Residents considering appeal after losing privacy case against Tate Modern

Residents of flats overlooked by Tate Modern have said they are “extremely disappointed” after losing a High Court privacy battle with the art gallery.

The owners of four flats in the Neo Bankside development on London’s South Bank took legal action in a bid to stop “hundreds of thousands of visitors” looking into their homes from the Tate’s viewing platform.

But the board of trustees of the Tate Gallery said the platform provides “a unique, free, 360-degree view of London” and argued that the claimants could simply “draw the blinds”.

Mr Justice Mann dismissed their claim at a hearing in London, saying: “These properties are impressive, and no doubt there are great advantages to be enjoyed in such extensive glassed views, but that in effect comes at a price in terms of privacy.”

In a statement after the ruling, a solicitor for the residents said they were considering an appeal against the decision.

Natasha Rees, partner and head of property litigation at Forsters, who acted for the claimants, said: “Whilst we are pleased that the law of nuisance has been expanded permitting a breach of privacy to lead to a nuisance claim, we are extremely disappointed with today’s result.

“The limited steps taken by the Tate to prevent visitors viewing into my clients’ apartments are ineffective and both my clients and their families will have to continue to live with this daily intrusion into their privacy.

“We are considering an appeal to the Court of Appeal.”

In a statement after the ruling, a Tate spokesman said the “viewing platform is an important part of Tate Modern’s public offer and we are pleased it will remain available to our visitors”.

He added: “We continue to be mindful of the amenity of our neighbours and the role Tate Modern has to play in the local community. We are grateful to Mr Justice Mann for his careful consideration of this matter.”

Susceptibilities and tastes differ, and in recognition of the fact that privacy might sometimes require to be enhanced it has become acceptable to expect those wishing to enhance it to protect their own interest. I refer, for example, to net curtains.

In his judgment, Mr Justice Mann said that the “complete (or largely complete) view that one has of the living accommodation from the viewing gallery” was “because of the complete glass walls of the living accommodation”.

He said the residents were “occupying a particularly sensitive property which they are operating in a way which has increased the sensitivity”.

The judge said that it was “plain that some remedial steps could be taken” by the residents, saying that “the owners could lower their solar blinds” or “could install privacy film (or) net curtains”.

Mr Justice Mann continued: “It is unusual for a nuisance claim to be met by the defendant saying that the claimant could take remedial steps to avoid the consequences of the act, but this is an unusual case.”

He added: “Susceptibilities and tastes differ, and in recognition of the fact that privacy might sometimes require to be enhanced it has become acceptable to expect those wishing to enhance it to protect their own interest. I refer, for example, to net curtains.”

The claimants had sought an injunction requiring the gallery to prevent members of the public observing their flats, by “cordoning off” parts of the platform or “erecting screening”, to stop what they said was a “relentless” invasion of their privacy.

At a hearing in November, their barrister Tom Weekes QC said the Tate was “operating a public viewing platform so as to encourage (hundreds of thousands of) visitors” to look into his clients’ homes.

He said visitors “subject the flats to an unusually intense visual scrutiny”, with some “using binoculars and zoom lenses” to look into the flats, adding that “because the visitors to the viewing platform are on a viewing platform, they don’t abide by the norms of behaviour that in everyday life protect the privacy of people in their home”.

But Guy Fetherstonhaugh QC, for the Tate, told the court that “the claimants’ remedy for what they perceive to be a nuisance lies in their own hands”.

He said the residents had complained about having to draw the blinds or put up curtains, but pointed out that “there is no right to a view”.

Mr Fetherstonhaugh added that the development and expansion of Tate Modern “will no doubt have contributed to the value of the claimants’ flats” and argued they “cannot pick and choose” which aspects of local developments they do or do not like.

In her witness statement to the court, one resident Lindsay Urquhart said: “It breaks my heart to think that on the rare occasion that I have forgotten to draw the blinds, and my daughter has been in the kitchen or living room, that people have been able to film and photograph my little girl in her own home and to upload the images onto the internet for anyone to see.”

She added: “I feel as though my life revolves around the viewing platform’s opening hours.”

Another, Gerald Kraftman, said: “I worry where the images will end up, particularly when I have children and grandchildren in the apartment, so I tend to always keep the blinds closed.”

Fellow claimant Ian McFadyen said: “We constantly have to be careful about our actions and appearance.”

He added: “I am conscious that I can be seen from the viewing platform and I generally avoid eating at the dining table because that is in clear sight of it.”

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