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Life imitating art: public viewing platforms and the law of private nuisance

Posted on 03 May 2019

Life imitating art: public viewing platforms and the law of private nuisance

If you can afford it, living in a high rise central London development can provide fabulous city views. However the residents of the extensively glazed Neo Bankside development next to the Tate Modern did not perhaps bank on their everyday lives becoming part of that view. A recent High Court decision has concluded that, on the facts, they had no lawful basis to complain about such intrusion.

When the Tate Modern completed its extension in 2016 it opened up a viewing gallery for visitors with a 360 degree vista of London, including views directly into some of the apartments in the development.  

Some of the residents issued proceedings against the Tate Modern arguing that it had unlawfully infringed their right to privacy and asked the court to order that part of the viewing gallery be cordoned off to prevent the visual intrusion into their apartments.

The Court heard that there were between 500,000 – 600,000 visitors to the viewing gallery each year with a maximum of 300 visitors to the gallery at a time.  Between four and ten percent  of those visitors took photographs of the apartments and some posted their photos on social media. Other visitors waved or occasionally made obscene gestures at the residents.  The residents gave evidence to the Court that they felt the intrusion oppressive with some saying they were prepared to sell their apartment if they lost the case.

Unfortunately for the residents, the Court dismissed their claim.  It considered what the residents' legitimate expectation of privacy was here, taking into account the fact the residents had chosen to live in an extensively glazed building in a busy London tourist area. The glazed apartments gave the residents great views of the outside, but the downside was that the outside world could also look back in at them. 

The Court said that the purpose of the viewing gallery was not for its visitors to look directly into the apartments and that this was only a by-product of the location. There had, it said, got to be some of give and take in this situation by the residents.  The Tate Modern had already limited the opening hours of the gallery, put signs up and instructed their security guards to try and prevent visitors from taking photographs of the apartments.  If the residents wanted to reduce the intrusion they could use blinds or curtains, but the law was not prepared to help them further.

This decision highlights the balancing act the Court will make between the rights of different occupiers. It also demonstrates that context is key. Had this claim been made by residents occupying a brick building in a rural location, then a different standard may have been applied.  In this case, however, the residents had to live with the consequence of selecting a property with "self-induced exposure" to the outside world.

We understand that the residents are pursuing an appeal.

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