Not much of a concern in the 1920s, but a very real phenomenon in the 2020s – and the everyday reality for Tate’s neighbours. As the Supreme Court in this case observed:
…a major part of what attracts the eye of the external viewer is the clear and uninterrupted view of how the claimants seek to conduct their lives in the flats. It is human nature that some people will display this sort of interest.
Look here, old sport
The Tate Modern’s Blavatnik Building opened in central London in 2016. Its top floor boasts a viewing terrace and a bar, and until recently 500,000 visitors flocked there every year to admire panoramic views across London, free of charge.
The terrace has capacity for 300 visitors at any one time, and was open every day of the week, from 10 am until as late as 10 pm on some nights. Unfortunately, it is only 34 m away from the Neo Bankside building – a modern luxury apartment block with floor to ceiling windows and individual glass ‘winter gardens’.
The thousands of daily visitors could enjoy the expansive views of London, and an intimate view into the Neo Bankside residents’ living areas. The courts described how some look, some peer, some photograph, some wave. Occasionally binoculars are used. There were 124 Instagram posts of the residents’ apartments during a two-year period, reaching an audience of 38,600 people.
Then came the war, old sport
While the casual watchers on the Tate’s terrace may have been enchanted by the human secrecy and variety of life in the Neo Bankside’s yellow windows, the Neo Bankside residents were decidedly repelled by the inexhaustible wondering and looking in. The owners of four of the apartments (residents) sued the Tate for nuisance.
The residents were , which advised them to install one-way glass, draw their blinds, or best of all – put up net curtains. They but were unsuccessful again, although for different reasons – it didn’t insist on the net curtains, but it held that ‘overlooking’ did not fall within the scope of common law nuisance.
Boats against the current, the residents appealed all the way to the Supreme Court. In a non-unanimous decision, the Supreme Court overturned both lower court decisions and held the Tate liable in nuisance.
Chapter One: The High Court tells the residents to get themselves some nice net curtains
The High Court held that the Tate’s use of the terrace as a public viewing gallery was a ‘reasonable’ use of its land, in its context as an art gallery, and so did not meet the legal test for nuisance.
Further, it held that the residents’ misfortune was self-inflicted on account of their apartments’ fully glazed facades and winter gardens, and that they had submitted themselves to sensitivity. It held that it would be wrong to allow this self-induced incentive to gaze… and self-induced exposure to the outside world to create a liability in nuisance.
It held that privacy is a bit different from other forms of nuisance, and those wishing to enhance their privacy should take their own protective measures – hence the net curtains.
Chapter Two: The Court of Appeal says ‘overlooking’ isn’t nuisance
The Court of Appeal rejected the High Court’s ‘reasonableness’ test and applied a different one – it held that the Tate’s use of its terrace was not necessary for the common and ordinary use and occupation of the Tate. But, nevertheless, it dismissed the residents’ claim on the basis that overlooking does not fall within the scope of the common law nuisance.
It went on to give three policy reasons against extending nuisance to overlooking: (1) it would be difficult to establish an objective test and draw the line on when overlooking amounts to nuisance; (2) planning laws and regulations are the better forum for controlling overlooking; and (3) privacy matters like this are better left to the legislature.
Chapter Three: Supreme Court – I’ve got something to tell YOU, old sport
A straightforward case of nuisance
gives a lengthy and comprehensive summary of the authorities on the various common law principles of nuisance going back to the 1860s. It found that the application of these various nuisance principles to the facts in this case was entirely straightforward and held:
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 … 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.
The correct test to establish liability in nuisance?
It pulled no punches in criticising both lower courts and pointing out where they had erred in law. The High Court had asked itself the wrong question in considering whether the Tate’s use of its land was ‘reasonable’. The correct question was asked by the Court of Appeal – whether the viewing gallery was a common and ordinary use of the land. It found that the Tate’s public viewing gallery was in fact a special and abnormal use – neither common nor ordinary.
Defence of ‘sensitive’ building design? Net curtains as protective measures?
It held that the apartments’ glass design and resulting sensitivity could not be used as a defence to nuisance – this would be unworkable, wrong in principle, and seriously enfeeble the protection that the common law of nuisance provides to homeowners using their property for the ordinary purposes of life. Similarly, on the use of remedial measures and net curtains, it held:
I cannot agree with the judge that “privacy is a bit different”… 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. In circumstances where the claimants are doing no more than occupying and using their flats in an 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.
A case of mere ‘overlooking’ and beyond the scope of nuisance law?
It was equally scathing of the Court of Appeal’s reasoning and rejected its three policy arguments against extending the law of nuisance to overlooking – there was no ‘extension’ required, simply the application of well settled tests. It disagreed that this was a case about mere ‘overlooking’:
The claimants’ complaint is not that the top floor … overlooks their flats… The Tate actively invites members of the public to visit and look out … permits and invites this activity to continue without interruption for the best part of the day every day of the week … half a million people … peer into the claimants’ flats and take photographs of them. To argue that this use of the defendant’s 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…
Why did the lower courts stray from the straightforward path?
The Tate, the Supreme Court held, was clearly liable in nuisance. Both lower courts had erred because they were influenced by what they perceived to be the public interest in the use made of the Tate’s viewing gallery. Public interest is restricted to the question of remedies for nuisance, not to the question of liability in nuisance. The viewing gallery’s public benefit is relevant only in deciding what remedy should be granted to the residents.
Chapter Four: So we beat on…
Some have criticised the Supreme Court’s decision as depriving the public of a benefit to protect the private interests of a few wealthy city-types. While it was an unusual and extreme case, the decision may have opened the floodgates of uncertainty in privacy disputes between neighbours.
And so, a happy ending for the Neo Bankside residents who will no longer be on exhibit – the show’s over. Or is it? It’s not quite the end of the story, because the Supreme Court made no decision on remedies and remitted that matter back to the High Court.
Another chapter to go then. Will an injunction be granted against the viewing gallery, or will the High Court give it the green light? It might simply grant some other form of relief to the residents, such as damages. The High Court’s net curtains may make an appearance after all…
In the meantime, if you’re tempted to take a sneaky trip up to the top of the Tate to sip a Gin Rickey and get a glimpse inside those jazzy glass apartments, well, don’t give it another thought, old sport – while the parties agree a solution or head back to court.
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