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Homeowner's right to privacy

Residents of luxury flats in London have lost their legal battle with the Tate Modern in London to stop visitors peering into their flats.

Susan Harrison, Commercial Property Associate based at our Chichester, West Sussex, office has produced this article to advise clients on a recent court case surrounding a Homeowner's right to privacy. Contact Susan Harrison or a member of our Commercial Property Team if you require further legal advice.

 

In Fearn v Tate Gallery, five residents of a development of luxury flats brought a claim against the Tate Modern in an attempt to protect their right to privacy from the viewing terrace situated on the tenth floor of the Tate Modern’s Blavatnik extension.

The Neo Bankside development is situated on the south side of the River Thames adjacent to the Tate Modern museum. The living areas of the flats are extensively glassed, with floor to ceiling windows, and they look directly onto a new extension of the Tate Modern, the Blavatnik. On the tenth floor of the Blavatnik there is a 360 degree viewing terrace offering visitors a panoramic view of London. Unfortunately for the residents of the relevant flats at Neo Bankside, the living areas of their flats can clearly be seen from parts of that viewing terrace.

The residents complained of suffering continuous intrusion into their homes from visitors to the viewing terrace since the Blavatnik extension opened in June 2016. Visitors would peer into the flats, take photographs, wave to the occupants and make gestures.

The Tate Modern had displayed notices requesting that visitors to the viewing terrace respect the privacy of its neighbours. It had also, since the early part of 2018, reduced the amount of time people could use the viewing terrace.

The Judge agreed that there were a significant number of visitors to the viewing terrace, possibly in excess of half a million each year, and that their level of interest in the flats was such that a homeowner would reasonably find intrusive. However, was this sufficient to establish a claim in nuisance?

The Judge had to consider, first, whether the law of nuisance could apply to an invasion of privacy and, secondly, whether it had been established in the Neo Bankside case.  He decided that the law of nuisance is capable, in the appropriate case, of operating so as to protect the privacy of a home as against another landowner.  Looking at the facts of this case, however, he decided that the flat owners had created “their own sensitivity” to the inward gaze by living in flats with floor to ceiling windows and that remedial steps could be taken to protect against any invasion of privacy, such as covering the windows with blinds or curtains. As a result, he held there was no actionable nuisance claim. It is not known whether the residents will appeal the decision.

 

Fearn and Others v The Board of Trustees of the Tate Gallery [2019] EWHC 246 (Ch)