Glass Houses: botheration in Bankside, nuance in nuisance

If you want to avoid your life being overlooked, don’t buy a glass fronted flat in a trendy area across the street from a world- renowned museum which wants to exploit its own potential for spectacular views.

The “Neo Bankside” case, the decision of Mr Justice Mann in Fearn & Others v. The Trustees of the Tate Gallery is interesting in a number of ways.

Blavatnik/Neo-Bankside face-off, © R.Harrison 2019

Blavatnik/Neo-Bankside face-off, © R.Harrison 2019

  • First, it is a judicial analysis of certain consequences of London life, of neighbours rubbing up against each other, albeit the circumstances were unusual and the neighbours in question not denizens of the usual suburban streets.

  • Second whilst it may not have finished its path through the appeal system, it contains a thorough review of the relevant authorities on the tort of nuisance which will fascinate both academic lawyers and those who may have to advise on such issues in future.

  • And, lastly, it illustrates some facts about the pathology of the litigation system and how advice as to the outcome of any particular case depends less on guiding and predictable principles, or right and wrong, but more on the weight a judge is going to attribute to some very nuanced factors.

Both sides in this case had some merit in their respective positions, neither behaved badly and both would have merited sympathy and support from their representatives and generated a belief that they probably had a good case. In the end, it is not about that and sometimes undeserved disappointment is an inevitable outcome of the litigation process.

What was it about? Essentially some residents of one of the blocks of “Neo Bankside” a striking development of luxury flats neighbouring the Tate Modern took exception to the fact that visitors to the tenth floor viewing gallery of the Tate Modern’s recent extension, the Blavatnik Building, could view too much. So they claimed an injunction to protect their privacy rights under the Human Rights Act and on the basis that the general law of nuisance was also effective to protect those privacy rights.

The essential design characteristic of the Neo Bankside flats is that they have floor to ceiling glass walls and in particular a triangular part called a “winter garden”, originally conceived as a sort of interior balcony but effectively forming part of the living accommodation.

Unfortunately, some of the buyers found that the expensive, extensive and impressive views this gave them also enabled Tate Modern visitors to peer into their flats. This seems to have led to a bit of shenanigans from both sides: waving, photography, rude gestures, that sort of thing. And when initial publicity about the case appeared, the activity from the visitors’ gallery appeared to have increased. Some of the residents felt uncomfortable and that their lives were being lived on public display.

The judge found as a fact that there were a significant number of people who demonstrated a visual interest in the interiors of the flats:

“Some look, some peer, some photograph, some wave. The occasions of obscene gestures are probably very rare”.

And his own viewing led him to conclude that:

“…one can indeed see all sorts of aspects of the daily living of the occupants of those flats.”

The first issue was whether there was a direct claim under the Human Rights Act for infringement of the right to privacy. The judge held that this was not available because the Tate Modern was not carrying out a function of a public nature.

The next issue was whether as a matter of principle, the law of nuisance extended to protection of privacy as part of its role in preventing interference with reasonable enjoyment of property rights. The Human Rights Act was relevant here: maintaining the rights that you have is part of the benefit of enjoying your property, and the judge determined that, since that Act, the law of nuisance was certainly capable of protecting privacy rights from overlooking in an appropriate case.

And so finally, the judge had to decide whether the circumstances of the case in fact founded a claim for an injunction. Was the viewing gallery a reasonable use of land bearing in mind the nature of the use, the locality in which it took place and bearing in mind that a complainant ought to put up with some give and take appropriate to modern society and the locale?

He found that it was, but based his conclusion on the point that the claimants had voluntarily decided to buy flats which were architecturally adventurous in an area where they had to put up with the whole package. They had voluntarily subjected themselves to circumstances of increased sensitivity.

He found that there were specific if not entirely effective remedial measures which the owners could employ and the judge also found that the voluntary restrictions as to opening hours and discouragement of photography which the Tate Modern had assumed were effective in the circumstances

The judge observed that, at the planning stage, nobody actually thought through the consequences of the design of both buildings so that was not really helpful to anyone. However, as part of the overall assessment, he found that there was an element of acquiescence on the part of the developers of Neo Bankside which factor went into the ultimate mix.

In summary, the judge looked at a range of factors and his eventual decision that there was no actionable nuisance derived from a balancing exercise. A slight difference in the steps taken by the Tate, the nature of the flats, the location and the opportunities available to the owners might have produced a different result. As ever, the outcome of litigation is a matter of factual assessment and nuanced judgment.

The judge referred to the 19th century judicial comment that “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.” Bermondsey itself has come up in the world, as evidenced by the presence of Laytons LLP. The present case was about what would be a nuisance in Bankside in particular circumstances. Different circumstances might have produced a different result. Predicting the outcome of a case where no-one is really to blame can be something of a lottery: litigation is indeed a matter of fine margins.

Two things not to overlook, as it were:

  • Understand why sensible lawyers deal in nuance not certainty

  • Always consider the benefits of mediation

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