A nuisance at the Tate Modern

A flat in London’s NEO Bankside development costs more than three million pounds. 

It’s located on the South Bank, just across the road from the Tate Modern art gallery.

The floor-to-ceiling windows offer residents of the flats panoramic views of London’s skyline, but it’s what you can see from the museum’s viewing gallery that’s been the subject of years of legal action.

“It’s been a long-running saga. It’s been through the High Court and the Court of Appeal, and on both occasions the Tate actually won. ”  

JMW’s Inside Man: Your Legal Insider

The Tate Modern’s viewing platform opened in 2016 – four years after the flats were completed — and it gives visitors 360 degree views of the city. But part of it also faces directly into the NEO Bankside development.

There were signs asking visitors to respect the privacy of the people who live in the flats, but the residents felt that didn’t go far enough, so in 2017 a group of them applied for an injunction.

It demanded that the Tate close off parts of the platform to prevent visitors from seeing into their properties. They called it a “relentless” invasion of privacy.

But judges kept ruling against them… until years later, when the case made it to the UK’s highest court. 

“It’s taken Supreme Court a hell of a long time to produce the judgement – over a year – which is a bit odd because they actually say in a judgement that it’s a very simple case.”

JMW’s Inside Man: Your Legal Insider

The residents won their case. The ruling said that the owners face “constant visual intrusion”, which gets in the way of the “ordinary use and enjoyment” of their properties.

But if the case was so straightforward, why did it take judges five years and multiple court hearings to come to a decision?

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Usually, a case only makes it to the Supreme Court when there is public interest in the matter. 

And this lawsuit all centred around the idea of neighbourly “nuisance”. As the Supreme Court judgement put it:

“For centuries, the common law of nuisance has protected homeowners from activities of neighbours, which unduly interfere with the ordinary use and enjoyment of their homes. A typical case of nuisance is the neighbour who repeatedly plays loud music late at night, or a nearby factory, which emits unpleasant fumes.”

Supreme Court judgement

But nuisance laws don’t specifically account for visual intrusion. And this was a key question: did the residents of the NEO Bankside development have a reasonable expectation of privacy? 

Or should they have known, when they purchased a flat with glass windows across the road from a public building, that they would be relinquishing some of their privacy?

When the case went to the High Court one of the judges did have sympathy for the residents.

“The viewing gallery attracts hundreds of thousands of people each year, with a maximum of 300 visitors at one time. From the south side of the viewing gallery, visitors can see directly into the winter gardens, through to the general linear combination of the flats.”

High Court judgement

Ultimately though, the High Court concluded that it was also reasonable for the Tate Modern to open a viewing gallery for its visitors. It would be unfair to deprive half a million people of a unique view of London.

So why did the Supreme Court overturn that judgement and what implications could it have?

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“The judge found on the evidence at the trial that a very significant number of visitors display an interest in the interiors of the claimant’s flats. Some look, some appear, some take photographs, some wave. Occasionally, binoculars are used.”

Supreme Court judgement

This is an historic case. It’s the first time that the law has acknowledged the existence of visual nuisance – and that may have repercussions for future property disputes. 

But the judges were also clear that this was a unique and very specific set of circumstances.

“The living areas of the claimants’ flats are under constant observation from the Tate’s viewing gallery for much of the day, every day of the week; the number of spectators is in the hundreds of thousands each year; and spectators frequently take photographs of the interiors of the flats and sometimes post them on social media. 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.”

Supreme Court judgement

The Tate’s viewing gallery has been closed since the start of the Covid pandemic and hasn’t reopened. It may be forced to close permanently. But that decision will be made by the High Court, where both parties will have to negotiate a solution.

Until then, the residents of NEO Bankside can enjoy their views without people staring back at them.

This episode was written and mixed by Patricia Clarke.