Updated: Feb 20
The Tate Modern art museum in London is one of the world’s most popular cultural tourism attractions, with 5.5 million visits a year. The Tate has expanded as visitor demand has grown – adding a the Blavatnik Building by architects Herzog & de Meuron, billed as “the most important new cultural building to open in the UK for almost twenty years.” According to the Royal Institute of British Architects “The chain mail brick façade is a completely new invention that allows the museum to bridge the gap between the contextual and the iconic.”
As well as being an icon in its own right, the new building has a viewing gallery, which allows visitors unrivalled views of other iconic buildings. The view quickly became a major attraction in its own right, with an estimated 500,000 to 600,000 visitors a year. At least until February 1st, 2023, when a judgement of the UK Supreme Court forced the Tate to close the viewing platform.
The action against the Tate was brought by owners of luxury flats which could be seen from the viewing platform. As the Supreme Court judgement noted “Unfortunately for the Tate, visitors to the viewing gallery can see straight into the living areas of four flats in the Neo Bankside residential and commercial development, some 34 metres away.” The claim was based on the common law of private nuisance: “Some look, some peer, some photograph, some wave. Occasionally binoculars are used. Many photographs showing the interiors of the flats have been posted on social media.”
The Blavatnik Building of the Tate ("Open and Free for All") with the overlooked flats next door (www.tate.org.uk/visit/tate-modern)
At the original trial, the judge ruled that:
“the Tate’s use of the top floor of the Blavatnik Building as a public viewing gallery is reasonable and that the claimants are responsible for their own misfortune: first, because they have bought properties with glass walls and, second, because they could take remedial measures to protect their own privacy such as lowering their blinds during the day or installing net curtains.”
The Court of Appeal also dismissed the claim, considering “overlooking” cannot in law count as a nuisance. However, when the case was taken to the UK Supreme Court, two of the five judges agreed that the overlooking could indeed be considered a nuisance, and attributed the previous judgments in favour of the Tate to:
“a reluctance to decide that the private rights of a few wealthy property owners should prevent the general public from enjoying an unrestricted view of London and a major national museum from providing public access to such a view.”
The 100 page judgement by the Supreme Court was based on a meticulous analysis of the concept of private nuisance, interference of different uses, the question of balance between competing interests, the concept of a “reasonable user” and the locality of the nuisance. Even though the original trial and appeal had found that the Tate was making reasonable use of the museum, and that people living in such a central area of London might also expect to be viewed by tourists, the Supreme Court ruled that:
“viewing of the claimants’ flats goes far beyond anything that could reasonably be regarded as a necessary or natural consequence of the common and ordinary use and occupation of the Tate’s land. Thus, the judge did not accept that, even in a part of London used partly for cultural purposes and which attracts tourists, making a viewing gallery available to members of the public is an activity which should actually be expected.”
In other words, having cultural tourists viewing your home is not something you would expect. Obviously the judge had not read the book Reinventing the Local for Tourism, where we explain that the everyday, and precisely the lifestyle of locals, is a growing focus of tourist attention.
In essence, the Supreme Court decided that as there are no other viewing platforms in that part of London and that a public viewing gallery is not necessary for the Tate, the presence of the tourists did constitute a nuisance. No matter that the museum building and the viewing platform were already planned when the flat were being built, or that the residents of the flats had exacerbated the transparency of their flats by using their galleries as living spaces. Apparently, the rights of four very wealthy residents not be overlooked by tourists outweighs the rights of the Tate to offer a viewing platform for hundreds of thousands of visitors (and also generate revenue from events held in the space). As a result of the ruling, the Tate’s “Viewing Level is temporarily closed until further notice.” So visitors will not be able to “see across the River Thames, St Paul’s Cathedral, and as far as Canary Wharf and Wembley Stadium.”
A pertinent comment from one of the Tate's own paintings (Greg Richards)
However, in the contemporary network society there is more than one way to enjoy a view. A video of the view can still be enjoyed on You Tube. This clearly shows the flats, as well as the notices posted by the Tate saying “Please respect our neighbours’ privacy”.
Tate customers will have to be content with the inside views for now (Greg Richards)