Tate Modern platform overlooking £2m flats 'is invasion of privacy'

Tate Modern viewing platform that overlooks £2m luxury flats is an ‘invasion of privacy’, Supreme Court hears as owners begin final legal bid to stop ‘hundreds of thousands’ of gallery visitors peering through their windows

  • Owners of flats in Neo Bankside development took action over viewing platform
  • Claimed privacy was being breached by visitors peering into homes from above
  • But judge previously ruled enjoying extensive views comes at a cost to privacy 
  • This was upheld by Court of Appeal last February, leading to Supreme Court bid 
  • Viewing platform on Tate extension completed in 2016, four years after the flats

A viewing platform at the Tate Modern which allows tourists to overlook a block of £2million apartments is a violation of residents’ privacy, the Supreme Court has heard.

The owners of four luxury flats in the Neo Bankside development on London’s South Bank are mounting a last-ditch legal battle to close down the gallery which allows ‘hundreds of thousands’ of museum visitors to look inside their homes. 

They first applied for an injunction in 2017 requiring the Tate to cordon off parts of the platform or to erect screening to block the views of their homes.

But they lost the last stage of their fight at the Court of Appeal in February last year, when a judge agreed with a previous High Court decision which suggested the owners could simply ‘lower their solar blinds’ or ‘install privacy film (or) net curtains’.  

The group have now taken their case to the Supreme Court, arguing that the platform goes against their right to privacy, as enshrined by Article 8 of the European Convention of Human Rights (ECHR).

They are also arguing once more that the gallery opens them up to ‘nuisance’ under common law, defined as ‘an unreasonable and substantial interference on the use and enjoyment of a person’s property’. 

Neo Bankside opened in 2012 followed four years later by the viewing gallery on floor 10 of the Tate’s Switch House extension, which the trustees said would provide ‘a unique, free, 360-degree view of London’. 

A photograph taken from the viewing platform in 2016 shows how visitors can see into the apartments at Neo Bankside (pictured, Mail on Sunday’s Charlotte Wallace showing how visible residents are)

The viewing platform seems to give a perfect view of Neo Bankside apartments (pictured) 

A graphic showing the locations of the multi-million pound flats (pictured right) and the viewing platform (left)

Flat owner Lindsay Urquhart, 48, arrives at the Court of Appeal in central London for a previous court hearing

The Tate took steps to reduce the intrusions on nearby homes, but the owners sought an injunction on viewing from part of the platform.

One owner said she had experienced people taking photographs, while others made obscene gestures and waved at her.

Representing the residents at the Supreme Court on Tuesday, Tom Weekes, QC, said the Court of Appeal had earlier ruled activities creating visual intrusions such as ‘watching, observation, photography or filming’ were not a private nuisance.

He said: ‘If the Court of Appeal is right, that would mean that the Tate could commit a nuisance by using its tenth floor walkway as a nightclub playing loud amplified music, for barbecues generating lots of smoke, as a rubbish storage area emitting a terrible smell and harbouring an infestation of flies, as an art installation involving shining dazzling light into neighbouring properties.

‘If the Court of Appeal was right on activities harming the amenities of neighbouring properties by such things as watching, observation, photography or filming, the Tate would, under law of nuisance, have complete immunity.

‘It would mean the Tate would now be able to remove its signs asking visitors to the viewing gallery to respect its neighbours’ privacy and tell its security guards that they need no longer discourage visitors taking photographs of the nearby flats and their occupiers.

Pictured: The viewing gallery at the Tate Modern, from which visitors can peer into the Neo Bankside apartment block 

A photograph taken from the viewing platform shows how visitors can look directly into the flats at the Neo Bankside development on London’s South Bank 

The Tate Modern’s new Switch House development, with Neo Bankside apartments to the left of the art gallery in central London 

2007 – Councillors approve plans for Neo Bankside, a new £132 development with 217 flats and penthouses in four separate ‘pavilions’. 

2009 – The Tate Modern receives planning permission to build Switch House, including a viewing platform. Neo Bankside did not oppose the application.  

2012 – Neo Bankside is completed. 

2016 – The Tate Modern unveils its new viewing gallery on floor 10 as part of its £260m Switch House extension. 

2017 – Residents launch a case claiming their right to privacy under the Human Right Act 1998 have been violated by visitors peering in to their flats. 

February 2019 – High Court judge Mr Justice Mann agrees there is an intrusion of privacy but says this wouldn’t have happened if the flats had normal-sized windows, so dismisses the claim. 

February 2020 – The Court of Appeal backs the High Court’s decision and throws out the claim. Master of the Rolls Sir Terence Etherton also denies the owners’ bid for the case to be heard in the Supreme Court. 

December 2021 – The case is heard in the Supreme Court in a last-ditch attempt by the home owners to have the gallery closed.  

‘It could open the viewing gallery 24 hours per day, and it could provide every visitor to the viewing gallery with binoculars,’ said Mr Weekes.

The barrister said there was ‘no sense’ in the court’s decision that those activities were ‘reasonable’ and those affected did not deserve ‘a legal remedy’.

Referring to the Court of Appeal’s judgement, Mr Weekes said it cited three reasons why this case was beyond the reach of the law of nuisance.

While the court argued that legal precedent supported their decision, Mr Weekes argued they had ‘both individually and globally misinterpreted the authorities’. 

He said: ‘Had the Court of Appeal understood how the controls in nuisance operate, it would have realised those controls work just as well in activities creating visual intrusion as with any other type of activity.

‘In relation to planning the Court of Appeal overestimate the ability of the planning system to control unneighbourly conduct.’  

The hearing before Supreme Court president Lord Reed, Lord Lloyd-Jones, Lord Kitchin, Lord Sales and Lord Leggatt continues. 

Mail Online has contacted the Tate Modern for comment.  

Lindsay Urquhart, 48, a building designer turned boss of multinational HR company Bespoke Career Management Ltd, who lives in a flat below the level of the gallery, spoke at the High Court hearing in February last year.  

The CEO said that when she bought her flat she knew that the Tate Modern Blavatnik Building was being built, but did not know there was to be a public viewing gallery.

She assumed the south section – facing Neo Bankside – would be used only for emergency access, and said she never contemplated the degree of intrusion into the flats which this section gave.

She told the court that since then she has experienced ‘visual intrusion and photography, people waving and obscene gestures,’ and ‘upsetting’ coverage on social media.

She also stated that when she visited the gallery, ‘she overheard one visitor to the gallery say that the ‘rich b*******’ who lived in the flats deserved the intrusion that the gallery afforded.’ 

In a witness statement for a 2018 hearing, Ms Urquhart said: ‘I feel as though my life revolves around the viewing platform’s opening hours.’

Another claimant, Ian McFadyen, said: ‘When our blinds are open and the viewing platform is in use, we are more or less constantly watched, waved at, photographed and filmed by people on the viewing platform.’

But Guy Fetherstonhaugh QC, for the Tate, said at the time that ‘the claimants’ remedy for what they perceive to be a nuisance lies in their own hands’, adding: ‘There is no right to a view.’

He said the claimants were seeking ‘to force the defendant to close a valued resource, and deny to the public the right to use the viewing platform for its intended purpose, merely to give the claimants an unencumbered right to enjoy their own view’.  

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