Residents of a luxury development who claim a viewing platform at Tate Modern has turned their homes into a “public exhibit” have won the go-ahead to take their nuisance claim to the Supreme Court.
The highest court has granted permission for a final appeal in the high-profile dispute, as the residents of multi-million-pound flats at Neo Bankside on Holland Street, SE1, seek to overturn a Court of Appeal ruling in February that the overlooking they complained of could not found a nuisance claim.
Previously, a High Court judge had found that overlooking could in theory constitute a nuisance, but dismissed the residents’ claim finding they had created a “self-induced incentive to gaze”.
Now they will hope to persuade the Supreme Court both that they are entitled to bring a nuisance claim, and that the breach of privacy they complain of in this case constitutes such a nuisance.
No date has yet been set for the appeal, but it is likely to be heard during 2021.
Dismissing the residents’ appeal in February, Sir Terence Etherton, the Master of the Rolls, said that they had claimed that, by allowing visitors to overlook their flats, the Tate had committed the tort of nuisance, and sought an injunction against the Tate to close the part of the viewing gallery which gives views into their flats.
However, he said: “The Court of Appeal has dismissed the appeal on the basis that overlooking does not fall within the tort of nuisance. Over the hundreds of years that the tort of nuisance has existed, there has never been a reported case in this country which has found that overlooking by a neighbour constituted a nuisance.
“On the contrary, courts have recognised that, subject to planning permission being given, an owner of land may create windows which overlook a neighbour’s property.”
He said there are other laws that protect privacy. “Parliament has created legislation in this area and is better able to weigh up the competing interests of the landowners than the courts.”
The viewing platform, part of an extension to Tate Modern named the “Blavatnik Building”, has been open to the public since June 2016. The walkway on the 10th floor offers panoramic views of London but also allows people to stare right into the adjacent Neo Bankside flats.
The residents argue that, from a significant part of the viewing platform, there is “little to view apart from Neo Bankside”, which means that visitors inevitably have their eyes drawn to their luxury homes.
According to their written particulars of claim, “when the viewing platform is open to the public, a near constant stream of visitors subject the claimants’ flats (and other flats in Neo Bankside) to prolonged, and a high degree of, visual scrutiny”.
This, they say, includes use of binoculars or phones or cameras with zoom lenses, with resulting photographs or films posted on social media sites.
They claim that they and their families are subjected to near-constant “surveillance” when they are in their flats, turning them into “something akin to a public exhibit”.
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