Supreme Court finally weighs in on the Tate’s viewing platform
22 February 2023
In a headline-grabbing decision, the Supreme Court has decided that an observation platform at the Tate Modern Art Gallery (“the Tate”), which overlooks a number of nearby luxury apartments, gives rise to the tort of nuisance – read judgment
In 2017 a group of apartment owners from the Neo Bankside building issued proceedings complaining that visitors accessing the south side of the Tate’s observation platform could, and frequently did, look directly into the living areas of their homes (which have floor-to-ceiling windows). The judgments refer to visitors “peering in”, “looking”, in some instances waving to the flat occupants (friendly), and there was even a mention of someone looking in using binoculars (creepy). The evidence at trial also established that pictures taken from the platform, including views of the apartment interiors, had been posted on social media. The owners alleged that the Tate’s operation of the observation platform gave rise to the tort of nuisance, and they sought an injunction requiring it to prevent the intrusion they were experiencing (for example by blocking off that part of the platform), or damages in the alternative.
Upon being presented with the basic facts of the dispute, readers of this blog might instantly turn their minds to the application of Article 8 of the European Convention on Human Rights (“ECHR”), which provides a right to respect for one’s private life, family, home and correspondence, and perhaps also Article 1 of the First Protocol to the ECHR, which provides for peaceful enjoyment of one’s possessions (including land).
However, whilst human rights arguments featured heavily in the first instance trial before Mann J, by the time the Supreme Court issued its decision they had become something of a footnote, having little or no impact on the judges’ core reasoning – for neither the majority (Lords Leggatt, Reed and Lloyd-Jones) nor the minority (Lords Sales and Kitchin).
At first instance, Mann J decided that the Tate was not a “public authority” under section 6 of the Human Rights Act 1998, and accordingly, this was essentially a private dispute to which human rights law did not apply directly. That point was not appealed. It was not the end of the matter, however, because the courts had to consider whether or not their own human rights obligations as public authorities required them to develop/apply domestic law (in particular the tort of nuisance) in such a way as to provide a remedy to the flat owners. The Court of Appeal decided that Article 8 did not compel that course, and that the courts could and should proceed on the basis that the principles of domestic law could and would resolve the case in a Convention-compliant fashion.
Although the judges split 3-2 on the outcome, on that human rights question it appears that the Supreme Court was in unanimous agreement. In giving the judgment for the majority, Lord Leggatt said (at paragraphs 112 – 113):
The (sole) issue in this case is whether the viewing and photography to which the claimants are subjected on a daily basis violates the claimants’ rights to the use and enjoyment of their flats. No new privacy laws are needed to deal with this complaint. The general principles of the common law of nuisance are perfectly adequate to do so …I regard the claimants’ reliance on the right to respect for private life guaranteed by article 8 of the European Convention on Human Rights as an unnecessary complication and distraction in this case. There is no need or justification for invoking human rights law when the common law has already developed tried and tested principles which determine when liability arises for the type of legal wrong of which the claimants complain.
And for the minority, Lord Kitchin said at paragraph 206:
No part of the reasoning above depends in any way upon article 8 of the ECHR and the HRA. In my view, the basic concepts of the English law of nuisance are already adapted to cover the circumstances of the present case and reference to article 8 is unnecessary and unhelpful.
He also expressed the view that using Article 8 to overlay the tort of nuisance, or change its structure, was likely to be fraught with difficulty (see paragraph 208):
…It is by no means clear that article 8 imposes a positive obligation on a state to intervene in some way in a dispute between private parties of the kind which arises in this case. Nor is it clear whether article 8 requires the state to extend or qualify the property rights of one or other of the parties as a departure from whatever balance the state’s own law has itself struck between the competing interests, once one takes account of the usual margin of appreciation allowed to a state in striking a balance between competing interests and rights of private persons, particularly when they are covered by Convention rights such as article 1 of the First Protocol to the ECHR (right to protection of property). It is also by no means clear that the Tate (as opposed to the individuals who make use of the viewing platform and actually look into the claimants’ flats) is properly to be regarded as the relevant party which engages in intrusion into the home or the privacy of the claimants for the purposes of analysis under article 8. But it is not necessary to lengthen this judgment by exploring any of these issues.
Thus, human rights law – and in particular Article 8 – so often the star player in the controversial decisions of the day (for good reasons or bad), was on this occasion well and truly benched (yes, I watched the Super Bowl before writing this post).
The split decision therefore came down to a simple difference in interpretation of the relevant domestic authorities (including classic 19th century cases such as Bamford v Turnley (1862) 3 B & S 66).
Both the majority and minority agreed that the tort of nuisance can in principle cover substantial visual intrusion impacting on a claimant’s enjoyment of their property. On this point, they overturned the decision which determined the outcome in the Court of Appeal; it had found against the Claimants by determining that the tort of nuisance did not extend to “overlooking”, and so the visual intrusion complained of in this case could not make out the cause of action.
Where they differed was on the precise test to be applied in deciding whether a visual intrusion in any particular case would constitute a nuisance. The majority decided that, having established that there was a substantial intrusion, the question was whether or not the Tate, in operating the viewing platform, was using its property in a “common and ordinary” way, having regard to the locality. It then held that the Tate’s viewing platform, which was open every day of the week and inevitably encouraged attendees to look out and directly into the Claimants’ properties, was not common nor ordinary, even bearing in mind the locality. At paragraph 75 Lord Leggatt concluded:
Inviting several hundred thousand visitors a year to look out at the view from your building cannot by any stretch of the imagination be regarded as a common or ordinary use of land. Equally, having thousands of people each day looking into the interior of your flat, often taking photographs (which are sometimes posted on social media) and occasionally using binoculars, cannot possibly be justified by the rule of give and take. A flat owner who objects to this use of neighbouring land is not demanding of her neighbour any more than she must allow him to demand of her. She is not seeking any special or unequal treatment. She is asking only for her neighbour to show the same consideration towards her as he would expect her to show towards him.
The minority interpreted the case law as propounding a slightly different, more flexible test. Namely, they said that an accurate interpretation of the authorities – which frequently utilise the terminology of “reasonableness” and “reasonable user” – favoured a broader test of asking whether the defendant’s action was reasonable in all the circumstances, based on a neighbourly ethos of “give and take, live and let live” (which all the judges agreed underpinned the tort). It concluded that it was not unreasonable for the Tate, as an art gallery in a popular part of central London, to construct and operate a viewing platform.
The majority’s approach meant that considerations such as the public utility of the platform, the fact that the flats had floor-to-ceiling windows (rendering them particularly sensitive to the intrusion), or the possibility for the Claimants to take privacy measure such as installing net curtains, had to be left out of account. For the minority, those were factors which could all be put into the melting pot. Of note, however, it seems that a key difference between the two sides of the bench – not given significant attention in the leading judgment – is that the majority did not consider that the Claimants’ own use of their property (in having such windows without privacy measures in place) was out of the ordinary (see Lord Leggatt at paragraph 62), whereas the minority felt that it was (see Lord Sales at paragraphs 221, 225 and 238). Had the majority felt that floor-to-ceiling windows (i.e. effectively glass walls) was in itself out of the ordinary for that part of London, it seems that the outcome of the case would have been different.
Underlying all those factors – and whether they should be relevant or not – there will inevitably be opinions, and perhaps some strong feelings, about what balance the law should aim to strike between the owners of some luxurious flats in prime London real estate, and the broader public who want to enjoy a 360-degree view of London. No doubt this case will be fodder for some lively debate at the dinner table, not to mention the realms of social media. However, in this instance the Supreme Court decided that those broader considerations should not have a role in the court’s determination of liability (see in particular paragraph 121).
They did say, however, that such factors could be relevant to remedy, and on that question, failing agreement between the parties, the case will now return to the High Court. Remedy hearings are not always the most gripping of court fixtures, but in this particular case, should a hearing be required and a further judgment be given, it will be worth following.
Matthew Flinn is a barrister at 1 Crown Office Row
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