When Does the Law of Nuisance Protect the Privacy of a Home?
Fearn and others v Board of Trustees of the Tate Gallery
The owners of four flats in an expensive high-rise apartment block in Southwark have lost a privacy case against the Tate Modern. They had brought a claim under the law of nuisance and the Human Rights Act essentially alleging that their flats were being spied on by visitors of the museum and that this was impinging on their privacy. Both claims failed.
The flats are situated in the Neo Bankside development, which comprises several luxury apartment blocks on the South Bank of the River Thames. The development was nominated for the ‘Stirling prize’ in 2015, which is awarded to the building that has made “the biggest contribution to the evolution of architecture in a given year”. No wonder flats in the development are on the market for over £4 million and penthouses for upwards of £15 million. To even rent one of the flats would set you back £800 per week.
Common features of the flats are floor to ceiling windows, affording residents spectacular and unencumbered views of the skyline of London. Of course, whilst these windows provide a clear visual benefit when looking out of the flats, there is the converse effect with the risk of increased exposure from those who may be looking in. This issue became one of particular concern to the flat owners in 2016 when, much to their dismay, the Tate opened a viewing gallery on its tenth floor. Quickly becoming one of the museum’s most popular areas, the top-floor terrace offered panoramic views of London to the more than half a million visitors it receives it year. Such a view was described by the judge in the case as “rather splendid”. It also happened to provide a direct line of sight into the four flats less than 40 metres away.
The flat owners argued that the visual access afforded to the public by the viewing gallery breached their rights to privacy under nuisance and human rights laws. They had complained of “near constant surveillance”, peering, waving, photographing and even obscene gestures from visitors to the museum. One flat owner even said it felt like living in a zoo. Yes, seriously.
The Tate had put up notices asking visitors to respect their neighbours and they asked their security guards to actively discourage people from photographing the flats, but these steps weren’t enough for the flat owners. They sought an injunction requiring the museum to take stronger measures to prevent members of the public ‘observing’ their flats. They wanted the museum to screen off part of the new extension, or alternatively to to cordon off the area or otherwise restrict the view from the viewing gallery into their flats.
Human Rights Act claim
For a privacy claim to be successful under the Human Rights Act, the claimants had to successfully argue that the Tate exercised a governmental function. They could not. The key question was whether the activities of the Tate were governmental in nature. Although the museum offers displays, exhibits and has an educative role in advancing and promoting art to its visitors, it was held that these activities were not essentially governmental in nature, despite the fact that the UK Government has a role in the running and funding of the museum.
It is possible to use the law of nuisance to protect the privacy of a home. The flat owners argued that the Tate viewing gallery was unreasonably interfering with their use and enjoyment of the flats because it encroached on, and invaded, their privacy. However, the court held that, although the flat owners had been occupying a particularly sensitive property, they had been operating that property in a way which increased that sensitivity. Had the flats not included floor to ceiling glass windows, they would not have been subject to the same degree of exposure.
The judge commented that the flats were very impressive and that there were clearly great advantages to be held from the glassed views, but that came at a price in terms of privacy – they could not have their cake and eat it too. The judge also considered whether the flat owners could take protective measures to reduce their exposure, and if so, whether it would be reasonable in the circumstances to expect them to do so. From the evidence (and common sense) it was clear that steps could have been taken to limit the exposure of the flats: installing curtains, lowering the solar blinds in the flats, installing privacy film or a net curtain, putting plants or other objects in the garden to restrict the view, etc. The judge held that it was certainly reasonable, given the circumstances, for the flat owners to have taken such steps.
On the face of it, it would have seemed rather extreme to restrict the access of the Tate’s half a million annual visitors to 360-degree views of London for the benefit of a few luxury flat owners, who would have (or should have) known of the existence of the Tate’s extension at the time they bought their flats. In any event, it is simply common sense that having such extensively glassed flats works both ways and the benefit of spectacular views would be counterbalanced by a reduction in privacy. Another factor to bear in mind is that one of the reasons the flats are worth so much is their South Bank location next to the Tate. With these considerations in mind, it’s hard to feel too sorry for the flat owners.
Jack Lightburn – rhw solicitors llp