High Court judge Mr Justice Mann suggested that the law of nuisance can apply to a claim for invasion of privacy in appropriate cases. However in this case, by choosing to build or purchase flats with large windows the developers and residents had "created or submitted themselves to a sensitivity to privacy" which was greater than would have otherwise been the case.
"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," the judge said.
"Other architectural designs would have reduced the invasion of privacy to levels which should be tolerated; that is the appropriate measure in my view. If the claimants have a design which raises the privacy invasion then they have created their own sensitivity and will have to tolerate what the design has created," he said.
Property disputes expert Patricia Mellody of Pinsent Masons, the law firm behind Out-Law.com, said: "Although the residents lost their claim, the case is of significance as it is the first time it has been held that the law of nuisance should accommodate claims for breach of privacy; a view reinforced by Article 8 of the European Convention on Human Rights which protects the rights of individuals to respect for their private and family life and their home. The court made it clear this extension of the law of nuisance would only protect homes and not commercial property."
"Whether in fact in any particular case, overlooking would constitute a sufficient interference with privacy to constitute a nuisance would be a question of the extent to which there was a legitimate expectation of privacy. In this case, the homes in question had floor to ceiling windows. The judge accepted that the significant number of visitors to the Tate Modern's viewing gallery and their interest in the flats was intrusive. However, the judge found that had the homes been constructed with more wall and less glass, the level of overlooking would not have constituted a nuisance, and it would be wrong to allow the self-induced particular sensitivity of the homes in this case to found a nuisance claim," she said.
"The judge also found that the residents could have taken measures to avoid the intrusion they were complaining of, for example by putting up net curtains. It is unusual for nuisance claims to be successfully defended on the basis the claimant hasn't taken measures to avoid the consequences of the nuisance. The judge himself accepted that, by contrast, a victim of excessive noise would not be expected to buy earplugs. This is an extreme case of a completely glazed building adjacent to a viewing gallery and whilst it has extended the law of nuisance in principle to protect the privacy of homes, the findings of fact here are likely to mean its application to future cases is limited. It will be interesting to see if the decision is appealed," she said.
The Tate Modern extension complained about by the residents, known as the Blavatnik Building, opened in 2016. It includes, on its 10th floor, a walkway advertised as giving visitors a "360 degree panoramic view" of London. Residents of four flats in the adjacent Neo Bankside housing development brought a nuisance claim against the gallery, as well as a claim for breach of their right to privacy under the actionable right to privacy against 'public bodies' set out in the 1998 Human Rights Act 1988 (HRA).
In his judgment, Mr Justice Mann first concluded that the residents experience a "material intrusion into the privacy of [their] living accommodation". This intrusion was both "greater" and "of a different order" from what would be the case if the flats were overlooked by windows from a typical residential or commercial development, rather than a dedicated viewing gallery at a museum.
The judge dismissed the residents' direct privacy claim under section 6 of the HRA which prohibits public authorities from doing anything which is incompatible with a Convention Right on the grounds that the Tate was not exercising "functions of a public nature". He then went on to consider the nuisance claim. He said that he would have been "minded to conclude that the tort of nuisance, absent statute, would probably have been capable, as a matter of principle, of protecting privacy rights, at least in a domestic home". If he had not been, he noted that the courts are also capable of "developing existing causes of action", such as nuisance, to give effect to individuals' right to privacy under Article 8 of the European Convention on Human Rights as incorporated into UK law by the HRA.
However, after going on to balance the rights of the residents with those of the Tate Modern, the judge found in favour of the gallery. He noted that the "striking design" of the tower block, which attracted the attention of visitors to the viewing gallery, "has the consequence of an increased exposure to the outside world".
"That should not be allowed to alter the balance which would otherwise exist," he said.
It was also relevant to the judge that the glazed area at the front of each affected flat was not originally intended as part of the living accommodation, but rather as a type of "internal balcony" to which a lower expectation of privacy applied. He also noted that the residents had several remedial options available to them, such as lowering their blinds or installing privacy film or net curtains.
"A differently built, but perfectly acceptable, property would have had more privacy built in, or rather would not have had the same degree of exposure," he said. "These properties are impressive, and no doubt there are great advantages to be enjoyed in such extensive glassed views, but that in effect comes at a price in terms of privacy."