Use of land

February 1st, 2023 by James Goudie KC

In FEARN v BOARD OF TRUSTEESOF TATE GALLERY (2023) UKSC 4 the Supreme Court holds that it is possible, as a matter of principle, for a private nuisance to exist where residential property is subject to visual intrusion. A nuisance is a use of land which wrongfully interferes with the ordinary use and enjoyment of neighbouring land. To amount to a nuisance, the interference must be substantial, judged by the standards of the ordinary person.

Even where there is a substantial interference, the defendant will not be liable if it is doing no more than making a common and ordinary use of its own land. What constitutes an ordinary use of land is to be judged having regard to the character of the locality, eg whether it is a residential or an industrial area.

It is no answer to a claim for nuisance to say that the defendant is using its land reasonably or in a way that is beneficial to the public. In deciding whether one person’s use of land has infringed another’s rights, the public utility of the conflicting uses is not relevant. The benefit of land use to the wider community may be considered in deciding what remedy to grant, and may justify awarding damages rather than granting an injunction. It does not justify denying a victim any remedy at all.

Comments are closed.