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12 February 2019

Tate Modern privacy case judgment

Today saw the much awaited judgment in the Tate Modern privacy case handed down by the High Court.

The case related to the viewing platform on the recently constructed extension to the Tate Modern and was brought by a group of owners of apartments in the neighbouring Neo Bankside development.  The owners claimed that the use of the viewing platform by the public, which overlooked their apartments, breached their rights to ‘private and family life’ under Article 8 of the European Convention on Human Rights and therefore caused a legal nuisance. 

Nuisance cases historically relate to noise emanating from a property or physical activity on land that prevents the enjoyment of neighbouring property. It is important to understand that whilst the law does protect a right to receive daylight to windows in a building, it doesn’t provide any right to a particular view from those windows nor does it prevent overlooking of the windows by neighbouring buildings.  Some of these issues will be considered in the planning context but this case was about private legal rights between the owners of neighbouring properties.

In a seventy page judgment Mr Justice Mann reviewed the planning and construction history of both the extension to the Tate Modern and the Neo Bankside development.  He also explored the law of nuisance and spent a fair amount of time looking at Human Rights.  His decision breaks new legal ground and confirms that the law of nuisance will protect privacy rights from overlooking in an appropriate case.  He cited the passing of the Human Rights Act in 1998 as being relevant to his decision even though he found that the Tate Gallery was not a public authority to whom the Act applied.    

However, having made that unexpected leap, he then went on to find that on the facts of this case no actionable nuisance was established.  Those reading the Judgment might find this surprising given the estimates of around 600,000 visitors to the viewing platform each year.  He accepted evidence that binoculars and cameras were used to see inside the Claimants’ apartments.  Against that he considered the inner city urban environment and what an occupant of an apartment in this setting might reasonably expect.  He found that the operation of an art gallery with a viewing platform in this location wasn’t unreasonable.  Much focus was placed on the design of the apartments and the extensive use of glass.  In summing up the Judge said that the Claimants had ‘…created or submitted themselves to a sensitivity to privacy which is greater than would be the case of a less-glassed design’.  He also ran through the steps which the owners could take to reduce the impact which included solar blinds and net curtains.

An important feature of the decision was the Tate Gallery having significantly reduced the opening hours of the viewing platform which is something that the Judge required to be recorded in undertakings to the Court.

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