People Who Live In Glass Houses Shouldn’t Throw Stones
In the highly publicised case of Fearn and Others v The Board of Trustees of the Tate Gallery five residents of a development of luxury flats brought a claim against the Tate Modern Art Gallery (“the Gallery”) in an attempt to protect their right to privacy from a viewing platform situated on the tenth floor of the Gallery.
The design characteristics of the residents’ flats, known as Neo Bankside, was that they had floor-to-ceiling glass walls and a triangular section called a “winter garden” which was a sort of interior balcony and forming part of the living accommodation.
Unfortunately, the residents found that the extensive and impressive views that this gave them also enabled the Gallery’s visitors to view into their flats, wave, take photographs and even make rude gestures to them from the viewing platform.
The viewing platform was designed to provide a 360 degree view of the London skyline. Publicity about this case increased the visitor numbers to the viewing platform thereby exacerbating the problem for the residents. It was estimated that there were between 500,000 to 600,000 visitors to the viewing platform each year.
The residents therefore applied to the Court for an injunction preventing public access to the viewing platform alleging that the views into their apartments constituted a serious and actionable invasion of privacy under the Human Rights Act 1998. The Court also had to decide whether the law of nuisance could apply to an invasion of privacy and whether it had been established in this case.
The Judge decided that the law of nuisance was capable, in appropriate cases, of operating so as to protect the privacy of a home owner as against another landowner.
However, on the facts of this case, the Judge held that the residents had created their own sensitivity by living in flats with floor to ceiling windows and that remedial steps could be taken to protect against any invasion of privacy, such as covering the windows with blinds or curtains. As a result, the Judge found that there was no actual nuisance claim and there was also no direct cause of action under the Human Rights Act.
The Judge found that the residents had chosen to buy flats which were architecturally adventurous and therefore they had voluntarily subjected themselves to circumstances of increased sensitivity.
He said that if the residents have a design which raises the privacy invasion then they have created their own sensitivity and would have to tolerate what the design has created.
The Judge decided that the use of the viewing platform was not unreasonable given the character of the location and that the platform’s purpose was not designed to afford visitors a view into the apartments. Further, the Gallery had itself taken steps to limit the impact by agreeing to restrict the the hours of public access to the platform.
If you are involved in any property litigation or require assistance in any property dispute then please contact Luke Patel on 0113 2279270 or by email at “LPatel@LawBlacks.com”