THE TATE MODERN CASE
Some Reflections On Looking Into Windows
Firstly, a disclaimer: I am not a lawyer. However, since this judgement was given on the1st of February I have been asked by several clients what the ramifications might be and whether we thought we would become busier as a consequence of the decision.
These queries bought home again the fact that many of these ‘neighbourly’ issues, such as privacy, views and rights of light, are often conflated. It was reiterated in the case that the ‘ordinary use of land’ is privileged, so it can never be a nuisance. In this case, the creation of the viewing gallery, visited by an estimated 500,000 - 600,000 visitors per year, many of them seemingly intent on looking into the NEO Bankside Flats with binoculars or recording the neighbours and the neighbouring building with smartphones, was considered extraordinary. However, the use of the offices and restaurant below the viewing gallery by the Tate staff and visitors would not have been considered extraordinary and would not give rise to a nuisance.
The Supreme Court did make reference to some historical cases, most noticeably the 14th century case involving John Le Lesch, a London fishmonger who erected a watchtower on top of the wall of his house from which he and his family could stand and watch the private affairs of their neighbours. Clearly, someone with rather too much time on their hands. He lost his case, admitted a nuisance and undertook to remove the watchtower within 40 days.
Another ‘case’ of overlooking, not a legal one, this reminded me of is my former stomping ground, The Tankard in Kennington Road which was specifically designed with a large roof terrace, so that the 18th century customers could look over the high walls surrounding the grounds of the Bethlehem Asylum - now the Imperial War Museum - and watch the antics of the patients. Rather offensive to modern sensibilities, although if you were a patient at Bethlehem and subjected to Victorian interpretations of mental ‘healthcare’ being gawped at by a few idle drinkers was probably the least of your concerns.
The Tankard, Kennington Road – circa 1880s
Other ‘visual intrusion cases’ both here and abroad range from the simply unpleasant - a case where a telecommunications engineer erected a CCTV camera and motion-activated floodlight to record any movement in his neighbour’s garden - to the downright weird: the owners of a flat constructing a system of mirrors in their garden to enable them to observe the goings on within a dentist's surgery on the floor above them. At an excellent talk given by Landmark Chambers, the key legal protagonists made it clear that other viewing platforms, such as those on the Shard or the Walkie Talkie, would be an ‘ordinary’ use due to the distance from any neighbouring buildings. Anyone who has visited the vertiginous viewing platforms of these buildings will appreciate that you need military-grade binoculars or scopes to look into anyone's windows in the toy town that London appears to be from these heights.
All of the aforementioned cases contrast with the Tate case because of the sheer numbers involved: small groups of individuals observing as opposed to hundreds of thousands every year who then ‘share’ their spectacularly dull and unoriginal footage of their trip to London with their ‘followers’ or ‘friends’ on social media. The activities of the visitors to the Tate Modern viewing gallery seems unusual. Whilst none of us have any compunction about watching the world go by from within our own homes, or ‘twitching our curtains’, or, more contemporarily, adjusting the latticework on the artisan-made timber shutters, to watch what the neighbours might be getting up to. Conversely, I , for one, always feel quite awkward if I walk past someone else's house and my eye is caught by something going on inside. This led me to wonder whether the actions of the visitors to the viewing gallery might have been unusual either because there was a feeling of ‘safety in numbers’ and everyone was ‘doing it’ or whether they felt for, some reason, that the very existence of the viewing gallery somehow ratified their behaviour.
The case does seem to be a consequence of several unfortunate decisions:
1. Deciding to build a viewing gallery looking straight at the flats.
2. Deciding to buy one of the flats after having been told, in writing apparently, that the Tate had planning permission to build the viewing gallery.
3. When the owners of the flats complained to the Tate, and certainly after they took legal action, the Tate decided not to simply fix an opaque structure across the offending elements of the viewing gallery, rather than spending millions on a court case.
4. The decisions of all the visitors to the viewing gallery to take and publish photographs of the people in the flats; i.e. deciding that such an act was not intrusive and demeaning.
This is the most high profile ‘neighbourly matters’ case that I can recall. Whilst, in practice, a neighbour would need to prove extraordinary use to be successful, many neighbours may be unfamiliar, or choose, for reasons of expediency, to remain unfamiliar with the details of the case and use the precedent as a means of objecting to planning applications and even potentially threatening action in an attempt to frustrate future development projects. At the very least, it presents another uncertain area for property developers and further costs in taking advice on the location and use of, for example, roof terraces.
There is an echo, albeit in reverse, of the Tankard Pub viewing platform in some objections we have seen raised against a scheme we are involved with where an existing hospital, with very pleasant and generous roof terraces, is to be converted to residential use. The neighbours clearly having no objection to being previously overlooked by patients or hospital visitors, but feeling the ‘visual intrusion’ of residential occupants somehow unacceptable. A case in point for the publicity surrounding the Tate judgement raising this is an issue which may previously have been simply addressed by adherence to the local planning authority's separation distances. Conversely, the Tate case does provide some reassurance to building occupiers that they should not be expected to put up with unreasonable visual intrusion.
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