George Elliman

+44 (0)1733 887618 grelliman@greenwoodsgrm.co.uk

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Living in a Fishbowl

Property / 15 April 2019

In this update, trainee solicitor George Elliman discusses the recent case of Neo Bankside v Tate Modern, where a group of residents found that their enviable views of London came at a price…

The case centred around two Southwark properties – the Neo Bankside residential apartment block and the adjacent Blavatnik Building of the Tate Modern.  Neo Bankside features floor-to-ceiling glass windows that give residents panoramic views of London, which surely attracted many residents to the building.  That experience was soured when the residents found that the adjacent Tate Modern’s viewing gallery, opened in 2016, gave its visitors an uncomfortably generous view into their homes and private lives.  One resident complained that visitors to the viewing gallery ‘waved, made obscene gestures and photographed and filmed the family in the apartment’.

The residents’ claim rested on two pillars.  First, that the intrusion of privacy they suffered amounted to a violation of their right to privacy under s.8 of the Human Rights Act 1998.  Second, that they had a cause of action through nuisance as the intrusion affected their use and enjoyment of the properties.

The first pillar fell away on a simple technicality – the Tate Modern was not a public authority so an action under the Human Rights Act could not be brought against it.

In respect of the second pillar – the nuisance claim – the judge balanced the Tate visitors’ more than ‘fleeting or passing’ interest in the apartments with the extent to which the residents had accepted that situation.  He took a dim view of the residents’ claim – buying these apartments with panoramic views came ‘at a price in terms of privacy’.  It seems obvious, but windows are never one-way channels and an impressive view out will invariably mean an impressive view in.

The judge also distinguished invasion of privacy as more nuanced than other forms of nuisance.  A victim of excessive noise ‘would not be expected to buy earplugs’, but the Neo Bankside residents had a number of reasonable measures available to them to reduce the intrusion – like solar blinds, privacy film, net curtains or placing plants in the windows.  The claim was dismissed.

In many ways, the most significant element of this judgement was not the conclusion in respect of Neo Bankside and the Tate Modern, but what the judge left open for future cases.  Although the residents of Neo Bankside failed in their claim of nuisance, the judge broke new ground by concluding that a claim of nuisance to protect privacy from overlooking could succeed with a different set of facts.

The case also raises questions about due diligence before a property acquisition.  Parts of the judgement focus on the planning history of the opposing properties.  Construction of the two buildings began in 2011, when details of both Neo Bankside’s proposed high glass windows and the Tate Modern’s proposed viewing gallery were available in the public domain through planning applications.  Before even submitting an offer or instructing solicitors a buyer should investigate a property carefully, visit the site and, if in a development area, peruse the local authority planning portal.  Always consider the prospect that something surrounding the target property could cause an issue in the future.

A person need only take a walk through central Cambridge, for example, to see that convenient locations in fast-growing cities are in high demand for professionals, students and businesses.  It will be interesting to see how this judgement might be relied upon in future as, with space in city centres at a premium, developments climb higher and become potentially more invasive to their neighbours.

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