People in glass houses… Neo Bankside Residents v Tate Modern Gallery – a consideration of the right to privacy.

The residents of the premium Neo Bankside development, which is situated in a prime location on London’s Southbank, have failed in their attempt to protect a claimed right to privacy against the Tate Modern Gallery, and its viewing platform located on the 10^th floor of the Gallery’s “Blavatnik” extension.

The Neo Bankside development comprises four blocks of flats, constructed almost exclusively of glass. It is located adjacent to the Tate Modern Gallery, which, in 2016, completed the construction of the Blavatnik extension, which includes a 10^th floor viewing platform -designed to give “awe-inspiring 360° views of the London skyline”. Unfortunately for some of the occupants of Block C of the Neo Bankside development, the “360° views” include a direct view into the living space of their apartments.

The Neo Bankside residents sought an injunction requiring the Tate Modern to prevent members of the public from observing their flats, whether by cordoning off, screening or otherwise. Their claim was made on two bases.

Firstly, the residents asserted that the Tate Modern was a hybrid public authority and made a direct claim in privacy under section 6 of the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights.

Secondly, the residents sought to bring a claim in nuisance, by asking the Court to extend the law of nuisance to protect privacy (as the Courts are obliged to develop the law to protect privacy), and by asserting that the operation of the viewing gallery is a nuisance as it affected the use and enjoyment of their properties by encroaching on and invading their privacy.

Sitting in the High Court, Mr Justice Mann decided

• that the Tate Modern was not a public authority, as the activities of the Tate are not governmental in their nature. Therefore, the first element of the residents’ claim failed at the first hurdle; and
• in an appropriate case, the law of nuisance is capable of protecting the privacy of a homeowner against another landowner. However, in this case, the residents had created “additional sensitivity to the inwards gaze” and that the benefits of such extensive glassed views “come at a price” in relation to privacy. 

The residents therefore failed on both elements of their claim, and the claim was dismissed. It is possible that the residents may appeal this decision.

It will be interesting to see the extent to which Mr Justice Mann’s conclusion that the law of nuisance can operate to protect the privacy of a homeowner is adopted in other court claims.

If widely applied it could prove to be another weapon in the armoury of a disgruntled neighbour who may seek to oppose a development, particularly inner-city and brownfield sites, as a result of a potential nuisance caused by an encroachment on their privacy.