Introduction
This essay critically examines the conceptualisation of ownership in the landmark case of Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 14, [2024] AC 1, focusing on the legal interpretations of privacy and property rights in the context of visual intrusion. The case, concerning residents of luxury flats near the Tate Modern who complained about visitors peering into their homes from a viewing platform, raises profound questions about the balance between property ownership and public access. This analysis will scrutinise the judgments across the High Court, Court of Appeal, and Supreme Court, evaluating how each court framed ownership and the rights attached to it. Furthermore, it will assess the varying judicial approaches to nuisance law and privacy, before concluding with a preferred perspective based on reasoned analysis. By exploring these dimensions, the essay aims to provide a sound understanding of ownership as a legal concept, acknowledging both its applicability and limitations in modern contexts.
Ownership and Privacy in the High Court Judgment
In the initial High Court decision, Mann J approached the issue of ownership through the lens of traditional property rights, dismissing the claimants’ argument that the Tate Modern’s viewing platform constituted a nuisance by way of visual intrusion. The judge held that ownership of property does not inherently include a right to absolute privacy from being overlooked, citing long-standing common law principles that a property owner must accept a degree of observation in urban settings (Fearn v Tate Gallery [2019] EWHC 246 (Ch)). Mann J argued that the claimants, by choosing to live in glass-walled flats, implicitly accepted a reduced expectation of privacy. This conceptualisation of ownership prioritises a restrictive view, limiting the scope of nuisance to physical interference rather than intangible harms like loss of privacy. While this aligns with historical precedent, it arguably fails to account for evolving societal expectations around personal space in densely populated areas. Indeed, the judgment appears to undervalue the modern significance of privacy as an element of enjoying one’s property, raising questions about the adaptability of ownership rights in the 21st century.
The Court of Appeal’s Perspective on Ownership
The Court of Appeal, in upholding the High Court’s decision, further entrenched a narrow interpretation of ownership rights (Fearn v Tate Gallery [2020] EWCA Civ 104). The majority, led by Sir Terence Etherton MR, rejected the idea that visual intrusion could generally constitute a nuisance, asserting that ownership does not confer an automatic entitlement to prevent others from looking into one’s property. The court reasoned that the Tate Modern’s platform served a public interest by providing cultural access, which outweighed the claimants’ proprietary concerns. However, a dissenting opinion by Lord Justice Lewison offered a contrasting view, suggesting that ownership should encompass protection against persistent and invasive observation, particularly when it disrupts the reasonable use of one’s home. This minority judgment highlights a tension within the court regarding the extent to which ownership includes intangible benefits like privacy. Although the majority decision reflects a pragmatic balance between public and private interests, it arguably overlooks the personal impact on the claimants, demonstrating limited critical engagement with the evolving nature of property rights.
Supreme Court’s Reconceptualisation of Ownership
The Supreme Court’s ruling marked a significant shift in the conceptualisation of ownership, with a majority of 3-2 finding in favour of the claimants (Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 14). Lord Leggatt, delivering the leading judgment, argued that ownership entails a reasonable expectation of privacy as part of the ordinary enjoyment of one’s property. The court held that the Tate Modern’s platform, by enabling constant observation into the claimants’ homes, constituted a nuisance, as it interfered with their ability to use their property without unreasonable intrusion. This approach broadens the traditional scope of nuisance law, integrating privacy as a protectable interest under the umbrella of ownership. Conversely, the dissenting judgments of Lord Sales and Lord Kitchin cautioned against expanding nuisance to cover visual intrusion, warning that it risks creating uncertainty in property law and overburdens public facilities with liability. While the majority’s reasoning reflects a more contemporary understanding of ownership, it also introduces complexity by blurring the boundaries between privacy and property rights, potentially complicating future applications of nuisance law.
Critical Analysis and Preferred Approach
Evaluating the judicial approaches across the three courts reveals a spectrum of thought on the conceptualisation of ownership. The High Court and Court of Appeal adopted a conservative stance, viewing ownership primarily as control over tangible property, with limited regard for intangible harms. This perspective, while grounded in established legal doctrine, appears increasingly out of step with modern societal values that place greater emphasis on personal privacy, especially in urban environments where physical boundaries are less distinct. The Supreme Court majority, by contrast, offers a progressive interpretation, recognising that ownership must adapt to include protection against non-physical interferences like visual intrusion. This approach arguably better reflects the reality of contemporary living, where the enjoyment of one’s home extends beyond mere possession to include a sense of security and seclusion.
Personally, I find the Supreme Court majority’s approach most compelling. Lord Leggatt’s reasoning acknowledges the evolving nature of property use, ensuring that ownership rights remain relevant in addressing modern challenges. For instance, the proliferation of public viewing platforms and surveillance technologies necessitates a broader understanding of nuisance to safeguard individual autonomy within one’s property. However, I remain mindful of the dissent’s concerns regarding legal uncertainty, as extending nuisance to visual intrusion could lead to inconsistent applications if not carefully defined in future cases. To mitigate this, clearer guidelines on what constitutes ‘unreasonable’ intrusion could be developed, balancing individual rights with public interests. Overall, the Supreme Court’s decision provides a forward-thinking framework that aligns ownership with current societal expectations, making it the most persuasive approach.
Conclusion
In conclusion, the case of Fearn v Board of Trustees of the Tate Gallery illustrates the complex and evolving nature of ownership as a legal concept. The High Court and Court of Appeal’s restrictive interpretations, focusing on tangible property rights, contrast sharply with the Supreme Court majority’s broader inclusion of privacy within the scope of ownership. While each perspective offers distinct insights, the Supreme Court’s approach is preferred for its adaptability to contemporary issues surrounding privacy and property use. This judgment not only redefines nuisance law but also prompts reflection on how ownership should be conceptualised in an era of increasing public-private tension. Future implications may involve refining legal tests for nuisance to prevent overreach, ensuring that the balance between individual rights and societal benefits remains equitable. Ultimately, this case underscores the need for property law to evolve, ensuring that ownership remains a meaningful and protective right in modern contexts.
References
- Fearn v Tate Gallery [2019] EWHC 246 (Ch).
- Fearn v Tate Gallery [2020] EWCA Civ 104.
- Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 14, [2024] AC 1.
- McBride, N. J. (2023) ‘Nuisance and Privacy: The Impact of Fearn v Tate Gallery’, Modern Law Review, 86(4), pp. 789-805.
- Wade, H. (2020) ‘Property Rights and Public Access: Balancing Interests in Urban Spaces’, Journal of Property Law, 12(3), pp. 210-230.
