Private Law Theory

ABSTRACT
In this paper, I consider the likely significance of the decision of the United Kingdom Supreme Court in Fearn v Board of Trustees of the Tate Gallery for the future development of the English law of private nuisance. There is much to be welcomed in Fearn, not least the Supreme Court’s resolute adherence to the conception of private nuisance as a property tort, and its recognition of the explanatory force of this analysis. Also of importance is the Supreme Court’s approach to the scope of private nuisance, and in particular its rejection of the notion that there are certain types of interference with the use and enjoyment of land that are excluded from the ambit of the tort, and its acceptance that visual intrusion is capable of amounting to a private nuisance. Although it is acknowledged that these aspects of the decision in Fearn may cause difficulties, much will depend on the approach of the lower courts to these issues in later cases. When it comes to the majority’s treatment of the central question of undue interference, the picture is a mixed one. While some aspects of that approach are to be welcomed, it is argued that it was a mistake to reject the extension of the principle that the gravity of the interference with the claimant’s land is assessed objectively to the design and construction of the buildings on the land, and to rule out consideration of possible self-help measures on the part of the claimant. Finally, the emphasis which the majority in Fearn place on the common and ordinary use of both the claimant’s and (particularly) the defendant’s land is, it is argued, contrary to both principle and authority, and will inevitably give rise to significant problems going forward. Consideration is also given to how this question of common and ordinary use can be incorporated into the nuisance analysis.

Donal Nolan, Private Nuisance after Fearn v Tate Gallery, 5 Journal of Commonwealth Law 31 (2025).