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Neo Bankside residents lose appeal over Tate Modern overlooking

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Residents of the Rogers Stirk Harbour + Partners-designed Neo Bankside have failed in their bid to stop Tate Modern visitors peering into their flats

Five residents launched an appeal last year after losing a High Court battle in February 2019 to force Tate Modern to close part of the viewing platform on its Herzog & de Meuron-designed extension.

However, that appeal was thrown out earlier today (12 February).

In their nuisance action, launched in 2017, the residents claimed their human rights were being breached, due to ‘near-constant surveillance’ from visitors to the gallery, which is on the south bank of the Thames in central London. They said gallery visitors looked into their homes and posted photographs and films on social media and this was ‘unreasonably interfering with the claimants’ enjoyment of their flats, so as to be a nuisance’.

Justice Mann refused to grant the injunction and ruled that the residents had ‘created their own sensitivity’ by purchasing flats with floor-to-ceiling windows.

‘It would be wrong to allow this self-induced incentive to gaze, and to infringe privacy, and self-induced exposure to the outside world, to create a liability in nuisance,’ his judgement said.

The decision was reaffirmed by the three Court of Appeal judges, who refused to overturn the earlier High Court ruling ‘but for different reasons’. Indeed the appeal judgement (see attached) seemed to go even further by saying that ’overlooking does not fall within the tort of nuisance’.

Terence Etherton, the master of the rolls, who was sitting with Lord Justice Lewison and Lady Justice Rose, said that any ruling against Tate could have ‘opened the floodgates’ to claims in ‘every single case where there’s planning permission granted and there’s a balcony overlooking.’

He said: ‘Over the hundreds of years that the tort of nuisance has existed, there has never been a reported case in this country in which a court had found that overlooking by a neighbour constituted 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.’

In its original claim, the residents of the 2015 RIBA Stirling Prize-shortlisted building said Tate Modern could ‘easily’ have stopped ‘this invasion of the claimants’ privacy and home life … at little or no cost’.

The residents also said that the intense degree of visual scrutiny did ‘not provide a safe or satisfactory home environment for young children’.

According to the original court papers: ‘The defendants’ use of … part of its viewing platform [was] unreasonably interfering with the claimants’ enjoyment of their flats, so as to be a nuisance.

Speaking after today’s ruling, Natasha Rees, partner and head of property litigation at Forsters, who acted for the five claimants including resident Lindsay Urquhart of architectural recruiter Bespoke Careers, said a further appeal to the Supreme Court had not been ruled out.

She said: ‘The leaseholders are obviously very disappointed with the outcome of the appeal, not least because they lost on a ground raised by the Court of Appeal.

‘This is not a case of “mere overlooking” but a situation that can clearly be distinguished from the type of overlooking experienced between residential or commercial flats and houses, a fact that was accepted by the first-instance judge.

’My clients are considering an appeal.’

Matthew Bonye, head of real estate dispute resolution at solictors Herbert Smith Freehills who acted for the Tate Gallery, said: ’The residents had sought an injunction to require Tate to close off part of its viewing platform, but the Court of Appeal has upheld the High Court’s decision to reject the claim. The Court of Appeal panel of the Master of the Rolls, Lewison LJ and Rose LJ concluded that mere overlooking is not capable, as a matter of law, of giving rise to an action in nuisance. Owners are protected in other ways such as planning controls.’

Owners are protected in other ways such as planning controls

A spokesperson for Tate Modern said: ‘We have noted the decision of the Court of Appeal and are grateful for their careful consideration of this matter. We continue to be mindful of the amenity of our neighbours and the role of Tate Modern in the local community.’

Comment

James Souter, of London-based law firm Charles Russell Speechlys

Residents may need to invest in some net curtains after all.

Last year the High Court made its ground-breaking decision that overlooking can constitute a nuisance in some instances, but that, in the circumstances, the Tate was not at fault. That decision was perhaps surprising given the sheer scale of overlooking in this case, namely 600,000 visitors per year looking into, filming, and photographing the neighbouring apartments. However, on balance, the High Court had found that particularly as the claimants’ exposure was self-induced and they could adapt their homes to prevent the overlooking – by using net curtains – the Tate’s viewing platform was not unreasonable in the circumstances.

This decision marks the end of overlooking nuisance claims less than a year after their ‘creation’

Today, the Court of Appeal has confirmed that mere overlooking cannot constitute a nuisance, dismissed the claimants’ appeal, and refused the claimants’ request to appeal the decision further. Much had been made of the High Court judge’s suggestion that the apartment owners had submitted themselves to the nuisance by (i) choosing to live in Central London and (ii) by not using net curtains to protect themselves. The Court of Appeal disagreed on both counts and so while at face value the decision isn’t of huge interest, it is legally significant. The Court of Appeal refused leave to appeal to the Supreme Court but given the way the judgment was set out, there must be a good chance of this one going further. For now, however, this decision marks the end of the possibility of overlooking nuisance claims less than a year after their ‘creation’. It’s back to business as usual.

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