Five residents of the building had taken the Tate to the High Court in an attempt to win an injunction preventing members of the public from peering into their flats, but the judge ruled that they had ‘created their own sensitivity’ by purchasing flats with floor-to-ceiling windows’.
The applicants had claimed their human rights were being breached due to ‘near constant surveillance’ from visitors to the neighbouring attraction who, they said, had looked into their flats through binoculars and posted photographs and film of their homes on social media.
According to the 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.’
However Justice Mann today ruled against the residents and refused to grant them an injunction against the Tate.
It is understood the judge had accepted the behaviour of visitors on the viewing terrace could be classed as a ‘material intrusion’ into the residents’ privacy. He also found that in an ‘appropriate case’, the breach of privacy could have led to an actionable nuisance claim.
The tenants had created their own sensitivity by purchasing apartments with floor-to-ceiling windows
But in this case, Justice Mann said the tenants had created their own sensitivity by purchasing apartments with floor-to-ceiling windows. As a result, he found there was no nuisance.
Natasha Rees, partner and head of property litigation at legal firm Forsters, who acted for the five residents, said: ‘While we are pleased that the law of nuisance has been expanded permitting a breach of privacy to lead to a nuisance claim, we are extremely disappointed with today’s result.
‘The limited steps taken by the Tate to prevent visitors viewing into my clients’ apartments are ineffective and both my clients and their families will have to continue to live with this daily intrusion into their privacy.’
Rees said the residents were now considering whether to appeal.
In its original claim, the five residents of the 2015 Stirling Prize-shortlisted building had 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’.
Before the court case Southwark Liberal Democrat councillor Adele Morris, who had taken up the residents’ concerns, had met representatives from the Tate in a bid to thrash out a solution, along with Southwark’s director of planning Simon Bevan, Dan Clarke and James Henderson from Native Land – the developer behind Neo Bankside – and John O Mara from Herzog & de Meuron.
But the Tate rejected residents’ calls for the terrace to be cordoned off, or for a screen to be built at the residents’ expense along the viewing platform.
The Tate said it had put up notices asking visitors to behave ‘respectfully’ but was not willing to restrict access or use of the area.
Neo Bankside won planning permission in June 2007 and the scheme started on site two years later and finished in 2012.
The original Tate Modern extension – then with a glass façade – was permitted in December 2008, and included a roof-top terrace. A revised proposal including a brick façade and the viewing gallery was permitted in May 2009 as work began on the adjacent Neo Bankside.
In a statement, the Tate said: ‘The level 10 viewing platform is an important part of Tate Modern’s public offer and we are pleased it will remain available to our visitors. We continue to be mindful of the amenity of our neighbours and the role Tate Modern has to play in the local community. We are grateful to Mr Justice Mann for his careful consideration of this matter.’
