Tate Modern ruling will have wider implications for museums, say legal experts

This week’s Supreme Court ruling that Tate Modern’s viewing terrace violates privacy and nuisance laws could spark similar cases against other public buildings, legal experts have warned.

The longrunning legal dispute began in 2017 when five residents from a neighbouring luxury apartment block, Neo Bankside, took action against Tate following the opening of the Blavatnik extension at Tate Modern.

The residents said they faced constant visual intrusion from visitors on the gallery’s viewing terrace 34 metres away, with pictures of the interior of their homes frequently posted on social media.

The residents had been living in the glass-fronted block of flats for four years before the extension opened, but were aware of the plans for the viewing platform when they moved in. At one point during the dispute, the former Tate director Nick Serota famously advised the residents to “get net curtains” if they wanted privacy.

Judges in two courts previously ruled against the flat owners. However, in a surprise decision on 1 February, the Supreme Court found in favour of the residents by a 3-2 majority, determining that the viewing platform interfered with the “ordinary use and enjoyment” of their properties. Judge Lord Leggatt compared the living circumstances for residents to “being on display in a zoo”.

Leggatt found that the onus for fixing the issue lay on the gallery. Contrary to previous rulings, the Supreme Court found that the Tate was using its property in an abnormal way by inviting hundreds of thousands of people onto the terrace each year.

The decision has now gone back to the High Court, which will consider whether to order an injunction or damages in lieu of an injunction.

There are concerns that the landmark ruling could lead to similar claims against other public institutions in built-up areas.

The judgment was clear that Tate’s viewing gallery was “a very particular and exceptional use of land”, ruling out the possibility of similar claims between neighbours on residential properties.

However legal experts have warned that the ruling, which essentially updates the 700-year-old law of nuisance, could have wider implications for public viewing spaces, particularly where that offer is not the primary purpose of the building.

“The key issue for developers on live and future projects, and building owners seeking to maximise on the profitability of the space in their building, is that visual intrusion can be a nuisance where the use of property is not common and ordinary,” said Adam Gross, a partner at law firm Fladgate. “And it is not a defence in those circumstances to say the neighbours should simply erect blinds or curtains to protect their privacy, or that the flats went up after.”

“Whilst today’s decision is a victory for the claimant flat owners and is important in terms of clarifying nuisance and privacy under the law, the judges emphasised the rare circumstances in this case,” said Claire Lamkin, partner in the Real Estate team at law firm Kingsley Napley LLP.

“The likelihood of all nuisance cases succeeding in future remains slim. However, it will no doubt precipitate a wave of copycat cases where people feel a property development near them is highly intrusive. And to that extent builders, architects, developers, town planners and policy makers will need to check their plans carefully from now on to minimise the risk of future similar litigation.”

Sociologist Laura Harris said the ruling will raise questions about public versus private life in cities.

"The Tate case is the visual version of the noise complaints that threaten live music venues as new housing is built around them," she said.

"Culture attracts residents to an area, but then becomes a ‘nuisance’ when it breaches the boundaries of private space. The Tate case and the growth in noise complaints post-pandemic should make us ask: Do we want cities that are alive with social life and creative expression, and all the unexpected encounters this throws up? And who should have the right to make this decision – the many, or the few?"

Harris believes that although the Tate case has been framed as being about privacy, it's more about power.

"The apartments gain value from the views they offer, but this value is negated if the windows can be seen into as well as out of," she said. "The apartment owners’ case was to claim the right to see, but not be seen. This is a right granted only to the wealthy. So the Tate case can be seen as a proxy of broader urban power struggles."

Forsters lead partner, Natasha Rees, who advised the flat owners, said her clients were “both pleased and relieved” that the Supreme Court had found in their favour.

“Our clients now look forward to working with the Tate as valued neighbours to find a practical solution which protects all of their interests," she said.

In a statement, Tate said: “We thank the Supreme Court for their careful consideration of this matter. The Supreme Court has referred the case back to the High Court and as the case is ongoing we cannot comment further.”

The viewing terrace is currently closed to visitors.