(Updated on 1 February to add Reading's quote).
The Supreme Court has ruled that the Tate Modern is infringing on the privacy of nearby flats due to its viewing gallery which directly looks into their homes, in a landmark decision.
The judgment is being seen already as a milestone for development as it extends the law of nuisance to protect against visual intrusion.
The Tate Modern, a public art gallery in London's South Bank, opened a new extension in 2016 called the Blavatnik Building. The building is 10 storeys high and, on its top floor, has a viewing platform which offers panoramic views of London.
The claimants own flats in a block neighbouring the Tate that are at around the same height above ground as the viewing platform and have walls constructed mainly of glass. On the south side of the viewing platform, visitors can see directly into the claimants' flats. At the time of the trial the viewing platform was open every day of the week and was visited by an estimated 500,000-600,000 people each year.
The trial judge found that a very significant number of visitors display an interest in the interiors of the claimants' flats.
They noted: "Some look, some peer, some photograph, some wave. Occasionally binoculars are used. Many photographs have been posted online."
The claimants sought an injunction requiring the Tate to prevent its visitors from viewing their flats from the platform, or alternatively, an award of damages. Their claim is based on the common law of nuisance. The claims had been dismissed by the High Court and, for different reasons, by the Court of Appeal before the appeal was made to the Supreme Court.
The Supreme Court has now, by a majority of 3 to 2, allowed the appeal.
Lord Leggatt, who gave the leading judgment, decided that the Tate’s use of the viewing gallery does give rise to liability to the residents under common law nuisance and that the case should be now sent to the High Court to determine the appropriate remedy. The Judgment, which runs to 168 pages, re-asserts the principles of the law of nuisance.
Forsters lead partner, Natasha Rees, advising the clients, said in a statement: "Our clients are both pleased and relieved that nearly six years after they began their claim the Supreme Court has now found in their favour. Lord Leggatt, giving the majority judgment, recognised how oppressive it can be to live 'under constant observation from the Tate’s viewing gallery for much of the day, every day of the week…much like being on display in a zoo'. Our clients now look forward to working with the Tate as valued neighbours to find a practical solution which protects all of their interests."
Mark Reading, vice-chair of the Property Litigation Association said: “The Supreme Court concluded that visual intrusion is capable of amounting to a nuisance and has, as a result, extended the scope of that cause of action. The concept of abnormal use is one where the battleground for future cases is sure to lie. The question of whether the presence of CCTV located on one residential owner's property and focused directly into a neighbour's property gives rise to an actionable nuisance is but one obvious example that springs to mind. Is the presence of that equipment abnormal and would the neighbour have a claim in nuisance to prevent such use? It seems unlikely that it will be very long before this issue is again before the courts."
James Souter, Partner, Charles Russell Speechlys, said residents can now "throw away their curtains after all".
"We’ve waited over three years for this decision and, having lost at the High Court and Court of Appeal, against all odds the flat owners have won the right to safeguard against an invasion of privacy in their homes. The Supreme Court decision was split 3-2 in favour of the flat owners showing how finely balanced the case was even to the very end.
"Looking ahead, it will be interesting to see whether this case triggers more property owners to make similar claims where they feel they are being overlooked. However, the Supreme Court has made it clear that the circumstances where the new law will be applied will be rare but did highlight issues around CCTV and sharing of images from camera phones on social media."