The scope of the tort of private nuisance

Fearn and Others v Board of Trustees of the Tate Gallery [2023] UKSC 4

The decision of the Supreme Court in Fearn and Others v Board of Trustees of the Tate Gallery [2023] UKSC 4 is of considerable significance for the tort of private nuisance. In his majority judgment Lord Leggatt re-stated the "core principles" of the tort and held that a visual intrusion into the claimant's property can constitute a nuisance where the intrusion is sufficiently serious and the use which the defendant is making of its land is not the common and ordinary use of the land. Although the majority found that the defendant had committed the tort, the issue of the remedy to which the claimants were entitled was remitted for decision to the Chancery Division. Lord Sales dissented and in doing so he indicated his concern that the approach of the majority may create difficulties for developers in the future in the sense that the approach was not even-handed between the claimants and the defendant, thus, leaving developers potentially exposed to a claim in private nuisance from claimants who object to the proposed (or actual) development.