The Tate Modern decision: will this open the floodgates for more privacy intrusion claims?

The complaint

The claim in nuisance was started by four of the flat owners at the Neo Bankside development. The claimants’ complaint was that the opening of the Tate’s viewing platform in 2016 caused a serious invasion into their privacy.  Indeed, the very popular viewing platform is visited by thousands of people each week.  The visitors are able to see through the living areas of flats on the higher floors of the residential building – exacerbated by the fact that the flats have floor-to-ceiling windows.

To make matters worse, the visitors would apparently use binoculars, take photographs of the residential flat interiors and even post those photographs to various social media channels.

The flat owners sought either an injunction (i.e. a ruling compelling Tate owners to change the viewing arrangements or location of the viewing balcony) or, if that was not possible, damages (i.e. financial compensation).

The previous decisions

Both the High Court and the Court of Appeal ruled against the flat owners but for different reasons. The trial judge agreed that such a situation could amount to a nuisance but concluded it did not in this particular instance.  Specifically, he commented on the flat owners’ own decisions to purchase these particular flats with glass walls and the expectation of a certain loss of privacy.  In addition, the judge stated that the claimants could help themselves by lowering their blinds or installing curtains.

The Court of Appeal went further and found that in general, the case of simply ‘overlooking’ cannot be a nuisance.

The current decision

The Supreme Court decision (reached by a majority of 3-2) overturned the previous decisions, finding that while one might expect certain privacy intrusion in modern/glass-clad flats surrounded by other high-rise buildings, the use of the viewing platform went beyond the common and ordinary use of Tate’s land.

Lord Leggatt gave an example that if the Tate building was a block of residential flats of the similar height to the Neo Bankside and the occupants of those flats could see into the claimants’ living areas, this would likely still cause annoyance.  However, it would unlikely be an actionable nuisance as the occupants would simply be using their homes in an ordinary way.

The Supreme Court made no ruling on the claimants’ remedy and referred the matter back to the High Court for that determination.  The question which will likely arise is whether an injunction is appropriate (i.e. removing or limiting the use of the public viewing platform). If not, damages (i.e. financial compensation) will likely be awarded.  It is likely that the ‘public interest’ argument will be raised, due to the large number of visitors to the Tate’s viewing platform.

Commentary – floodgates opened?

The effect of this Supreme Court ruling will be tested through future cases, and it is difficult to say at this stage whether it will result in a barrage of privacy intrusion ‘overlooking’ cases.  However, the wording of Lord Legatt’s judgment, while accepting that such cases can amount to nuisance, suggests the threshold will be high, as it will likely have to involve both the lack of ‘common and ordinary use of land’ and a high level of intrusion.

This case will be of particular interest to developers of high-rise blocks in built up areas as it could present further headaches for them in a challenging market.