No Privacy, No nuisance
A claim under the Human Rights Act 1988 (‘HRA 1988’) and in nuisance was brought by five flat owners against the Tate Modern for invasion of privacy in their homes.
The claimants owned newly developed flats with large glass windows in Block C of Neo Bankside on the South Bank of the River Thames. The living areas in the flats can be seen from the viewing terrace in the Blavatnik Building of Tate Modern.
The claimants explained that they were regularly watched and photographed in their homes by visitors to the gallery, despite Tate Modern introducing measures to help minimise this. The claimants wanted an injunction requiring Tate Modern to stop members of the public observing their flats. The High Court held that there was no cause of action under the HRA 1988 and no actionable nuisance and the claim failed.
Practical Takeaway Points
- A right of privacy can exist, but not in this case.
- The law of privacy can protect property owners against intrusion by onlookers, but it is difficult to sustain this cause of action.
- Concerned parties should engage at the planning stage and object then.
- Rights of light might be an alternative claim if an otherwise unrestricted view is blocked.
- The choice of locality may have intended consequences, which you may not find acceptable, but these may be reasonable considering the nature of the locality.
- Developers who engage with another development should be careful if they show support for that development, which may have an unforeseen negative impact on their own development.
In 2006, plans for the Tate Modern development were drawn up. The plans did suggest that a viewing terrace was always intended, although the current level of intrusion was not anticipated by either Tate Modern or the developers of Neo Bankside. At around the same time, planning permission for Neo Bankside was granted.
The Neo Bankside flats and the Blavatnik Building were developed at roughly the same time and with a large degree of cooperation between the parties. The developers of the flats knew that there would be a viewing gallery, which they did not object to and instead supported, although they may not have realised the extent of the intrusion into the flats. It was held in court that there was a heavy element of acquiescence.
It was also held that the planning permission actually had little evidential value, as it did not deal specifically with the viewing gallery.
Invasion of Privacy
Tate Modern allows a maximum of 300 people in the viewing terrace at any time and it can only be visited during specified viewing hours. There are notices asking visitors to respect the privacy of the gallery’s neighbours and security staff are employed to stop people taking photos of the flats and occupants. As well as general visitors to the gallery, Tate Modern also hosts commercial and internal events, attracting hundreds of thousands of visitors each year.
The living rooms of the flats have glass walls and visitors to the can see into the flats (sometimes even with binoculars) and take photographs of the claimants in their homes. The High Court agreed that this was a material intrusion into the privacy of the living accommodation.
Right to Private Life under the HRA
The claimants asserted that privacy rights arose under the HRA 1998, because Tate Modern is a ‘hybrid’ public authority.
However, the High Court found that Tate Modern was not exercising “functions of a public nature” and that the operation of the viewing gallery by itself was not a “function of a public nature”. So, the privacy claim under the HRA 1988 failed.
Nuisance by Invasion of Privacy
Tate Modern is located urban south London, where there is a significant amount of tourist activity. An occupier in that environment can expect less privacy than, say, an occupier in a rural environment, although that is not to say that it is an area which a viewing platform should necessarily be actually expected.
The operation of an art gallery is not unreasonable in the neighbourhood and neither is the operation of a viewing gallery an objectionable activity - in fact, it was much welcomed by the local authority. However, if it were the case that Tate Modern opened its viewing gallery specifically to allow viewers to view the Neo Bankside flats, this would probably be unreasonable use.
It was considered that when the developers built the flats with more glass and less wall, they created a greater sensitivity to privacy because of the amount of glass. However, when considering a give and take approach, it would not be just to allow this self-induced exposure to the outside world to create a liability in nuisance.
Whilst it is unusual for claimants in nuisance claims to be advised to take remedial steps, the judge in this case agreed with the Tate Modern that the claimants could take remedial steps, such as lowering their solar blinds, installing privacy films and installing net curtains.