After a lengthy legal battle, luxury apartment owners who claimed that the Tate Modern viewing platform infringed their privacy were told by the Supreme Court that the law might not provide a solution. 

Four wealthy residents of the South Bank block are fighting to shut down the gallery that allowed thousands of people to view their houses.

The Tate was required to either erect screening or cordon off certain areas of the gallery to prevent them from seeing the Neo Bankside developments.

The owners lost the Court of Appeal’s latest phase of the legal fight in February 2013. They have since appealed to the Supreme Court.

Guy Fetherstonhaugh (QC), for Tate, challenged his opponent’s argument that there was a right “to prevent overlooking and protect privacy”.

He said that many cases such as this are not possible to solve in law and suggested that a more common-sense conclusion is to 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)

An image taken at the viewing platform in 2016 shows the ability for visitors to see inside the Neo Bankside apartments. (pictured, Mail on Sunday’s Charlotte Wallace) This photo shows the visible residents.

This viewing platform appears to offer a great view of the Neo Bankside apartments as shown (pictured). 

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

The graphic below shows the location of multi-million pound flats and the viewing platform.

Timeline of Tate Modern’s 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 gets planning permission for Switch House construction, which includes a viewing deck. Neo Bankside didn’t oppose the application.  

2012 – Neo Bankside has been completed. 

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

2017 – A case is filed by residents alleging that visitors have entered their homes and violated their privacy rights under the Human Right Act 1998. 

February 2019, Mr Justice Mann, High Court judge agrees with the intrusion but states that it would not have happened if there were normal-sized windows. So the case is dismissed. 

February 2020 – The Court of Appeal reverses the High Court decision and rejects the claim. The Supreme Court is denied the request of the owners to hear the case in Master of the Rolls Sir Terence Etherton. 

December 20,21 – In a desperate attempt to close the gallery, the Supreme Court hears the case.  

“As Lord Lloyd stated in Hunter,” there were many wrongs for which no remedy exists and it was not the duty of the court in these cases to attempt to make up the gaps.

“If there’s an urgent need, Parliament must provide the solution.”

Hunter involved allegations directed at Canary Wharf Tower, which was then being built.

Again quoting Lord Lloyd from Hunter, Mr Fetherstonhagh stated that the inconvenience caused by Canary Wharf’s construction was significant, however, law doesn’t provide a solution for all.

“An unquestionable loss suffered by the property owner does not constitute an infringement of his legal rights.”

“It’s tempting to abandon principle in sympathy with the plaintiff, when you are seeking a remedy for objectionable activities,” continued the Tate Modern barrister.

“But, in this area law it is important not to succumb to temptation but to instead rely on the principle.

Fetherstonhagh referred to Greenwood and Bank of New Zealand’s case, where there was an issue about how intense the light is from the buildings. He reiterated yesterday’s suggestion of using net curtains.

The court ruled that the remedy was for the complainant, not the defendant to rebuild their building. Instead the complaint should put up blinds within its property.

“A common sense approach to solving problems such as these.”

Residents also complain that the viewing platform creates the tort of nuisance.

Fetherstonhagh rebutted this claim and stated that while Nuisance may protect property rights, it doesn’t provide protection against harm simply because harm occurs on property.

“What is the harm? The Court of Appeal has rightly ruled that this isn’t damage to a property, but an invasion of privacy.

An invasion of privacy may cause harm to private feelings, distress, or humiliation.

“My friends who are wise say that dust is the same as dirt.

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

Pictured is the Tate Modern viewing gallery, which allows visitors to see the Neo Bankside apartment block from the window. 

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 viewing platform allows visitors to view directly the Neo Bankside flats on London’s South Bank. This photograph was taken by the viewer. 

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

New Switch House at Tate Modern, featuring Neo Bankside apartments just left of central London’s art gallery. 

“But that is not a nuisance. It is because dust makes the land less productive, which is what causes it be an invasion to a property rights.

It cannot be made into harm to the land, because it’s not the essence of invasion of privacy.

“The harm that you do is personal, subjective and by nature.”

“Different people are concerned about privacy differently and have different motives.

Fetherstonhaugh also mentioned an article published in the Mail on Sunday, 2017 regarding the escalated argument.

One resident had put cardboard cutouts from Sir Nicholas Serota (outgoing Tate director) and his family, wearing their underwear, in the apartment window directly in front of the platform.

“When an article was published on social media, ….we said that this isn’t the respondent’s fault.

Aileen McColgan also represented the Tate and stated that residents have an unreasonable expectation for privacy.

Her assertion was that Mr Justice Mann appealed under Article Eight of European Convention of Human Rights and she had not found any violation of those rights.

Continue the hearing