Tate Modern: Flats residents in fresh privacy bid over gallery viewing platform

Residents of flats overlooked by the Tate Modern have challenged a previous court ruling, arguing that if it is upheld, it could allow the gallery to open its viewing platform 24 hours a day and hand out binoculars.

The owners of four flats in 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.

They applied for 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.

But after losing their case in the High Court and Court of Appeal, the residents took their case to the Supreme Court.

On Tuesday, lawyers for the Tate argued the Court of Appeal’s ruling was correct and said the residents’ case should be dismissed.

Tom Weekes QC, for the flat residents, argued that the Court of Appeal “misinterpreted” the law.

He said that under the court’s ruling, the Tate would be allowed to hold barbecues on the platform and “use the viewing gallery as a rubbish storage area emitting a terrible smell”.

Mr Weekes continued: “It would mean that the Tate would now be able to remove the signs… and tell security guards that they no longer needed to discourage taking pictures.

“It could open its viewing gallery 24 hours a day and it could provide every visitor to the viewing gallery with a pair of binoculars.”

In February 2019, the High Court accepted “the complete glass walls of the living accommodation” gave visitors to the viewing gallery a “complete, or largely complete, view” into the flats.

But Mr Justice Mann dismissed the claim and suggested the owners could “lower their solar blinds” or “could install privacy film (or) net curtains”.

The Court of Appeal dismissed the owners’ challenge to that ruling in February 2020 “on the basis that overlooking does not fall within the tort of nuisance”.

The Supreme Court judges are now being asked to determine whether the Court of Appeal reached the wrong decision regarding the law on private nuisance.

They also need to decide whether the court was wrong to conclude that public viewing from the gallery did not amount to a breach of the residents’ rights to respect for their private and family lives.

In his written case for the Supreme Court, Mr Weekes said: “By choosing to buy a flat with big windows, a person does not ‘submit’ to relentless observation from a viewing gallery.

“That is not what you ‘sign up to’, or should reasonably expect to put up with if you choose to buy a flat with big windows.”

One of the flat owners, Ian McFadyen, previously said his family are “more or less constantly watched” from the viewing gallery and feel like they are in a zoo.

Mr Weekes later argued there are rights over the “ordinary” use of land, but actions had to be “conveniently done”, adding: “You cannot mow the lawn at three o’clock in the morning.”

Guy Fetherstonhaugh QC, for the Tate, argued there “is no general right not to be overlooked in English law” and that the Court of Appeal’s ruling was correct.

In written arguments, he said: “The overlooking in this case is an unintended consequence of the fact that the appellants have chosen not to take any significant measures to shield their homes from view by others whose purpose is not to engage in directed surveillance of others… but rather to look at the 360-degree view from the viewing gallery.”

He added the ability of the flat residents to “avoid, ameliorate or remove” the impact is key to whether there had been a breach of their privacy rights.

Mr Fetherstonhaugh later added that the residents still have rights, and that if photographs are taken from the gallery “with the deliberate intention of garnering private information for publication”, they may be able to claim for misuse of private information.

The case, being heard by five justices, is due to conclude on Wednesday with a decision expected at a later date.