In the UK, lawsuits to resolve alleged neighbor nuisance cost ten cents. Some – over overhanging trees or leylandii hedges that block the sun – make the local press. However, few have ever included the inches column devoted to Fearn v Tate.
After a six-year legal battle, the Supreme Court of the United Kingdom has now ruled in favor of five neighboring residents who have sued London’s Tate Modern for invading their privacy with its viewing gallery looking directly into their homes.
The Tate’s administrators are now faced with the option of closing or shielding the viewing gallery. This is despite the Supreme Court finding in the same ruling that it is a perfectly “fair use” of the land, and that allowing visitors a 360-degree view of the capital is of “public benefit”.
Violation of privacy claim
In 2017, five residents of the neighboring Neo-Bankside project sued the Tate for invasion of privacy. Marketed as a “world-class” development, Neo-Bankside has floor-to-ceiling windows designed to maximize light and take advantage of views of the Thames. The Blavatnik extension of the gallery, meanwhile, included an observation deck. The residents said they were subjected to close and oppressive surveillance by museum visitors armed with phones, cameras and sometimes binoculars.
Previous cases had determined that you could prosecute under the Violation and Nuisance Act for entering airspace near your property. Urban planning law also considers neglect and loss of privacy as grounds for refusing a building permit.
However, in his 2019 ruling, Supreme Court Justice Anthony Mann pointed out that the Tate obtained planning permission for the viewing platform before Neo-Bankside was completed. In other words, the residents would have known about this before moving in. He recommended installing net curtains.
This ruling implied that wealthy residents who colonized the urban air had to recognize that they are not only in the city, but also of it. It didn’t necessarily set a precedent. But it did suggest that the property rights of the owners of glass-fronted flats do not necessarily extend to “lower layers” of air rights, or the right to block others from viewing.
Mann has now been cast aside, the law back in line with the rich and powerful. The judgment of the Supreme Court confirms that overlooking a spectator gallery is indeed a form of visual intrusion. And it rejects Mann’s assessment that the owners of the flats themselves had a responsibility to reduce the nuisance.
In theory, this could lead to a series of private nuisance lawsuits. Residents of high-rise buildings could now say that they must be protected against nuisance from looking in and thus shield existing buildings. Similarly, planning officials may be inclined to place more weight on overlook as a material consideration.
Currently, drone flights at a “reasonable altitude” enjoy a legal defense against claims of nuisance and trespass, under the terms of the Civil Aviation Act of 1982. But if concern about being overlooked extends to the disembodied gaze of the unmanned drone camera, we can easily imagine a future city characterized by no-fly zones around the towers of the super-rich.
Gentrification of the air
In the 1950s and 1960s, tower blocks were reserved for social housing tenants. Such “streets in the sky” were subsequently maligned as places of social malaise.
Today’s high-rises, on the other hand, are built for wealthy investors. Social housing, if there is any, is confined to the lower levels, sometimes behind what is known as a “poor door”.
Spectacular views are the big draw. Developers carefully price each apartment based on height, size and aspect. This ‘luxury’ of the sky goes perversely with the rise of shrinking housing for the working poor, often literally overshadowed by these prestigious towers.
The Fearn v Tate judgment has affirmed that inner-city residents should expect to live side-by-side with their neighbours, while implying different types of views. Inviting people to look out and photograph from a building’s observation deck is qualitatively different from one building simply overlooking another.
The Supreme Court judgment refers to an obscure 1341 case in which a London fishmonger had to remove a tower on his property because neighbors thought it was a nuisance. It argues that the intensity of interference is now magnified by the fact that people have smartphones with cameras.
Some have concluded that the ruling is not just about the oversight, but also about the invasion of privacy associated with sharing photos on social media. But since any neighbor can take pictures of other people’s property, should the precautionary principle apply now?
This could lead those who can afford to take private action to resort to visual intrusion to prevent others from even having the opportunity to take pictures. It could lead to further privatization of airspace, which is particularly worrying in cities like London, where the urban commons are increasingly being privatised.
A city where “sky people” can escape surveillance while “street people” have to live with the constant scrutiny of drones, CCTV and facial recognition systems may sound dystopian. But given the rampant financialization and corporatization of our cities, who knows how far real estate owners will go to protect the value of their assets?
This article is republished from The Conversation under a Creative Commons license. Read the original article.
Philip Hubbard does not work for, advise, own stock in, or receive funding from any company or organization that could benefit from this article, and has not disclosed any relevant connections outside of their academic tenure.