The Supreme Court’s decision to side in favour of residents who claim the Tate Modern’s viewing platform encroaches on their privacy is shocking but will not open the floodgates for similar cases, an expert lawyer says.
In an unprecedented ruling on Wednesday, Supreme Court judges ruled 3-2 that visual intrusion can be a form of nuisance, alongside long standing forms such as noise vibration and dust.
Some legal experts have warned that inner city developers will now need to “think carefully” about balconies and roof gardens, while others suggest neighbours may try to use the decision to fight intruding security cameras.
But Partner at law firm Charles Russell Speechlys James Souter told the Standard “there isn’t a big floodgates argument here”.
Residents of the Neo Bankside development on London’s South Bank took legal action against the gallery’s board of trustees in a bid to stop “hundreds of thousands of visitors” looking into their homes from the Tate’s viewing platform.
The free public viewing gallery, erected on the 10th floor in 2016, was visited by an estimated 500,000 to 600,000 people the year of the trial, with some posting photos on social media.
The five residents lost their case in the High Court and Court of Appeal, taking their case to the UK’s highest court in December 2021.
In the landmark ruling, Supreme Court judge Lord Leggett said: “It is not difficult to imagine how oppressive living in such circumstances would feel for any ordinary person – much like being on display in a zoo.”
Speaking to the Standard, legal expert James Souter said the decision was shocking.
“I think lots of people expected the law of nuisance to stay as it was. There will be significant surprise.
“The Supreme Court is saying any activity by someone, and it doesn’t matter what it is, could potentially amount to legal nuisance if it causes a sufficient amount of interference with your use and enjoyment of your home.”
Mr Souter said there has not been a similar ruling before.
“Prior to today, it was not understood that nuisance would cover visual intrusion. As of this morning, it is understood that it will.”
But Mr Souter said urban developers need not be concerned with similar claims being lodged by other residents.
“The Supreme Court made it very clear that, in a sort of modern cityscape, there will be buildings sitting side by side, people living side by side and someone looking out the window of their building into the window of a neighboring building will not be a sufficient intensity of visual intrusion to amount to a legal nuisance.
“So I think it’s not going to stop property development in London or elsewhere in the country.
He added: “There isn’t a big floodgates argument here, we don’t need to worry about development in cities.”
Mr Souter said the Neo Bankside residents had an “extreme case” which involved tens of thousands of people a year visiting the Tate’s viewing platform, and it’s “difficult to imagine” a similar case arising.
But he said the Supreme Court ruling could give rise to a flurry of “nosey neighbour cases” involving CCTV video and video doorbells, in which claimants may try to use the visual intrusion defence.
“I suppose what you can expect is a flurry of people maybe looking to use the case and the law will develop. The Supreme Court said very clearly [that] nuisance can protect against anything that amounts to an interference with the enjoyment of someone’s home.
“But it is very clear that the bar is high.”
Residents have to expect a certain amount of activity in the neighbouring area, depending on where they live in London, Mr Souter said.
“The reality is, in the normal neighbourly context, it’s very unlikely to have any implication.”
Laura Odlind, Real Estate Partner at Mishcon de Reya, said the decision “paves the way” for neighbours to seek assistance from the court “they can show that a neighbour’s use of their property goes beyond that which is an ordinary use and impacts on the amenity of their property”, such as the use of security cameras.
Martin Thomas, real estate partner at law firm, Gowling WLG, said the decision will have an “important impact” for buildings with public viewing galleries which are not directly connected to the use of the property.
“A London Eye-esque building is OK, but art galleries, museums or restaurants with ancillary viewing platforms will need to re-consider their position,” he said.
Meanwhile Jessica Dick, Associate at Cripps, said the decision “is likely to make developers, especially those working in cities like London, think more carefully about adding features like balconies and roof gardens on non-residential buildings, like office blocks, in case they overlook nearby residents.”
