Explaining the outcome of the Tate Modern viewing gallery dispute

Allyson Colby explains the outcome of a highly publicised privacy and nuisance dispute over Tate Modern’s new viewing gallery. Neo Bankside, a riverside development in London, was completed shortly before an extension to Tate Modern. It houses luxury apartments with floor-to-ceiling glass windows in the living areas, offering panoramic views of the city. However, their proximity to Tate Modern also means that people visiting the Tate’s new viewing gallery can see straight into the apartments. Some visitors use binoculars to study the properties; others wave and gesticulate. Photographs of the occupiers and their living accommodation have even appeared on social media. Hence the litigation in Fearn and others v Trustees of the Tate Gallery [2019] EWHC 246 (Ch); [2019] PLSCS 34. The owners of the apartments complained that their privacy was being invaded and of feeling as if they were living in a zoo. So they sought an injunction requiring Tate Modern to close, or screen off, part of the viewing gallery. However, there is no general law that protects privacy. Indeed, in a 1904 case (mentioned in a legal journal in 1931, but which lacks authority in the absence of a supporting citation) a court is said to have refused a dentist in Balham a remedy against a family who arranged large mirrors in their garden to see into his consulting rooms. Human rights The owners of the Neo Bankside apartments relied on the Human Rights Act 1998 (HRA) and Article 8 of the European Convention on Human Rights (ECHR), claiming to be entitled to respect for their private and family lives and homes. The judge rejected their claim, ruling that the rights were not directly enforceable against Tate Modern because it was not a public authority, or even a “hybrid authority” (having functions of a public nature). The judge accepted that Tate Modern is a creature of statute, receives modest public funding and is subject to some state controls. However, it does not act on the direction of, or instead of, a government department. Its activities are not “governmental” in nature and the operation of the viewing gallery was not a function of a public nature for the purposes of the HRA. Nuisance Did the law on nuisance assist? The owners of the apartments argued that the court was obliged to take the HRA into account and, if necessary, could, and should, develop the law to protect them. Tate Modern denied that privacy is part of the amenity of land. It argued that overlooking is governed by planning law and should not be protected by the tort of nuisance (unless the overlooking is deliberate and malicious). The planning authority had allowed the developments to proceed, side-by-side and, by refusing to obscure their glass, the owners of the apartments were claiming a right to a view, which does not exist in English law. Law The judge began with the authorities. The House of Lords had identified three types of nuisance in Hunter v Canary Wharf Ltd [1997] AC 665; [1997] PLSCS 108: encroachment onto a neighbour’s land; direct physical injury to a neighbour’s land; and interference with a neighbour’s quiet enjoyment of land. Any nuisance in this case would fall into the last category. Sturges v Bridgman (1879) 11 ChD 852 had established that “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. And there must be give and take between landowners: see Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264. The judge noted that the law traditionally provides special protection for homes, and that the publication of a book containing physical details of a home was an invasion of privacy contrary to Article 8 of the ECHR in McKennitt v Ash [2006] EWCA Civ 1714. So he concluded that, following the enactment of the HRA, the law of nuisance ought to be, and is, capable of protecting the privacy of a home against another landowner, given the right circumstances. However, that did not mean that all overlooking is a nuisance. The result The grant of side-by-side planning permissions for the buildings was of no assistance in this case because there was no evidence that the planning authority had specifically focused on overlooking. The question was whether Tate Modern was making an unreasonable use of its land, bearing in mind the locality, use and the principle of give and take. The properties were located in an area of London that attracted tourists. There was nothing unreasonable about the use of the art gallery in itself and, although the whole purpose of a viewing gallery is to overlook, it had not been opened to encourage voyeurism. Furthermore, city dwellers living cheek by jowl with neighbours can expect less privacy than country dwellers. Privacy is unusual, because susceptibilities and tastes differ, and the apartments were particularly sensitive. They attracted the gaze due to the extensive use of glass and because living activities had been moved into areas that were not intended for that purpose. Other architectural designs would have reduced the invasion of privacy to tolerable levels and, although nuisance claims are not usually met with the answer that claimants can take steps to protect themselves, the owners of the apartments could use curtains or blinds to protect their privacy. Consequently, the judge decided that it would be wrong to allow self-induced exposure to the world to create a liability in nuisance in this case. Therefore, there was no actionable nuisance. However, the judge did require Tate Modern to undertake to continue to restrict times of access to the gallery and to post notices and security guards to deter untoward curiosity. Will the curtain rise on an appeal? We must wait and see. Allyson Colby is a property law consultant For more, click here to listen to the latest in EG’s On the Case podcast series.