ABSTRACT
The decision of the United Kingdom Supreme Court in Fearn v Board of Trustees of The Tate Gallery is significant for various reasons. Of particular concern for some is the Court’s unanimous agreement that ‘intense visual intrusion into someone’s domestic property is capable of amounting to a [private] nuisance’. But the judgment is also significant because a majority of the Court, led by Lord Leggatt, saw fit to reframe the tort of private nuisance around a core concept of ‘common and ordinary use’. The full ramifications of this revised approach remain uncertain, although it has not been warmly received by the academy. This article argues that, although Lord Leggatt’s revised approach is unnecessary and unhelpful, it can and should nevertheless be interpreted in a manner that is broadly consistent with the existing law, according to which private nuisance involves an interference with the usability of the claimant’s land. In contrast, it argues that Lord Sales’ dissenting judgment flirts with a novel and untenable conception of private nuisance, which involves a comparison between the parties’ actual land uses. The article then demonstrates that Australian courts adopt a far more open-textured approach to nuisance than their British counterparts, which openly accounts for considerations of public policy and the collective interest. On this basis, the article concludes that Australian courts are likely to politely ignore both Lord Leggatt’s revised approach and Lord Sales’ dissent.
Iain Field, Uncommon And Unordinary: An Australian Perspective on the Fearn Decision, 5 Journal of Commonwealth Law 31 (2024).
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