The Supreme Court has ruled in favour of local residents in their nuisance claim against the Tate Modern whose gallery viewing platform overlooked their homes.
Background
The claimants, five local residents, were long-term tenants of four luxury apartments in the Neo Bankside complex on the south bank of the River Thames in central London. The claimant’s apartments were located directly opposite a new extension of the Tate Modern (the ‘Tate’) known as the Blavatnic Building, which opened to the public in 2016. As a result of this extension, visitors to the Tate could enjoy a 360-degree panoramic view of central London on a new observation gallery, which encircled the whole top floor of the building. The new platform could hold approximately 300 viewers.
The claimants’ apartments consist of a primary living area including a kitchen, dining and sitting area, and a winter garden/indoor balcony. The apartments have floor-to-ceiling clear glass panels and wood facias that separate the interior dining and seating areas. The winter gardens are triangle-shaped end components that run parallel to the observation platform to the Tate. The claimants’ used the gardens as part of their living accommodation. The observation gallery and the apartments are the same elevation and approximately thirty four metres apart. The claimant’s often witnessed Tate visitors taking pictures and peeking inside their apartments. Visitors from the south side of the gallery had a direct view into the claimants’ living areas. Occasionally people who visited the Tate would use binoculars to look inside and social media users shared images of the claimant’s homes. Between June 2016 and April 2018, it was reported that 124 posts on Instagram were seen by approximately 38,6000 people.
The Tate made an effort to address these problems by hiring security guards to prevent visitors from taking pictures and put up signs requesting visitors to respect the privacy of its neighbours (which included the claimants). The impact of being overlooked by the observation gallery was unlikely to have been taken into account by the planning authority, and as a result, the developer of Neo Bankside did not foresee the degree of intrusion that would follow. The claimants subsequently applied to the courts for an injunction in 2017.
Legal proceedings
The claimants asked the court for an injunction to prevent members of the public from taking pictures and from peering into their apartments from the observation gallery. They requested that the Tate cordon off parts of the platform or erect screening. The claimants argued that the public’s use of the viewing gallery amounted to a nuisance. In other words, that it was an “unreasonable interference with their personal use or enjoyment of their land” as defined by Winfield & Jolowicz on Tort (18th edn), p 712 and confirmed by the case Read v Lyons & Co Ltd [1945]. The claimants also alleged that the use of the observation gallery infringed their rights under Article 8 of the European Convention on Human Rights (‘ECHR’) which protects the right to respect for private and family lives and their homes. The claimants claimed that the Tate had violated section 6 of the Human Rights Act (‘HRA’) 1998.
In its defence, the Tate argued that the use of the observation gallery did not unreasonably interfere with the claimants’ regular enjoyment of their apartments. The Tate denied it was a public authority for the purposes of the HRA 1998 and claimed that, in any event, the use of the observation gallery was a private act so could not be a breach of section 6 of the HRA 1998. Furthermore, the Tate claimed that any violation of Article 8 of the ECHR was excused by Article 8.2 because it had taken reasonable precautions to ensure that visitors would not disturb its neighbours.
