Fearn v. Tate Gallery Trustees [2024] AC 1 dealt with those types of private nuisance where there has been a ‘sensible’ interference with the use and enjoyment of land. The Supreme Court were split as to the correct approach. The majority decided that main issue was whether or not competing neighbouring land uses can be considered “common and ordinary”. The recent judgment in Nicholas v. Thomas [2025] EWHC 752 (Ch) shows that this binary approach will be adopted by judges without deference to a more conventional common law approach, applying a broad test of reasonableness. Indeed the trial judge has set out a series of ‘tests’ to be applied. The judgment is important.
The decision in Fearn
Fearn was about the Tate Gallery’s 360o viewing platform built some 30 metres from the claimants’ flats. The judge at first instance decided that the claimants’ use of floor to ceiling glass, allowing them a view over South London, meant that the viewing platform was not an unreasonable use of land: the occupants had made themselves especially sensitive to the invasion to privacy. A fair balance between the use of the two sets of properties could readily be achieved if the claimants took steps to restrict their sense of being spied upon by visitors to the platform.
In the Supreme Court, the three judges in the majority decided that “fundamental to the common law of private nuisance is the priority accorded to the general and ordinary use of land over more uncommon uses” (judgment of Lord Leggatt). Having decided that the occupiers of the flats in this part of south London were using their glass-fronted properties for an “ordinary purpose”, the burden shifted to the defendant, which could not demonstrate that the use of its land was either ‘ordinary’ or ‘necessary’ for its activities as an art gallery.
The minority considered that the majority of the judges were wrong not to adopt what might be described as the more customary approach of the common law, which has been to apply “a broader test of objective reasonableness” preferring a binary test which takes as its starting-point the question whether the claimants’, and then the defendant’s, use of land, has been “common and ordinary” (see the judgment of Lord Sales). In particular, the overriding question of reciprocity (the assessment of reasonable balance between competing uses) “cannot be reduced to a simple question whether the defendant’s use is common and ordinary”.
The decision in Nicholas v. Fearn
Practitioners who have been wondering whether judges might slip back to a more conventional approach, now have their answer in the form of the judgment of HHJ Russen KC, sitting in the Chancery Division of the High Court in Nicholas v. Thomas [2025] EWHC 752 (Ch). That answer is a resounding “no”, the approach of Lord Leggatt having now been entrenched by HHJ Russen KC by means of the adoption of a series of staged assessments (albeit that these are couched in terms of principles distilled from the majority judgment in Fearn).
The claim in Nicholas itself concerned the commercial breeding of racing falcons near Land’s End, for the Arab market. Eight allegations of nuisance were made, the first alleging the use of the defendant’s (agricultural) land between January to April 2022 for a scaffolding business, the remainder of the allegations alleging specific incidents said to have occurred on specific dates (for instance the operation of a noisy digger on 18 April 2022).
HHJ Russen KC decided that the first stage must be to decide whether or not there has been a substantial interference with the ordinary use of the claimant’s land. The question whether there has been an “ordinary” use of land should be determined by reference to the locality, i.e. the type of property within the surrounding neighbourhood.
The judge considered, then, that if a claimant’s property is not being used in some ordinary way, then a claim of nuisance should not be justified, since the owner would be increasing the burdens which the neighbour would be expected to tolerate. Lord Sales in Fearn, on the other hand, had considered this an unduly restrictive approach since it might limit the novel uses to which a claimant might put its land: a principle of ‘give and take’ would allow more flexibility in the right of landowners to use their land as they wish.
HHJ Russen KC continued that the “next stage” is to assess whether or not the defendant’s use of land is no more than an ordinary use. If that is the case and if that use is also done with proper consideration for a neighbour, then there can have been no nuisance. This second stage allows a determination to be made as to the “lawfulness” of the defendant’s conduct. Accordingly, the judge put into effect the rationale of Lord Leggatt that this approach based on the ordinary use of land is in some way more “principled” than an overall appeal to reasonableness. However, the focus has surely become, as expressed by Lord Sales, a distorted assessment one in concentrating to such an extent on the defendant’s use of land, without due consideration for the way in which a claimant has chosen to use its own land.
There is plenty in this judgment which is of interest (such as whether these were nuisances at all, rather than species of negligence as also decided by the judge, whether the damage to the falcons and their eggs can properly be described as types of physical damage to land, and whether it was appropriate to import principles of foreseeability into this type of nuisance), and it is impossible not to admire how thorough the judge has been, even if some of his conclusions merit further consideration (issues for a second post).
For many practitioners, it will be difficult not to reflect on the good sense of the observations made by Lord Sales in the minority’s written judgment in Fearn: “although questions of common and ordinary usage of land by a defendant and by a claimant may often be central in working out the application of an objective standard of reasonableness in a locale, I do not think that they are capable in themselves of providing a solution across the whole range of cases with which the law of nuisance has to deal. In my view, it is necessary to have recourse to a more general principle of objective reasonableness, as has been stated in the cases”.
In conclusion, it does look as though a new chapter has been written which will detract from what has previously been considered to be “an inextricably two-sided relationship” and one which gives excessive weight, by an unnecessarily rigid and staged process, to the importance of the assessment of the defendant’s land use and its effect on a claimant.
Gordon Wignall
