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Flat owners claiming Tate Modern viewing platform violates privacy told law may NOT offer a solution

Luxury apartment owners who claim the Tate Modern viewing platform violates their privacy have been told the law may not offer any solution after taking their fight to the Supreme Court. 

Wealthy residents in four plush flats in the South Bank block have mounted a battle to close down the gallery which allowed 'hundreds of thousands' of visitors to peer into their homes.

They applied for an injunction requiring the Tate to cordon off parts of the gallery or to erect screening to block their view of the Neo Bankside development.

After losing the latest stage of their legal battle at the Court of Appeal in February last year, the owners have now taken their case to the Supreme Court.

Guy Fetherstonhaugh QC, for the Tate, disputed his opponent's argument that 'there was a right to prevent overlooking and safeguard privacy'.

He pressed that in many cases, as in this one, there are simply no solutions in law - and suggested a common sense conclusion would be to simply put up blinds.

A photograph taken from the viewing platform in 2016 shows how visitors can see into the apartments at Neo Bankside (pictured, Mail on Sunday's Charlotte Wallace showing how visible residents are)

The viewing platform seems to give a perfect view of Neo Bankside apartments (pictured) 

A graphic showing the locations of the multi-million pound flats (pictured right) and the viewing platform (left)

Timeline of the Tate Modern privacy row  

2007 - Councillors approve plans for Neo Bankside, a new £132 development with 217 flats and penthouses in four separate 'pavilions'. 

2009 - The Tate Modern receives planning permission to build Switch House, including a viewing platform. Neo Bankside did not oppose the application.  

2012 - Neo Bankside is completed. 

2016 - The Tate Modern unveils its new viewing gallery on floor 10 as part of its £260m Switch House extension. 

2017 - Residents launch a case claiming their right to privacy under the Human Right Act 1998 have been violated by visitors peering in to their flats. 

February 2019 - High Court judge Mr Justice Mann agrees there is an intrusion of privacy but says this wouldn't have happened if the flats had normal-sized windows, so dismisses the claim. 

February 2020 - The Court of Appeal backs the High Court's decision and throws out the claim. Master of the Rolls Sir Terence Etherton also denies the owners' bid for the case to be heard in the Supreme Court. 

December 2021 - The case is heard in the Supreme Court in a last-ditch attempt by the home owners to have the gallery closed.  

'As Lord Lloyd commented in Hunter, there are many wrongs which do not have a remedy and, in such cases, it is really not for the court to progress to fill the gap,' he said.

'If there is a need for the remedy, it should be Parliament that does it.'

The Hunter case involved complaints directed at the then new Canary Wharf Tower.

Quoting Lord Lloyd in the case of Hunter again, Mr Fetherstonhagh said: 'The annoyance caused by the erection of Canary Wharf must be considerable, but law does not have a remedy for everything.

'A loss which the house owner has undoubtedly suffered gives no rise to infringement of his legal right.'

The barrister for the Tate Modern continued: 'It is tempting to depart from principle out of sympathy for the plaintiff when in search for a remedy out of objectionable activity.

'But in this area of the law it is important to resist the temptation and to rely instead on the reliance on principle.'

Referencing the case of the Bank of New Zealand and Greenwood, which centred on a dispute about the intensity of light from one building to the other, Mr Fetherstonhagh repeated the suggestion of 'the judicious use of net curtains' that he made yesterday.

'The remedy the court devised was not for the defendant to rebuild its building but rather for the complainant to put up blinds in its own property.

'A common sense solution to problems of that sort.'

The residents have also complained that the viewing platform gives rise to the legal tort of nuisance.

Mr Fetherstonhagh refuted this and said: 'Nuisance protects property rights it does not protect against harm just because that harm takes place on property.

'In considering what is the harm here the Court of Appeal rightly said that the issue is not damage to a property right, it is invasion of privacy.

'The harm caused by an invasion of privacy is injury to personal feelings, distress, humiliation.

'My learned friends says there is no difference to dust.

Pictured: The viewing gallery at the Tate Modern, from which visitors can peer into the Neo Bankside apartment block 

A photograph taken from the viewing platform shows how visitors can look directly into the flats at the Neo Bankside development on London's South Bank 

The Tate Modern's new Switch House development, with Neo Bankside apartments to the left of the art gallery in central London 

'But that is a nuisance because it is the fact that the land is rendered less useful by the dust which causes it to be an invasion of a property right.

'It cannot be turned into a harm to land because the essence... of an invasion of privacy is not that land is damaged, it is, 'I feel upset that someone can see me if I don't draw my net curtains at the right time.'

'The harm is by nature personal and subjective.

'Different people value privacy different and for different reasons, unlike vibrations, dirt, smells, dust.'

Mr Fetherstonhaugh also referred to an article in the Mail on Sunday in 2017 about the escalating argument.

One resident had placed cardboard cut-outs of outgoing Tate director Sir Nicholas Serota and his family in their underwear in the window of an apartment directly opposite the platform.

'Whenever an article was published social media went mad....we say that isn't the fault of the respondent.'

Aileen McColgan, also representing the Tate, said the residents had an unreasonable expectation of privacy.

She said there had been no findings under Article Eight of the European Convention of Human Rights in Mr Justice Mann's appeal decision last year and there was 'no proper basis' to suggest there had been such a breach.

The hearing continues.