A Room Where You're Viewed - The Tate and The Court of Appeal

A disaster for the upmarket inner City dweller. You buy a flat in a striking modern development designed by Richard Rogers' firm. Nearby is the Thames, and around you culture and heritage ooze out of the walls. You are but a stone's throw from Tate Modern, an imaginative reinvention of Bankside Power Station. 

And that is where a neighbours problem started, and ended with a landmark legal ruling in February 2020 in the Court of Appeal - facts below are from the Court's judgment.

The problem came not from the original Tate Modern, but from a newer extension known as the Blavatnik Building, named after the eponymous billionaire who by press accounts made one of the largest donations to help fund the extension. More precisely, the problem was with a tenth-floor open gallery in the extension that enables visitors to enjoy a 360 degree view of central London.

A view that includes into part of certain flats in the adjoining Neo Bankside development, completed in 2012.

The flats concerned are 1301, 1801, 1901 and 2101 in Block C. Each has a general living area, alongside which is a triangular end piece known as a "winter garden". The winter garden area has floor-to-ceiling single-glazed windows, separated from the rest of the flat by double-glazed doors and heated by the same underfloor heating that heats the rest of the accommodation. The winter gardens were apparently conceived as a form of indoor balcony but have been incorporated by the owners into the general living accommodation. The litigation revealed no planning document indicating that the overviewing by the gallery had been considered when planning permission was given for the extension. 

The viewing gallery attracts hundreds of thousands of visitors a year. And for some visitors it has become part of the viewing experience to take a peek at the accommodation in the flats, Floor 18 being no more than 34 metres from the gallery. The windows of the flats have solar blinds; when these are down the interior of the flats cannot be seen in the daytime, though shadows of occupants may be seen in the evening. In any event, with the blinds down the flat occupants have no exterior view from the windows.

This taking a peek became a social media opportunity for some; between June 2016 and April 2018 there were 124 Instagram posts of the views, reaching an estimated 280,000 people. This is in addition to those who merely took photographs or got out their trusty binoculars. 

In response to complaints from the owners the Tate took some mitigating steps: it posted a notice in the viewing gallery asking visitors to respect the privacy of neighbours, and instructed security guards to stop photography. 

Nevertheless the claimant owners sought an injunction to prevent anyone from observing their flats from parts of the gallery where the flats could be seen. The principal legal basis of the claim was that viewing unreasonably interfered with the claimants' enjoyment of their flats, and so was a nuisance. 

Of course it was a nuisance, say the non-lawyers. Ah, say we infuriating lawyers, but "nuisance" has a special meaning in law. 

The Court of Appeal summarised the meaning of the term. We should concentrate on the Court's own judgment as opposed to the judgment in the High Court trial from which this was an appeal by the flat owners, but it is worth putting down a marker from the High Court trial where the judge pointed out that this is an inner city environment with a significant amount of tourist activity, and so an inner city dweller "...can expect to live quite cheek by jowl with neighbours".

So what is nuisance in legal terms? At simplest it is an interference with an owner's property rights. This does not get us very far without examples. Broad examples are encroachment on to a neighbour's land (say, tree roots), or direct injury to a neighbour's property (say, cutting down part of a tree on the neighbour's land), or interference with the neighbour's enjoyment of their property.

The last one is getting us a bit closer, but an important factor pointed out by the Court is that rigid classification can be difficult as "it may not easily accommodate possible examples of nuisance in new social conditions". Just to observe how social conditions have changed, the Court noted a case from 1879 where quaintly by today's standards the Court of Appeal said that "...what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey". 

What both lawyer and non-lawyer would recognise here is a sense of invasion of privacy allegedly suffered by the flat owners. But is this enough for the overviewing to be classed as a nuisance?

The law of England & Wales rests largely on the precedent of relevant past court decisions - the common law. Having reviewed relevant judgments, the Court here concluded that there had been no reported case in which a claimant had been successful in a nuisance claim for overlooking by a neighbour. As a separate matter the Court pointed out that a property does not have a right to light, short of an easement created after 20 years of unbroken enjoyment, the rationale being that such a right would constrain building in towns or cities.

The informed commentator might question now why the Court did not choose to extend the common law, as this can be and has been done to reflect updated contexts from ones in which earlier court decisions were made. But courts are wary of doing this without very good reason, and a big factor for this case is that there is developed planning policy covering issues such as the risk of overlooking for a new development (albeit that here the overlooking does not seem to be have been taken into account in giving permission for the extension).

Thus the Court did not find it difficult to reject the claimants' appeal, agreeing that any change to the law concerning overlooking was better suited for legislation than through amending the common law.

So short of an attempt to appeal to the Supreme Court it is now over to Parliament.........which I suspect currently has more pressing matters on its mind.

.........

The author is a former City law firm partner, still teaching legal practice but also doing guided walks as a professionally qualified tour guide and writing and lecturing on various things.

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