ABSTRACT
At first glance, the majority judgment in Fearn takes a sledgehammer to the law of nuisance and reconstructs it from new principles. However, its impact should not be overstated – its rather heterodox approach should be seen as indelibly linked to the specific and remarkable facts rather than a broader sea change in the law of nuisance. This article will approach the judgment in two parts. The first will outline the three key ways in which the Fearn judgment purports to change the law: (i) its elevation of ‘common and ordinary use’ into what seems to be a catch-all test for liability in the law of nuisance, (ii) its recognition that ‘overlooking’ can be an actionable interference, and (iii) its dismissal of any potential self-help measures at the liability stage. The second part will argue that each of these changes can be viewed as confined to the specific facts of Fearn and should be rejected insofar as they purport to deviate from the wider law of nuisance. Elevating ‘common and ordinary use’ to the sole test for liability simply does not work within the wider context of nuisance, a ‘liberty to build’ fails to explain the result in Bradford Corporation v Pickles,and the decision’s view of self-help is unjustifiably narrow.
Austin, Marlon, Haters gonna (sue the) Tate: court-based class warfare and private nuisance post-Fearn (September 13, 2024), Oxford University Undergraduate Law Journal Blog.
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