The Tate Modern Viewing Platform deemed a nuisance: developers and landowners beware

It is no exaggeration to say that the Tate Gallery is one of the cultural cornerstones of the UK. It consists of four galleries: two in London (Tate Britain and Tate Modern), one in Liverpool and the other in Cornwall. They draw in millions of visitors every year and enjoy worldwide recognition and renown.

Who could have possibly imagined that the law would one day brand this much-admired institution a nuisance? Yet that day has arrived.

The tort of nuisance

In English common law, a tort is an act or a course of action which leads to or causes loss, harm or damage to another party but which does not constitute criminal conduct. Torts can also arise from a failure to act or an omission. Torts are sometimes referred to as ‘civil wrongs’.

One form of tort is known as the tort of nuisance, which is claimed when someone causes substantial and unreasonable interference with another party’s land or their use and enjoyment of that land. The nuisance may be private, i.e., it impacts other individuals or public, which is when the actions cause a nuisance to society as a whole. While private nuisance claims are common, public nuisance claims are very rare.

Nuisance claims against neighbours often arise from excessive noise or the playing of loud music, especially at night. However, that is far from the only type of nuisance claim in tort, as the Tate has now found out.

A view from the gallery

Since the year 2000, the Tate Modern has been situated in a building at Bankside in central London, next to the River Thames. In 2012, a block of luxury apartments was constructed some 30 metres or so away from Tate. In common with many modern, high-end developments, the apartments were fitted with floor-to-ceiling windows.

Later, in 2016, the trustees of the Tate decided to enhance their customer’s experiences by the addition of a 360-degree viewing platform which was attached to the 10th floor. The idea was to provide their customers with a panoramic view of London. The platform proved to be a success, attracting some 500,000 visitors per year. They were treated to a splendid view of the rooftops of London and, it seems, an even better view of the apartment residents in their homes.

Not long after the viewing platform opened, residents of the apartment block noticed that some of the visitors were peering into their apartments. In some cases, with the aid of binoculars! Upon fielding complaints for the residents, the Tate did erect a notice to their customers to refrain from peering into the neighbouring apartments but it had little practical effect.

And so to court

In 2017, the residents launched a legal claim against the Tate, claiming that the invasion of their privacy constituted a nuisance and a gross intrusion on their privacy. For their part, the Tate argued that the residents were being too sensitive and, besides, they had not raised any objections in response to the application for planning permission.

The court of first instance, the High Court, rejected the claim, stating that the residents could put up blinds or curtains. This decision was subsequently upheld in the Court of Appeal. Finally, in December 2021, the case reached the Supreme Court, which published its decision only in February 2023.

The Supreme Court said it needed to consider if the Tate viewing platform had caused a substantial interference with the ordinary use of the resident’s land. The Court, expressing some sympathy with the residents, noted how oppressive it would be for someone to live in such circumstances and compared it to being ‘on display in a zoo’.

By a narrow 3-2 margin, the Supreme Court allowed the appeal, in effect, overturning the decisions in the High Court and the Court of Appeal. The Supreme court also stated that 'overlooking' could constitute a nuisance, an argument that had been rejected by the Court of Appeal.

The aftermath

The Supreme Court declined to make a decision on any remedy for either the residents or the Tate. It is believed that the case will now be referred back to the High Court for a ruling on what the Tate should do in respect of the viewing platform and whether or not they should pay any damages to the residents.

The Tate’s viewing platform has actually been closed since the COVID-19 outbreak and, as things stand, it is not clear whether it will ever re-open. If it does re-open, then it is safe to infer that it will only do so once some physical measures have been taken to prevent their customers from seeing into the apartments opposite.

For the rest of the world, particularly for property developers and landowners, a precedent has been set. ‘Overlooking’ has been accepted as a form of nuisance. Going forward, landowners and developers will have to factor this into their plans, lest they find themselves facing a claim for damages and the possibility of a very expensive re-build.

Seeking and obtaining the correct legal advice will be critical. An experienced property lawyer should be consulted well ahead of any redevelopment or building plans.

For further information and trusted legal advice regarding property law, get in touch with us at Carlsons Solicitors.