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Supreme Court restates principles of private nuisance

Practitioners at all levels will be interested to note the Supreme Court’s judgment, handed down today, in Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4.

Readers will recall that the case concerns a claim in private nuisance brought by the owners of glass-walled flats situated adjacent to the viewing gallery of the Tate Modern. Visitors to the viewing gallery (many hundreds of thousands of them every year) can and do peer into and photograph the interiors of the flats from a short distance away.

The owners were unsuccessful in both the High Court [2019] EWHC 246 (Ch) and Court of Appeal [2020] EWCA Civ 104. In a 3-2 split the Supreme Court has now found in the owners’ favour.

In re-stating the core principles in the leading judgment Lord Leggatt (with whom Lords Reed and Lloyd-Jones agreed) firmly rejected any suggestion that considerations of ‘reasonableness’ or ‘reasonable user’ form part of the test for private nuisance [19—21], save insofar as they are shorthand for the application of the true principles [29].

As to those principles, the first question is whether the defendant’s use of land has caused a substantial interference with the ordinary use of the claimant’s land [21]. That is well-known; the point of interest is the court’s reiteration that ‘ordinary use’ cuts both ways such that “… even where the defendant’s activity substantially interferes with the ordinary use and enjoyment of the claimant’s land, it will not give rise to liability if the activity itself is no more than an ordinary use of the defendant’s own land” [27]. ‘Reasonable user’ therefore refers to ordinary use of land, not reasonable use of land [29]. In like manner ‘reasonableness between neighbours’ means that X cannot object to Y’s ordinary use of land, because X would expect to be able to make ordinary use of her own land, and she cannot demand of Y behaviour which she would not allow Y to demand of her [34]. What constitutes ordinary use of land is judged with regard to the character of the locality, as will be familiar [38].

By contrast Lord Sales in his dissenting judgment (with which Lord Kitchin agreed) preferred to emphasise the continued centrality of “… the objective principle of reasonable user (“give and take”) …”[166], [225] and disagreed that ‘reasonable user’ can be “reduced to a simple question whether the defendant’s use is common and ordinary” [226].

Both judgments contain many other jewels:

Article written by Frederick Simpson

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