Flat owners win Supreme Court privacy case over Tate Modern viewing platform
The owners of four flats overlooked by the Tate Modern in London have won a Supreme Court privacy bid over the use of the gallery’s viewing platform.
Residents of the Neo Bankside development on the capital’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 prevent 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 – Giles Fearn, Gerald Kraftman, Lindsay Urqygart, and Ian and Helen McFadyen – lost their case in the High Court and Court of Appeal, taking their case to the UK’s highest court in December 2021.
However, in a ruling on Wednesday, the Supreme Court ruled by a three-to-two majority in the residents’ favour.
Giving the 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 the Tate 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.”
The Supreme Court heard that the residents’ flats, on the 13th, 18th, 19th and 21st floors of one of the Neo Bankside blocks, are approximately 112ft (34m) away from the Tate Modern and that those on the 18th and 19th floors are at around the same height as the viewing gallery.
Other flats in the four-block development are on sale for between £750,000 and £2.5 million, according to current listings on Rightmove.
Lord Leggatt said the five residents had bought their flats in 2013 and 2014, and the Tate Modern’s Blavatnik Building – which houses the viewing gallery – opened in 2016.
Dismissing the High Court claim in 2019, Mr Justice Mann found that the developers of the flats were aware a viewing gallery was going to be built, but “did not foresee the consequences”.
However, Lord Leggatt said that “what the Tate and the developers of the Neo Bankside flats knew of each other’s intended uses of their land” was not relevant to the appeal.
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.”
Lord Leggatt said the case will now be returned to the High Court to determine a solution for the flat owners.
Solicitor for the successful residents, Natasha Rees, of law firm Forsters, 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.
“Lord Leggatt, giving the majority judgment, recognised how oppressive it can be to live ‘under constant observation from the Tate’s viewing gallery for much of the day, every day of the week… much like being on display in a zoo’.
“Our clients now look forward to working with the Tate as valued neighbours to find a practical solution which protects all of their interests.”
The justice said that, at the time of the original trial, around half-a-million people visited the viewing gallery – which allows 360-degree views of London – each year.
Mr Justice Mann had suggested the owners could “lower their solar blinds” or “could install privacy film (or) net curtains”.
But Lord Leggatt said in Wednesday’s ruling: “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.”
Lord Leggatt said judges at the Court of Appeal had also made legal errors in their decision to dismiss the flat owners’ bid for an injunction or damages.
He later said: “I suspect what lies behind the rejection of the courts below is a reluctance to decide that the private 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.”
But Lord Sales, who would have dismissed the flat owners’ appeal, said in a dissenting judgment that the High Court judge was correct.
The justice, with whom Lord Kitchin agreed, said: “Property owners in this part of London have to expect to be overlooked to a significant degree and the risk of people being able to look through their windows from neighbouring properties is an inevitable part of community life in the area.
“It is normal to expect people to use curtains, blinds and other screening measures to limit the annoyance which that might cause.”
Following the ruling, a Tate spokesman said: “We thank the Supreme Court for their careful consideration of this matter. The Supreme Court has referred the case back to the High Court and, as the case is ongoing, we cannot comment further.”