The owners of land in England and Wales traditionally have two legal rights of privacy.
The first is provided by the law of trespass, covering uninvited incursions onto one’s real property. And although the old signs warning that “trespassers will be prosecuted” were not quite correct, as trespass was not in itself a crime, trespassers certainly could be sued with great ease. Of course, landowners should forgive those who trespass against them, but failing that, they could sue trespassers for an injunction, or even damages.
The second right of privacy for those with legal rights in land is the law of private nuisance. This complements the law of trespass. If trespass deals with intruders and intrusions, the law of private nuisance deals with unwanted things inflicted from the outside. It is thereby a binary situation at law: a thing may be either a trespass or a private nuisance, depending on how the irksome interruption to the enjoyment of property has come about.
As the Supreme Court described this month, in a judgment which has put the law of private nuisance in the news, “Anything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land is capable of being a nuisance.”
The right to be free from this nuisance is only for those with property—freeholders and leaseholders—as the notion is that it is a property right rather than any personal right, and still less a human right. Like trespass, the law of private nuisance offers no help to mere occupiers or licensees or lodgers or guests. Only the propertied get the protection of this privacy right.
And as a property right, it exists regardless of any public interest in the right being or not being enforced or exercised. It is no answer to a property holder complaining of a nuisance to say that the nuisance is in the public interest. The presence of a public benefit may affect the remedy the court grants to the aggrieved property owner, such as whether he or she gets damages instead of an injunction. But the public interest does not extinguish the right. A property holder has the right to sue for nuisance just as he or she has the right to sue for any other interference with a private right.
In this month’s Supreme Court case, the leaseholders in one ugly building on the South Bank in London were complaining about a public viewing platform of another ugly building. The first ugly building is a block of flats which is part of the Neo Bankside complex. One feature of these flats is that the living space has floor-to-ceiling glazing, no doubt to allow the residents splendid views of the Thames and of London.
The problem is the public viewing platform of the second structure, the Blavatnik Building, which is part of the Tate Modern gallery. This platform is also intended to afford splendid views of the Thames and of London. Indeed, visitors to the gallery have a 360-degree panoramic view of the capital and its environs.
But the difficulty is that on one side of the public viewing gallery, visitors can look into the living spaces of the complaining residents. And not just look in: the evidence placed before the trial judge in this case was of marked ongoing surveillance, with visitors on the public gallery looking into the flats with binoculars or filming and photographing the residents going about their daily lives. Many photographs were posted on social media. The evidence provided a strong case that it was intolerable for the leaseholders to live in their flats. It was as if the residents were animals in a zoo, or indeed their apartments were some kind of live installation for those who enjoy conceptual art to savour.
The case has prompted considerable public comment, and many people side with the Tate Modern. The viewing gallery is a public good, in a public building, for the benefit of the public. Why should such an amenity be closed down because of the private interests of a few leaseholders who wanted the benefits of fully glazed façades so as to overlook London but did not want to be overlooked themselves? And it has been within this slightly class-war framing that the case has been widely reported and many strong opinions formed.
Of course, the real benefit of any ugly building having a public viewing platform or a fully glazed façade is so that you can look out at less ugly buildings. And so if those ugly buildings end up facing each other then that real benefit is lost.
But more seriously, it would appear that in the design and planning of the two buildings nobody appears to have considered this predicament as a possibility. As the judge found in the court that heard the case at first instance, nobody thought through the consequences of the platform overlooking the flats.
And regardless of the fact that the apartments were expensive with fully visible living quarters, it is unfair on any person—rich or poor—to have their private space monitored by hundreds of strangers every day. Furthermore, the leaseholders did not—to use the legal phrase—“come to the nuisance”. As the Supreme Court noted, the design, planning process and construction of Neo Bankside took place between 2006 and September 2012, while the final form of the Blavatnik Building was not completed until 2016. In other words, the leaseholders were there first.
There was therefore a conflict of rights—and this conflict had not even been considered, let alone resolved, in the planning processes of the two buildings. The Tate Modern wanted to provide a public viewing gallery as part of its new building. And the viewing, as well as being a public good, also provides a valuable revenue stream from private parties and events. The leaseholders, on the other hand, complained that their enjoyment of their properties was substantially impaired.
As half-hearted attempts by the Tate Modern to mitigate the gawping and the photographing by its visitors of the residents in the apartments failed, the conflict of rights ended up in court. In 2017—the year after the platform was opened—a claim was brought by the leaseholders. The claim was both in private nuisance and in respect of their privacy rights under the Human Rights Act. The human rights claim fell away quickly, not least because human rights protections are usually weak in the United Kingdom, especially compared with property rights.
At first instance, the judge generally accepted the evidence of the leaseholders about the extent of the problem, but he decided against them on the law. He said there should be “give and take” and that the residents could take preventative measures, of which he listed four: solar blinds, privacy film, net curtains, and even “taller plants”.
The leaseholders did not accept this “give and take” approach and appealed. But the Court of Appeal also sided with Tate Modern, this time on the basis that the law of private nuisance did not extend to “overlooking” structures. The leaseholders, however, believed this “overlooking” point overlooked their legal rights, and permission was obtained to appeal to the Supreme Court.
The Supreme Court was divided. The minority felt that the judge at first instance was correct in his “give and take” approach. In the words of one dissenting justice, it was right to assess the claims “against an objective standard involving comparison with the established usual design for a residential block in the area, with normal window arrangements. Assessed against that standard, the Tate’s operation of the viewing gallery did not involve a nuisance. The owners of the flats in Neo Bankside could not turn the operation of the viewing gallery into a nuisance by reason of the development of their own property according to a design which was out of line with the norm for the area.”
But the majority of the Supreme Court sided with the leaseholders. It did not matter that the leaseholders had glazed facades, which the majority said was not an unusual feature of modern buildings. The majority also said this was not even a case about “overlooking” in a legal sense, as the complaint was not that one building was taller than the other.
The majority described the true complaint of the leaseholders as follows: “What they complain about is the particular use made by Tate of the top floor. They complain that the Tate actively invites members of the public to visit and look out from that location in every direction, including at the claimants’ flats situated only 30 odd metres away; that the Tate permits and invites this activity to continue without interruption for the best part of the day every day of the week; and that this has the predictable consequence that a very significant number of the roughly half a million people who visit the Tate’s viewing gallery each year peer into the claimants’ flats and take photographs of them.”
In other words, it was the Tate Modern’s use of its property that was interfering with the leaseholders’ everyday use of theirs. It was also the Tate Modern’s use of its property that was unusual, and not the glazing of the flats. There is no necessity for an art gallery to have a viewing platform over its neighbours. And so even though that unusual use was a public good enjoyed by thousands of people every year, the private rights of the leaseholders still had to be respected.
The majority also rejected the trial judge’s well-meaning suggestions of net curtains and taller plants: “The claimants cannot be obliged to live behind net curtains or with their blinds drawn all day every day to protect themselves from the consequences of intrusion caused by the abnormal use which the Tate makes of its land. In circumstances where the claimants are doing no more than occupying and using their flats in an ordinary way and in accordance with the ordinary habits of a reasonable person, it is no answer for someone who interferes with that use by making an exceptional use of their own land to say that the claimants could protect themselves in their own homes by taking remedial measures.”
The majority of the Supreme Court, however, did not say that the public interest was absolutely irrelevant. In this case, the public benefit of the viewing gallery would go to the remedy: instead of a court order preventing the nuisance, there could be compensation. The court therefore did not say that the public amenity had to be closed, but that there had to be some redress to the leaseholders who could no longer enjoy their apartments.
The majority even addressed the optics of this case. The judge writing the majority opinion said “I suspect that what lies behind the rejection of the claim by the courts below is a reluctance to decide that the private rights of a few wealthy property owners should prevent the general public from enjoying an unrestricted view of London and a major national museum from providing public access to such a view.”
The judges were right to emphasise that they were unmoved by public and media clamour, but many lawyers would say that the trial judge’s approach of “give and take” was based on fairness in the circumstances, rather than any “reluctance”. Yet a “give and take” approach sometimes does not work when one party believes that their ultimate rights are not being recognised and respected, and the majority in the Supreme Court showed what can happen when the litigation push eventually gets to a judicial shove. The property rights of the leaseholders could not be extinguished just because Tate Modern was pleading the public interest in how it was using its new building.
The leaseholders failed in their human rights claim. It was only because they also had property rights that their case even got to trial, let alone appeals to the Court of Appeal and the Supreme Court. But that is how private law rights can often work. The courts system will protect those rights regardless of the optics. Now imagine if the courts were as uncompromising in their defence of human rights as they are in their defence of property rights. Imagine that the privacy rights of people would be stoutly protected, regardless of whether they own property or not.
