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Tort Law - Private Nuisance Summary/Problem Question Structure
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Comprehensive summary/exam notes on the topic of private nuisance in Tort Law. This document sets out a structure that can be used to answer any problem question on the topic. It sets out who can sue, who can be sued, the test for nuisance following the 2023 UKSC case of Fearn v Tate (including how...

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  • October 7, 2024
  • 7
  • 2022/2023
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Private Nuisance
Private nuisance = an unlawful interference with the use and enjoyment of land.

1. Who can sue?
Hunter v Canary Wharf – Cs were residents who complained that the erection of the
Canary Wharf Tower interfered with their TV reception and the construction created
excessive dust. Many of the Cs were mere licensees without title to the properties
they stayed in e.g., spouses, children, relatives, lodger, au pair, employees).
An action in private nuisance was brought in respect of acts directed against
the plaintiff’s enjoyment of his rights over the land.
SO – generally only a person with a proprietary interest in the land can
sue.
No distinction is made in this respect between legal and equitable interests so a
spouse with a beneficial but not legal interest in the matrimonial home can sue in
nuisance for damage to that interest.
BUT – licensees (such as lodgers and domestic employees) will not usually
be able to bring claims in private nuisance.
Same is true for children living in their parents’ homes.
2. Who can be sued?
Most obvious = creator of the nuisance.
“Continuing” or “adopting” nuisance:
Sedleigh-Denfield v O’Callaghan – trespasser laid a pipe on D’s land. D
subsequently became aware of its existence and used it for the draining of
their fields. During a heavy rainstorm, the pipe became blocked with leaves
so that water overflowed and caused damage to C’s land.
An occupier “continues” a nuisance if, with knowledge or presumed
knowledge of its existence, he fails to take reasonable means to bring
it to an end when he has ample time to do so.
An occupier “adopts” a nuisance if he makes any use of the erection
or artificial structure which constitutes the nuisance.
This case creates an exception to the standard of strict liability in nuisance in cases
involving a failure to remove a nuisance (i.e., continuing the nuisance)
In such case fault/negligence is required.
Coventry v Lawrence (No.1) – landowner living near a motocross stadium filed a
nuisance action against the stadium owners/landlords complaining of excessive noise
and dust.
A landlord would be liable if he either could be said to have authorised the
nuisance by letting the property in question or had participated directly in
the commission of the nuisance.
It was enough that the landlord had been aware of the nuisance but
had taken no steps to prevent it.
In order to succeed on the basis of authorisation by letting, a claimant would
have to show a very degree of probability that the letting of the property
would result in nuisance.
3. Interference:
Fearn v Board of Trustees of the Tate Gallery (UKSC 2023) –
The claimants owned flats in a development that was adjacent to an art
gallery run by the defendant. The living areas of the flats, whose walls were
constructed mainly of glass, were overlooked by an extension to the gallery,
which contained a public viewing gallery offering panoramic views of
London.

, The claimants brought a claim against the defendant in nuisance,
contending that the defendant’s use of the viewing gallery
unreasonably interfered with their enjoyment of their flats.
Two issues before the court:
(1) Principle Q – is overlooking capable of being a nuisance?
Links to what nuisance protects.
(2) Factual Q – is there a nuisance made out on these facts?
Test for interference.
Issue 1:
All 5 agree that the ground on which the CA decided the case was
wrong and that visual intrusion is capable in principle of constituting
a nuisance.
CA – interference with one of property rights that comes
with being an owner – e.g., Bradford v Pickles – no right to
percolating water.
Why can’t claim for obstruction to view – no right.
No right to privacy within property.
Reflects Steven’s conception of tort law – rights-
based conception.
The mere fact that one building overlooks another cannot give rise to
a claim – BUT – that is not the complaint made here.
The complaint here is that the Tate invites visitors to look out
from the viewing platform from which they can, and many
do, peer into the claimants’ flats, and allow this activity to
continue without interruption day in, day out.
There is no reason in principle why visual intrusion of this
kind cannot give rise to liability for nuisance.
Lord Leggatt – “To argue that this use of the defendant’s
land cannot be a nuisance is like arguing that, because
ordinary household noise caused by neighbours does not
constitute a nuisance, inviting a brass band to practise all
day every day in my back garden cannot be an actionable
nuisance…”
Tort of nuisance has broad ambit – nuisance protects amenity and
utility value of land.
Lord Leggatt: it follows from the nature of the tort of private
nuisance that the harm from which the law protects a
claimant is “diminution in the utility and amenity value of
the claimant’s land, and not personal discomfort to the
persons who are occupying it.”
Encompasses broad array of things.
Emanation – e.g., smell/noise.
Nothing to stop other things being a nuisance as long as
interfering with amenity and utility of land – even if nothing
emanates.
Issue 2:
Revisits/clarifies what the test is – shift in how understood test.
Gloss of reasonableness = misreading of cases in this area.
There are two elements to the test:
(1) Must be substantial, not trifling.
Lord Leggatt – objective (standard of ordinary person in C’s
position).
Reflects the fact that the interest protected by the law of
private nuisance is the utility of land, and not the bodily
security or comfort of the particular individuals occupying it.

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