In the recent case of Fearn and others v Board of the Trustees of the Tate Gallery, the Court of Appeal has dismissed an appeal brought by neighbouring residents who sought an injunction to stop Tate Modern visitors from looking into their flats.
The residents are all long leasehold owners of flats within Neo Bankside, a modern development neighbouring the Tate Modern. Their flats have floor-to-ceiling glass panels and are situated directly opposite the viewing gallery of the Blavatnik Building, the Tate Modern's newly built extension which opened in June 2016.
The viewing gallery allows visitors a 360-degree panoramic view of central London. It is open daily and attracts hundreds of thousands of people a year. Visitors to the viewing gallery can see straight into the residents' living accommodation. They frequently take photographs (some of which are posted on social media) and even use binoculars.
The claimants alleged that the use of the viewing gallery constituted a nuisance (in the legal, technical sense) and infringed their rights to respect for their private and family lives and their homes, placing the Tate in breach of the Human Rights Act 1998.
In the High Court last year Mr Justice Mann dismissed the claim. The Tate was not a public authority within the Human Rights Act, so that part of the claim failed. He also held that there was no nuisance on the basis that the urban locality meant an occupier should expect less privacy, the glass walls of the flats made the claimants "unduly sensitive" and they could have used blinds, net curtains or privacy film. The residents were granted permission to appeal.
The Court of Appeal has now upheld the High Court decision, but for different reasons. It was irrelevant that the claimants were "unduly sensitive" and could have used blinds or other protective measures.
The Court observed that the true issue at hand was one of invasion of privacy rather than damage to property interests. To invoke the law of nuisance and the Human Rights Act was to try to fit a square peg into a round hole; the law of nuisance did not extend to "overlooking" and the Human Rights Act could not get around this.
On this basis the Court commented that Parliament should consider whether the issue of "overlooking" required further legislation. Until then, the occupiers of flats in urban environments will struggle to claim a right to privacy and we may see a trend in developers taking inspiration from design practices in highly built-up areas like Singapore, where reflective glass is commonplace.
The claimants are considering an appeal to the Supreme Court so, much like the visitors to the Tate Modern's viewing gallery, we are watching this space.