A group of homeowners whose flats are overlooked by the Tate Gallery have lost their claim that their privacy was being infringed by tourists who were able to see into their balconies.

The flats are in a development close to the Tate Modern art gallery in central London. Their living areas look directly on to a viewing gallery open to visitors to the Tate Modern, providing a panoramic view of London.

The flats have a distinctive appearance, with winter gardens with wall-to-ceiling windows. The winter gardens had been conceived by developers as a form of indoor balcony, but the claimants used them as part of their living accommodation.

The other living areas are also extensively glassed. Visitors using the gallery have an uninterrupted view of the living areas of the flats.

The owners alleged that they were the subject of scrutiny by many visitors and had been photographed and observed through binoculars. They sought an injunction requiring the Tate Modern to close the relevant part of the gallery.

The court found against them. It accepted that a significant number of visitors displayed interest in the interiors of the flats that was more than fleeting or passing. This was displayed either by a degree of peering or study, with or without photography, and very occasionally with binoculars. The intrusion was a material intrusion into the privacy of the living accommodation.

However, the locality was an inner-city urban environment with a significant amount of tourist activity.

An occupier in that environment could expect less privacy than a rural occupier might. The operation of an art gallery or a viewing gallery was not an inherently objectionable activity in the neighbourhood.

The viewing gallery allowed people to view the interior of the flats, but that was not its purpose. If the claimants had lived in flats designed with less glass, they would not have a nuisance claim because their flats would not be likely to attract the external viewer in the same way.

In choosing to buy those flats, the claimants had submitted themselves to an increased sensitivity to privacy. It would be wrong to allow that self-induced exposure to the outside world to create a liability in nuisance.

Further, the winter gardens had been conceived as a form of internal balcony, and one did not expect as much privacy on a balcony. By moving their living activities into that area, the claimants had created their own additional sensitivity to being overlooked.

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