Private Law Theory

ABSTRACT
This Note describes the key doctrinal developments in the Fearn decision and criticises two of these developments: the use-design distinction, and the privileging of the ‘common and ordinary’ uses of land over ‘abnormal’ uses of land. This Note argues that the use-design distinction is artificial and therefore the United Kingdom Supreme Court’s effective insulation of architectural design choices from ‘reasonableness’ review may give rise to unbalanced and unfair results as it did in Fearn itself. This Note also considers the implications of privileging ‘common and ordinary’ uses and, in particular, how a dispute between two ‘abnormal’ uses might play out under this new regime; it considers that Fearn should have been viewed as a clash between two competing ‘abnormal’ uses, and that a broad-based ‘give and take’ principle should have applied to balance two competing, but fundamentally different, ‘abnormal’ uses.

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Ortega, Mark, Overlooking Uncommon Buildings – Fearn and others v Board of Trustees of the Tate Gallery (March 1, 2024), Singapore Journal of Legal Studies, March 2024, pp 181-196.