12 February 2019

Case summary: Neo Bankside Residents v Tate Gallery

Forsters LLP acted for five residents of the Neo Bankside development, situated on London's South Bank, who brought a claim against the Tate Modern in nuisance and under the Human Right Act 1998 in an attempt to protect their right to privacy from the Viewing Gallery, which is on the tenth floor of the Tate Modern Blavatnik extension.

The residents have suffered continuous intrusion into their homes from visitors to the viewing terrace since the Blavatnik extension opened in June 2016.  The viewing terrace aims to provide a '360 degree' view of the London skyline, runs around all four sides of the extension and is open to the public seven days a week.  The southern side of the terrace faces Neo Bankside almost exclusively, and provides visitors with little else to view except the residents’ flats – which they can see directly into. Photographs are often taken of the insides of the flats and their occupants, with many of them subsequently uploaded onto various social media platforms.

Having heard evidence from the residents, the Judge held that there were a significant number of visitors to the Viewing Gallery and that their level of interest in the flats was such that a homeowner would reasonably find intrusive. He also held that the intrusion was greater than normal overlooking from windows.

Considering first the question of the Human Rights Act, the Judge had to decide whether the Tate was a public body.  Although he found the Tate displays some of the factors which are relevant to the question of whether it is exercising public functions, he did not think it qualified because the activities of the Tate are not governmental in nature. Nor did he think that the operation of the Viewing Gallery was a function of a public nature. As a result, the direct privacy claim under the Human Rights Act fell at the first hurdle.

Turning to the nuisance claim, the Judge stated that he first had to consider whether the law of nuisance could apply to an invasion of privacy and, secondly, whether it had been established in this case.  He decided  that the common law of nuisance could be extended under the direction of statute and concluded that the law of nuisance is capable, in the appropriate case, of operating so as to protect the privacy of a home as against another landowner.  Looking at the facts of this case, however, he decided that the flat owners had created their own sensitivity to the inward gaze by living in flats with floor to ceiling windows and that remedial steps could be taken to protect against any invasion of privacy.  As a result, he held there was no actionable nuisance claim.

The residents are considering an appeal.

A copy of the judgment can be found here.

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