‘Living in Glass Houses’

This blog was contributed by Dr Carol Brennan, Teaching Fellow for Undergraduate Laws.

The Tate Modern, on the south bank of the Thames in London, is one of the most popular tourist attractions in the UK. Situated in a huge converted power station, it opened in 2000 and displays an international collection of contemporary art. In 2011, a ten-story extension to the museum was begun: originally the Switch House and later renamed the Blavatnik Building after a key donor, it opened in 2016 and one of its highlights was a ‘viewing gallery’, offering a stunning 360-degree aspect of the London skyline. Those enjoying the views, perhaps with a coffee or glass of wine, can also gaze straight into the homes belonging to residents of the adjacent luxury apartment building: NEO Bankside, also begin in 2011 and completed in 2012. These multi-million pound flats feature floor-to-ceiling glass walls, stunning architectural designs which afford Tate visitors unimpeded visual access into the interiors of the living spaces.

There are an estimated 600,000 visitors to the Tate viewing gallery per year and one claimant counted 84 people looking and taking, photos in a 90- minute period, with some photos being posted on social media. They reported waving and even obscene gestures. In response to complaints the Tate had significantly reduced the opening hours of their viewing gallery and installed security guards, along with signs reading: ‘please respect our neighbours’ privacy’. As controversy deepened, the then Director of the Tate Nicholas Serota, had suggested that Blavatnik residents could install net curtains – a solution which was not popular with those whose aspirations were for more 21st century interior décor!

The law became involved when the owners of four of the flats launched actions in nuisance and breach of privacy, seeking an injunction compelling the Tate to take steps preventing what they described as ‘relentless’ intrusions. Astute students of the law of nuisance should already be spotting a range of issues which could, and did, arise in the case. They include: reasonable use, locality, special sensitivity, planning permission, malice, and mitigation of loss. Then add to this the question of what constitutes a public body for the purposes of the Human Rights Act 1998 and protection of privacy under art 8 ECHR and you will see why Fearn v The Board of Trustees of the Tate Gallery ([2019] EWHC 246 Ch), despite being a first instance decision, should engage your imagination.

The purpose of this blog is to tempt you further to investigate the case, rather than to provide a detailed account. Suffice to say, having visited the site (declaring the view from the Blavanik ‘rather splendid … ‘) and conducted a thorough analysis of the issues, Mr Justice Mann concluded in favour of the artistic defendants. Citing the need for give and take in modern society he observed, ‘In an inner city urban environment with a considerable amount of tourist activity, an occupant can expect less privacy than perhaps a rural occupant might.’ (remember Bermondsey and Belgravia?) More particularly, the claimants had, in choosing architecturally adventurous homes, voluntarily ‘submitted themselves to circumstances of increased sensitivity’, with parallels being drawn to Robinson v Kilvert.

The most notable aspect of Fearn is the judge’s conclusion that, ‘in an appropriate case’ breach of privacy can constitute private nuisance. This departs from strong (but never unanimous) judicial and academic opinion that some sort of physical emanation (noise, smell, vibration) from the defendant’s land is required. Should this stand, it raises all kinds of tantalizing prospects for the development of the common law.

The claimants are considering an appeal. Having read the judgment in Fearn, how would decide such an appeal? A real (or virtual) visit to the Tate Modern, might help you decide.