Landmark Ruling Raises Concerns Over Privacy Ramifications For Property Developments

The owners of four flats overlooked by the Tate Modern in London sprung a major surprise yesterday when they won their Supreme Court privacy battle over the gallery’s viewing platform, overturning decisions made in the High Court and Court of Appeal.

Residents of the Neo Bankside, fed up with “hundreds of thousands of visitors” looking into their homes each year from the Tate’s viewing platform on London’s South Bank took legal action against the gallery’s board of trustees in a bid to bring a halt to what they said was a “relentless” invasion of their privacy.

The five residents lost their case in the High Court and Court of Appeal, taking their case to the UK’s highest court in December 2021.

In a ruling yesterday, the Supreme Court ruled by a three-to-two majority in the residents’ favour.

Natasha Rees, senior partner at Forsters LLP and lead lawyer advising the residents, 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.

“Our clients now look forward to working with the Tate as valued neighbours to find a practical solution which protects all of their interests.”

Guy Fetherstonhaugh KC, for the Tate, had previously argued there “is no general right not to be overlooked in English law” and that the Court of Appeal’s ruling was correct.

In 2016 the public art gallery opened a new extension. This building is ten stories high and on its top floor, has a free viewing platform with panoramic views of London.

The block of flats neighbouring the Tate are at around the same height, above ground, as the viewing platform and have walls constructed mainly of glass.

On the south side of the viewing platform, visitors can see directly into the claimants’ flats, the Supreme Court judgement said.

“Some look, some peer, some photograph, some wave. Occasionally binoculars are used. Many photographs have been posted online,” a summary of the judgement said.

Legal expert James Souter, partner at Charles Russell Speechlys, said the judgement is “a landmark moment extending the law of nuisance to protect against visual intrusion”.

“Looking ahead, it will be interesting to see whether this case triggers more property owners to make similar claims where they feel they are being over-looked.”

Commenting on yesterday’s Supreme Court decision in the case of Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent), Claire Lamkin, partner in the Real Estate team at law firm Kingsley Napley LLP, said: “The Supreme Court has decided that residents of a glass block of flats have been subjected to intense visual intrusion by the use of the Tate Modern’s viewing platform by its visitors. The Court found that although neighbours are expected to adopt a ‘give and take’ approach and to take adequate measures to alleviate issues between them, the Tate’s use of its viewing gallery did not constitute a reasonable use of its land for the local area.

“Whilst today’s decision is a victory for the claimant flat owners and is important in terms of clarifying nuisance and privacy under the law, the judges emphasised the rare circumstances in this case. The likelihood of all nuisance cases succeeding in future remains slim. However, it will no doubt precipitate a wave of copycat cases where people feel a property development near them is highly intrusive. And to that extent builders, architects, developers, town planners and policy makers will need to check their plans carefully from now on to minimise the risk of future similar litigation.

“In the meantime, the Supreme Court has remitted the case back to the High Court to determine whether the residents are entitled to an injunction to prevent the viewing platform from being used.”

Lisa Barge, partner and head of real estate dispute resolution at Eversheds Sutherland, said: “We will potentially see an onslaught of claims based on nuisance where one party is overlooked from another building. However, careful advice should be taken before issuing such a claim, as there could well be many distinguishing factors: here the Tate was not considered to have put in place effective mitigation measures, the relevant part of Building was intended as viewing platform, and the impact on the flat owners was very significant given the numbers of members of the public that looked out from the viewing platform.

“Also, the question of what remedy will be imposed is not yet decided. It remains to be seen whether the flat owners will receive an injunction which prevents use of the viewing platform at all, or imposes a number of mitigation criteria. It is also possible that the flat owners receive financial compensation instead.

“So, watch this space.. as the story of claims based on lack of privacy or overlooking is not finished yet.”

Thomas Freeman, senior associate solicitor in the Real Estate Disputes Team at Irwin Mitchell, added: “In the short-term, the case is likely to be misunderstood as having been decided on the grounds of “privacy”. There are likely to be many people concerned about the use of neighbouring land or its proposed development who will seek to rely on it. However, the case was concerned the law of nuisance and not privacy. The Judgment is clear that the ordinary use of land, including for ordinary instances of overlooking or development, will not constitute a nuisance.”

“The case is important because the Supreme Court has re-stated the law of nuisance. In doing so, it has rejected the notion that there is a “reasonable user” test, or that the “reasonable use” of land in all the circumstances will provide a defence to claim in nuisance. Rather, the questions of whether the interference is substantial, and whether it emanates from an ordinary use of the land or not, are of paramount importance.

“In the longer term, it is the question of “ordinary use” which is likely to generate satellite litigation. It is difficult to assess ordinary use by reference to locality in highly developed mixed areas, or where new uses are to be introduced to an area or are developed incrementally over time.”

“Finally, the Supreme Court avoided the question of whether the owners should be awarded damages or an injunction. This is a missed opportunity for the Court to provide guidance in an area which, as the Court itself acknowledged, has been uncertain since the issue was last examined by the Supreme Court in Coventry v Lawrence.”

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