Supreme Court makes landmark decision in the Tate Modern Case

The Supreme Court has ruled in favour of local residents in their nuisance claim against the Tate Modern whose gallery viewing platform overlooked their homes.

Background

The claimants, five local residents, were long-term tenants of four luxury apartments in the Neo Bankside complex on the south bank of the River Thames in central London.  The claimant’s apartments were located directly opposite a new extension of the Tate Modern (the ‘Tate’) known as the Blavatnic Building, which opened to the public in 2016.  As a result of this extension, visitors to the Tate could enjoy a 360-degree panoramic view of central London on a new observation gallery, which encircled the whole top floor of the building.  The new platform could hold approximately 300 viewers.

The claimants’ apartments consist of a primary living area including a kitchen, dining and sitting area, and a winter garden/indoor balcony.  The apartments have floor-to-ceiling clear glass panels and wood facias that separate the interior dining and seating areas.  The winter gardens are triangle-shaped end components that run parallel to the observation platform to the Tate.  The claimants’ used the gardens as part of their living accommodation.  The observation gallery and the apartments are the same elevation and approximately thirty four metres apart.  The claimant’s often witnessed Tate visitors taking pictures and peeking inside their apartments.  Visitors from the south side of the gallery had a direct view into the claimants’ living areas.  Occasionally people who visited the Tate would use binoculars to look inside and social media users shared images of the claimant’s homes. Between June 2016 and April 2018, it was reported that 124 posts on Instagram were seen by approximately 38,6000 people.

The Tate made an effort to address these problems by hiring security guards to prevent visitors from taking pictures and put up signs requesting visitors to respect the privacy of its neighbours (which included the claimants). The impact of being overlooked by the observation gallery was unlikely to have been taken into account by the planning authority, and as a result, the developer of Neo Bankside did not foresee the degree of intrusion that would follow. The claimants subsequently applied to the courts for an injunction in 2017.

Legal proceedings

The claimants asked the court for an injunction to prevent members of the public from taking pictures and from peering into their apartments from the observation gallery.  They requested that the Tate cordon off parts of the platform or erect screening.  The claimants argued that the public’s use of the viewing gallery amounted to a nuisance. In other words, that it was an “unreasonable interference with their personal use or enjoyment of their land” as defined by Winfield & Jolowicz on Tort (18th edn), p 712 and confirmed by the case Read v Lyons & Co Ltd [1945]. The claimants also alleged that the use of the observation gallery infringed their rights under Article 8 of the European Convention on Human Rights (‘ECHR’) which protects the right to respect for private and family lives and their homes. The claimants claimed that the Tate had violated section 6 of the Human Rights Act (‘HRA’) 1998.

In its defence, the Tate argued that the use of the observation gallery did not unreasonably interfere with the claimants’ regular enjoyment of their apartments.  The Tate denied it was a public authority for the purposes of the HRA 1998 and claimed that, in any event, the use of the observation gallery was a private act so could not be a breach of section 6 of the HRA 1998.  Furthermore, the Tate claimed that any violation of Article 8 of the ECHR was excused by Article 8.2 because it had taken reasonable precautions to ensure that visitors would not disturb its neighbours.

High Court

In 2019, the claimants’ case was dismissed by the High Court. The judge determined that:

1. the tort of nuisance may, in the right circumstances, be used to defend against violations of privacy rights caused by an intentional act of peering into a claimant’s residence. However, in this instance, there was no unlawful nuisance. The judge stated that the apartments had a unique exterior characteristic i.e. floor-to-ceiling glass windows. Therefore, the owners had subjected themselves to a higher intrusion to privacy by deciding to purchase those particular flats; and
2. no public-facing duties were being performed by the Tate Modern. As a result, the Article 8 ECHR privacy argument under section 6 of the HRA 1998 was unsuccessful.

The High Court did, however, impose a time limit for the defendant’s use of the observation gallery and for erecting the necessary signs.

Court of Appeal

The claimants appealed unsuccessfully to the Court of Appeal in December 2021. The Court of Appeal upheld the High Court’s decision, confirming that there was no claim for nuisance in this instance.  However, it came to this conclusion for different reasons.  The Court of Appeal determined that ‘overlooking’ was not covered by the common law tort of private nuisance and it believed the creation of laws to address ‘overlooking’ should be left to Parliament.  It also found that there was no breach of Article 8 ECHR by ‘overlooking’.

Supreme Court

The claimants next appealed to Supreme Court and the case was heard in February 2023.  The Supreme Court found in favour of the claimants and allowed the appeal.  The court found that there was no limit on what could constitute a nuisance; “anything that materially interfered with the ordinary use and enjoyment of neighbouring land would qualify”.  That it involved striking a balance between the competing rights of ordinary use of the nearby landowners.

The Supreme Court held that the Tate had caused a private nuisance with a majority of three Supreme Court justices in favour and two dissenting.  Being photographed and continually observed was a clear interference with resident’s ordinary right to use and enjoy their land.  The Supreme Court justices in favour concluded that, given the platform’s weekly usage by thousands of visitors, it was expected that a sizeable portion of them would take pictures of the interiors.  The public use of the viewing platform was ‘exceptional’; it was not a requirement or an everyday occurrence of running an art gallery. As a result, the Tate was unable to depend on the neighbourly “give-and-take” principle to avoid a finding of nuisance.

Errors in previous judgments

The Supreme Court commented that the High Court judge made three errors of law:

• The judge applied the wrong standard.

The judge questioned whether the Tate was using its land in an “unreasonable” manner. Instead, the judge ought to have inquired as to whether running the observation platform on Tate land was a “common and ordinary use of the property”.

• The judge believed the owners had subjected themselves to a higher intrusion to privacy by deciding to live in the flats (which had floor-to-ceiling glass windows).

The Supreme Court confirmed that if the Tate had been using its land in its ordinary manner, the claimants could not have objected about visual privacy brought on by the design of their apartments. However, the Tate was not using its land in its ordinary manner, it was using it in an “abnormal and unexpected way”. Therefore, saying that the claimant would not have experienced a nuisance if their property had been built or designed differently was not an adequate defence to a nuisance claim.

• The judge determined it was reasonable for the defendant to anticipate that the claimants would take precautions to hide from the view of the observation platform, such as hanging curtains or fixing shades.

Unconsciously, this meant that the victim was given the onus of avoiding the effects of the defendant’s improper use of their property.

The Supreme Court found the following errors of the Court of Appeal:

• “Mere overlooking” cannot give rise to liability for nuisance.

This is true. However, it was not the objection in this case. The claimants asserted that the Tate allows visitors to gaze into the claimants’ apartments from their observation gallery.  The Tate permitted this to go on uninterrupted for the majority of the day every day. Therefore, “there is no reason why constant visual intrusion of this kind cannot give rise to liability for nuisance and, on the facts found by the trial judge, it does in this case.”

Minority Supreme Court justices

Due to a split decision of two to three by the Supreme Court justices, this case was extremely close. The residents’ claim that the visual disturbance they suffered from the Tate’s viewing gallery constituted as a private nuisance was not accepted by the minority.  They disagreed with the majority’s approach, for example, by looking at the defendant’s ‘ordinary use’ of its land.  A dissenting Supreme Court justice stated that the answer “depends on principles of reciprocity and compromise applicable to the Appellants and the Tate alike and the application of a standard of objective reasonableness informed by the character of the relevant locality”.  The minority Supreme Court justices thought it would be fair for the claimants to implement security measures in order to lessen the interference brought on by the Tate’s viewing platform and they believed the Tate had not behaved in an unreasonable manner by an objective standard.

Discussion

The Supreme Court judgment reinforces the key principle that private nuisance involves weighing up the conflicting balances of ordinary use. What tipped the scales in favour of the claimants was the tenants’ use, which was ordinary and reasonable, despite the unusual nature of the buildings. Whereas the Tate was extraordinary and abnormal due to the sheer volume of visitors to the observatory platform.  Potentially, there are many situations in which a landowner’s use of their land may be considered as ‘nuisance’ by a neighbour, and this tort will continue to develop as society evolves.