Fearn and others v. The Board of Trustees of the Tate Gallery  EWHC 246 (Ch)
40 years ago, Southwark Council built a block of 120 flats in Hopton Street, adjacent to the soon to be decommissioned Bankside power station. The flats had river frontage and views over the Thames, and, at £37 per week, the highest rents of any council housing in the borough. There was local concern that the scheme would be treated as a “prestige” development, rather than let in the normal way to people on the council’s waiting list for housing. Falcon Point still stands in Hopton Street, but its residents no longer live in council flats next to an obsolete power station. Many exercised their right to buy under legislation enacted shortly after the flats were built. Both they and those who came after them, and the remaining local authority tenants, now occupy expensive riverside apartments adjoining a world-famous art gallery - the Tate Modern, created out of the shell of the former power station. Other, taller, glassier, blocks of flats have been built behind and around them, and the residents of Falcon Point now have not only a view across the Thames from the front of their flats similar to that from the restaurant at the top of the Tate Modern, but into the lives of their neighbours through the large windows of the more recently built blocks of flats behind them.
The Tate Modern, which has drawn visitors in immense numbers since it opened in 2000, has itself extended, with its pyramid-shaped Switch House attached to the south east of the original Bankside power station building, and excavated Tanks beneath, opened in 2016. As is now well-known, after the Switch House opened, some of the owners of flats in Neo Bankside, an adjacent development of four steel and glass hexagonal pavilions, complained that onlookers and photographers on a public viewing platform which wraps around the entire tenth floor of the Switch House, were intruding on their privacy in their homes. The buildings, which were planned and built at around the same time, are close together — no more than 34m at the closest point, and the flats are largely glazed, making their interiors extensively visible. The complaints could not be resolved by discussion or mediation, but led to litigation in the High Court and a trial in November 2018. The flat owners’ claim failed, as recorded in a judgment published on 12 February 2019. This judgment may, or may not, be the end of the legal story.
The decision of the High Court
The judge who decided the case, Mr Justice Mann, said that it was possible, in principle, for the law of nuisance, which is the law that restrains interference with someone’s right to enjoy their property, to protect people’s privacy in their own homes from this kind of intrusion. But he went on to say that this principle would not protect these particular people, in this particular place, from this particular intrusion. He said that the consequences of the way in which visitors to the Tate Modern used the viewing gallery, intrusive though it was for the owners of the flats and their families and visitors, was something which they should be expected to put up with “in a modern urban, cultural tourist-attracting environment”, and take steps to mitigate for themselves:
Susceptibilities and tastes differ, and in recognition of the fact that privacy might sometimes require to be enhanced it has become acceptable to expect those wishing to enhance it to protect their own interests. I refer, for example, to net curtains.
No English court has previously had to consider a precisely comparable case, but the courts have long recognised that whether or not something is a nuisance in law is highly sensitive to both activity and locality, and activities and localities change over time. In the words quoted by the judge from a Victorian case: “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. That case in fact had nothing to do with either Belgrave Square or Bermondsey, but involved neighbouring commercial activities in Wimpole Street in the smart West End residential and medical district of London, in the 1870s, a time its facts vividly evoke. On one side of the party wall, the owner of a confectionery business had a commercial kitchen with large and noisy mortars and pestles fixed to the wall. These were used for breaking up hard blocks of sugarloaf, in the days before granulated or cubed sugar existed. On the other side of the party wall, a doctor built a consulting room, and found himself unable to diagnose his patients through auscultation, as the noise of sweet-making made it impossible for him to hear their heartbeats through his stethoscope. The confectioner had no defence to the nuisance caused to the doctor. With a certain irony, modern Wimpole Street is better known for dentists than for sweetshops.
“Such a panoramic view of London is rather splendid (particularly over the Thames) and members of the public will find it very attractive, though differing views were expressed in the case about the merits of the view of south London.” paragraph 5 of judgment in Fearn v. Tate Gallery
It is not my intention to add to what I am sure will become copious and well-informed legal commentary on the Tate decision itself, but rather my impression of it as a Londoner interested in art and architecture and the changing life of the city. Most of my memories of growing up to enjoy looking at paintings and sculpture are indissolubly linked with many visits with my mother to what is now the Tate Britain: from Blake’s visions of Albion to Andy Warhol, and from Millais’ flower-strewn drowned Ophelia, posed by Rossetti’s future wife, Lizzie Siddall, in a bathtub in 1851, to the shimmering modernity of Hockney’s “Mr and Mrs Clark and Percy”, the very picture of the zeitgeist of fashion and beauty in London in 1970. It’s not only a portrait of a couple, but of the fashionable interior of the day: a flat in a white stucco house in a garden square in Notting Hill, with up-to-date furnishing, luminous and luxurious, a room to walk in barefoot across a shagpile rug.
Perhaps because childhood and adolescent impressions can be deeply held, (and with the exception of Rothko’s great sombre Four Seasons paintings, which I think better displayed than they were in their former home), I have never felt quite the same way about the permanent collection housed in the Tate Modern and the way it is shown there. Tate Britain is and was at its heart a collection of British art, but of British art increasingly influenced by modern art in Europe and America and in my mind, they all still belong in one building. And I instinctively prefer the traditional biographical or chronological arrangement of galleries to the “thematic hang” of the Tate Modern. But, like millions of other people, I’m drawn to the Tate Modern as a place, admiring its transformation from a derelict power station into a kind of secular cathedral, with its spacious turbine hall interior and tall brick chimney. It’s often the destination of a Friday or Saturday evening walk through the City and across the Millennium Bridge, the lights on each embankment alternating with the flowing darkness of the river, looking back across the bridge to the dome of St Paul’s.
Knowing the Tate galleries, and having lived in London virtually all my life, I read the claim between the flat owners and the Tate as one which is eloquent of the zeitgeist. On one side are the residents of high-rise flats of a kind which have sprung up as a desirable luxury in the 21st century, and on the other side, a modern art museum and its visitors, drawn to the view outside it, and to being part of a museum spectacle themselves, as much as to what is inside it. And between them both, a world where the boundary between public and private life has in the past decade or so been shifted and eroded by smartphone cameras and social media, where anyone can create an online gallery visible to the world, not of art in the conventional sense, but of all sorts of aspects of the daily lives of people in their homes. The judge who decided the case himself reviewed as part of the evidence various photographs taken of the flats from the viewing gallery and posted on social media, with the hashtag #noprivacy, and comments on the fishbowl visibility of the residents’ lives, the hashtag and comments themselves only serving to throw their subjects deeper into the worldwide fishbowl of Instagram. As the judge said:
A significant number of people peer photographically into the interiors of the flats and find them interesting . . . people are interested in what goes on in the flats….some look, some peer, some photograph, some wave. The occasions of obscene gestures are probably very rare . . . the level of interest is such that a homeowner would reasonably regard to be intrusive.
And as he concluded, that:
The developers in building the flats, and the claimants …who chose to buy the flats, have created or submitted themselves to a sensitivity to privacy which is greater than would the case of a less-glassed design. It would be wrong to allow this self-induced incentive to gaze, and to infringe privacy, and self-induced exposure to the outside world, to create a liability in nuisance.
From Babylon to Bankside
Historically, the urban British in their domesticity have not taken to blocks of flats in the same way as the inhabitants of many cities in continental Europe and America. In E M Forster’s 1910 novel Howard’s End, his character Margaret Schlegel speaks with disdain and fear of the redevelopment of her home to build “Babylonian flats”:
The Londoner seldom understands his city until it sweeps him, too, away from his moorings, and Margaret’s eyes were not opened until the lease of Wickham Place expired. She had always known that it must expire, but the knowledge only became vivid about nine months before the event. Then the house was suddenly ringed with pathos. It had seen so much happiness. Why had it to be swept away? In the streets of the city she noted for the first time the architecture of hurry and heard the language of hurry on the mouths of its inhabitants — clipped words, formless sentences, potted expressions of approval or disgust. Month by month things were stepping livelier, but to what goal? The population still rose, but what was the quality of the men born? The particular millionaire who owned the freehold of Wickham Place, and desired to erect Babylonian flats upon it — what right had he to stir so large a portion of the quivering jelly?
The creation of the mansion flats of late Victorian and Edwardian London played as effective a verbal trick as the #noprivacy hashtag on social media, for they were not houses, but the word “mansion” and a postcode prefixed by W or SW gave an important sense of genteel proprietorship. The advertising for Queen Anne’s Mansions in Victoria Street emphasised its “high class”, and “luxurious” aspects, and the fact that the flats overlooked Buckingham Palace, as well as the various amenities and services offered to residents. Queen Anne’s Mansions was originally the tallest residential building in Britain, 160 feet at its highest part in 1890, and its building was much opposed throughout the period of its development and afterwards, as “monster blocks of dwellings” and “Babel-like structures”, “an eyesore”, “a scandal”, “the erection of a gigantic slum dwelling for the rich”. One mitigating factor was the view, which allowed those who lived in the top flats to see the city spread out like a map beneath them and breathe the air above the impurities of smoke and fog at street level. The residential skyscraper towers of the 20C also had panoramic views, but were initially largely built for social housing, not for wealth and exclusivity.
The steel and glass Neo Babylonian flats of Neo Bankside, “arranged to provide residents with generous accommodation, stunning views and maximum daylight”, with their hanging “winter gardens” in the angled “prow” of each pavilion, attract a different kind of public opprobrium, but with an echo of the Victorian castigation of “a gigantic slum dwelling for the rich”. This is disapproval for the ultra wealthy non-domiciled who buy, but scarcely inhabit properties in developments of this type, to the exclusion of the less well-off but more permanent inhabitants of the city. In the words of Catherine Slessor, former editor of the Architectural Review, the Neo Bankside flats are
Cross-gartered silos of stratospherically priced non-dom accom depressingly emblematic of how London is turning into a coarser version of Paris.
As for the development of the modern and contemporary art gallery which is their nearest neighbour, in an interview in the Guardian to mark 10 years of the Tate Modern, its director, Sir Nicholas Serota, answered the question “Has art primarily become a form of entertainment” with this historic parallel:
No, but I was looking at something the other day that reminded me that, in the mid-19th century, Charles Eastlake, director of the National Gallery, spoke to a parliamentary select committee about how he kept seeing people in the National Gallery having picnics. He found it extraordinary that they had come in for reasons other than looking at art. The same kinds of complaint are made about people at Tate Modern. But they are here.
The truth of that is very noticeable to any visitor to Tate Modern. The building, and the spectacular nature of the changing displays in its Turbine Hall, have always attracted visitors for their own sake. People have always photographed these, because their originality and scale invite image-making, and because the Tate Modern’s almost 20 years of life has also coincided with the rise and rise of digital photography, from the first compact cameras to the ubiquitous smartphone.
The smartphone and social media have also led to the embrace of another neologism, the “museum selfie”. It seems curious, and somehow wrong to a person who has grown up believing that the point of going to an art gallery is to look at art, to turn looking inside out, or rather, outside in, in this way. But the museum selfie is now even the subject of academic theorising about “performative spectatorship”. These are the trends in exhibition-ism that have led to the crowds on the Tate Modern’s viewing gallery photographing the interiors of the Neo Bankside flats with as much or more interest as the view in the opposite direction, and which have converged with the developers of Neo Bankside’s creation of what the judge described as
… this self-induced incentive to gaze, and to infringe privacy, and self-induced exposure to the outside world.
Drawing a veil between art and life
The judge’s suggestion that the residents of Neo Bankside should consider net curtains is not an original one. It was first made by the Tate’s director Sir Nicholas Serota, in September 2016, after the residents’ initial complaints, but before the legal claim commenced. His suggestion was criticised for its flippancy by a Southwark councillor, who retorted:
“Would he be saying the same thing if it was a council flat?
and by a correspondent to the Guardian, the writer Catherine Pepinster, who wrote in support of restricting access to the viewing gallery:
“Sir Nicholas Serota’s notion that these people should put up net curtains is as naff and as likely as him installing … popular prints form Woolworths’ heyday, in Tate Modern. He seems to think that people living in an urban centre should become suburban”
Grayson Perry told the BBC that net curtains were “a perfect storm of class taste, the strongest of class signifiers”, echoing Jilly Cooper’s division of “Nets” and “Have Nets” in her book, Class, where she firmly asserted that the upper classes never had net curtains as mansions at the end of a carriage drive needed no privacy, and “the upper-middles, aping the upper classes, don’t have net curtains either”. Traditionally, as Catherine Pepinster pointed out, net curtains are associated with suburbs, or with older inner-city houses without front gardens to distance them from the street. And with net curtains comes not only “the strongest of class signifiers”, but an entire activity of “curtain twitching” and the persona of the “curtain twitcher”, the figure who watches the street outside for litter, milkmen or neighbourhood adultery, whilst remaining unseen behind the net curtain at the window. But sales of net curtains have been in decline for nearly as long as the Tate Modern has been open. In 2007, the Evening Standard reported on the fall in sales since 2004 and asked (inevitably) “Is it curtains for curtains”, saying:
Interior designer and TV presenter Linda Barker is delighted that curtains are losing ground at last. ‘I’m glad to be seeing the back of the net curtain, because they really should be banned from the home,’ she said. ‘They are really rather ghastly and invariably not white, instead they are usually a dull grey. I find it quite hard to think of any home they look good in.’
The councillor’s hypothetical question about whether Sir Nicholas Serota would say the same thing about a council flat was not publicly answered. But it’s implicit in the judgment in the Tate Modern case, that the judge would say the same thing if the claimants in Neo Bankside lived in council flats, like the original residents of Falcon Point, a building in fact not dissimilar to the hypothetical less-glazed structure that he considered in his analysis of liability in nuisance.
Perhaps there will be now be a zeitgeist for net curtains?
And the Tate might distract those who have come to photograph themselves peering at the view of the everyday life of the residents of Neo Bankside, or gazing into the mirror pool of their smartphone and Instagram, by displaying its Dali painting of the metamorphosis of Narcissus instead.
 Referred to in the judgment as the Blavatnik Building
 Sturges v Bridgman (1879) 11 ChD 852, 865
 Various sources, quoted in “’Babylonian Flats’ in Victorian and Edwardian London” by Richard Dennis of University College, London, published in the London Journal vol 33 no 3 November 2008 pp233–247 http://discovery.ucl.ac.uk/14487/1/14487.pdf