It is worth looking at how the law on private nuisance is being applied following the Supreme Court’s pronouncement in 2023 in Fearn v. Tate Gallery Trustees [2023] UKSC 4, [2024] AC 1.
In Fearn, Lord Leggatt JSC wrote a judgment setting out the relevant principles by which a private nuisance should be judged (in the form, that is, of private nuisance which deals with ‘sensible’ injuries such as noise, duty and ‘looking-in’). Two justices agreed with him, but Lord Sales wrote a separate judgment which stated that this “alternative approach does not affirm established principle, but instead would constitute a major change in the law”. One other JSC agreed with Lord Sales.
Fearn was the case about the 360 degrees viewing platform at Tate Modern, built in close proximity to (and at the same time as) the predominantly glass-fronted flats occupied by the claimant and built right up against the platform.
Now that we have at least two well-reported cases from the High Court which apply Fearn, it is worth checking out how Fearn is being applied in practice. How should these cases be pleaded and investigated? What evidence may be needed?
Two new cases and the approach in Fearn
First there is Nicholas v. Thomas [2025] EWHC 752 (Ch) (8 April 2025). This concerned very sensitive gyr falcons and their eggs and chicks which were sold on for the purpose of racing in the Middle East and elsewhere. This activity took place on agricultural land in the west of Cornwall, where the defendant owner of the land started a scaffolding business and undertook building works near the claimants’ aviary. The case was pleaded in the alternative in negligence.
The second is Andrews v. Kronospan Ltd [2025] EWHC 2429 (25 September 2025) which was a group litigation case involving allegations of dust nuisance from operations at a major wood recycling plant in a large village in North Wales (Chirk). Very broadly speaking, the wood recycling plant occupied the western (or north western) half of the village, whilst the claimant lived in residential dwellings on the western (or north western) side. The plant had a number of open bins containing broken wood and dust (picked up and deposit by wind), and it was subject to occasional ‘abnormal’ emissions in the event of the failure of items of machinery.
In Fearn, Lord Sales had objected that Lord Leggatt’s judgment elevated one factor (i.e. whether the defendant’s use of its land is “common and ordinary”) to unjustified prominence. He judged that the modern authorities on private nuisance applied “an objective test of reasonableness informed by the standards of the locale” (para.245).
Lord Leggatt thought that “the common law aspires to be more principled than this” and his response was to establish a “first question which the court must ask”, which was “whether the defendant’s use of land has caused a substantial interference with the ordinary use of the defendant’s land (see paras.21 and 24). As a rider to this, he stated that “an occupier cannot complain if the use interfered with is not an ordinary use” (para.25).
On the other side of the coin, Lord Leggatt went on: “even where the defendant’s activity substantially interferes with the ordinary use and enjoyment of the claimant’s land, it will not give rise to liability if the activity is itself no more than an ordinary use of the defendant’s land” (para.27). All of these principles were framed within the language of a “test” needing to be applied in order to reach a conclusion.
On the face of it, then, and leaving aside the requirement that an interference needs to be “substantial” (which is not contentious), there is a preliminary test whether or not the use of the claimant’s land is an “ordinary” one. If it is, then the defendant has a good defence.
The judges in Nicholas HHJ (HHJ Russen KC) and in Andrews (HHJ Stephen Davies) have adopted and applied these principles enthusiastically and without qualification. See item (4) of the judge’s list at para.53 of the judgment in Nicholas and paras.68 and 69 of Andrews.
One of Lord Sales’ objections to Lord Leggatt’s approach was that it excluded the possibility of a more ‘nuanced’ approach taking into account all relevant factors (the very point about which Lord Leggatt complained since he considered that this led to uncertainty), especially the consequences where a claimant might be particularly sensitive, or able to take steps to protect itself against the nuisance. The judge at first instance in Fearn thought, for instance, that the claimants could use blinds against in-lookers, and he also noted that they had made the front part of their flats even more susceptible to nuisance by using them not as they had been intended (as mini-viewing areas), but as additional living quarters.
This outcome played out in Nicholas, where the judge dismissed the submission by the defendant that gyr falcons are exceptionally sensitive creatures to have been kept on this land in Cornwall. He decided that it was as good a place as anywhere, which was an end of the matter.
In both cases the judges had to devote a significant part of their judgments to the question what is meant by the ‘locality’ of the area (described now as the ‘locality principle’). This is the consequence of Leggatt JSC’s judgment, since the question whether there has been an “ordinary” use of land can only be determined by reference to the local area (whatever that may prove to be).
In this context, the judge in Nicholas found himself investigating those facts which, pre-Fearn, were relevant to the question whether there was a “reasonable user” of land and whether the controlling element of ‘give and take’ applied (for instance whether the use by the defendant of his land was a temporary one).
The same can be said in respect of the judgment in Andrews: indeed, the judge in this case seems to have invented a principle of “ordinary user” to describe Lord Leggatt’s two tests (picking up a single rather throwaway comment from the judgment in Fearn).
At the same time, however, the judge in Andrews also thought that the ‘locality principle’ is appropriate to describe the question whether a defendant is entitled to rely on its own emissions in determining the nature and character of the area (a different question raised by Lawrence v. Fen Tigers [2014] AC 822, in which the justices also gave conflicting answers).
HHJ Stephen Davies decided that there had been gradual changes in Chirk (up to 2000), all prior to the commencement of the claim period and that nothing had changed until after the close of that claim period, with the result that the baseline for considering whether or not there was a nuisance included the defendant’s emissions. There had been no intensification of the amount of wood dust during that period.
This was relevant to the question whether the nuisance was “substantial”, the basis on which the judge dismissed the action. In a short coda to the judgment however, the judge also said that the defendant could not rely on the “defence of ordinary user” because of the “marked increase over a relatively short period … to [the commencement of the claim period]”: “From around the beginning of 2000 Kronospan’s activities would have amounted to a nuisance”. There is an inconsistency here between the two accounts of the locality principle which cannot easily be explained.
Conclusion
All in all, then, litigants had better get round to invoking and pleading a two-stage test based on whether the claimant is making an ordinary use of its land, and then the question whether the defendant is making an ordinary use of its land. The latter might even be described as the test of “ordinary user”.
It does not seem that these new tests will be any more certain than before. Whether a use is “ordinary” is itself a question beset with uncertainty (as Lord Sales pointed out). At the same time, a detailed examination of the locality is likely to pose its own problems, especially in a busy mixed urban area, where a particular character will be difficult to ascertain (such as in Fearn).
Lord Leggatt’s new approach has been enthusiastically adopted. Where it suits a party to do so, however, there is a great deal of reasoned material identified by Lord Sales in Fearn which might be used in the overall balance. Defendants are particularly likely to need to examine how to reconcile his judgment with that of Lord Leggatt, especially where there is an issue as to whether the claimant could have done anything to protect itself against the defendant’s activities.
Time will tell whether the majority decision will have a real effect on an owner’s or a developer’s willingness to adopt new styles of building – Lord Sales’ ultimate concern.
GORDON WIGNALL
17 October 2025