2) Is a “Substantial” Interference an Objective, or Subjective, Standard?
This is the second in a short series of posts considering the fallout from the judgment of Leggatt JSC in Fearn v. Tate Gallery Trustees [2023] UKSC 4 [2023] 1 WLR 339, in which he listed what he described as a set of applicable principles relevant to the assessment of private nuisance.
In post (1) I examined the rash of brick kiln (and other) cases which preceded Walter v. Selfe (1851) in order to try to discover whether the contemporary notion of the “threshold” test is lower than the test which was applied when it was first established. The various authorities show reasonably clearly that there has been no such ‘deflationary’ effect over the years.
The ‘threshold’ test is recognised an objective one, reflecting the fact that the interest which is protected by the tort is the utility of land, not the personal comfort of the individuals occupying it (see Fearn at para.23). See also para 108 of Leggatt JSC’s judgment: “In each case the court just has to make a judgment about whether the nature and degree of interference exceeds what an ordinary person would regard as acceptable”. Various terms have been used in more recent judgments, including “serious”, “material” and “significant”, even though the starting-point is still Walter v. Selfe itself.
But what about the fact that different people have varying responses to nuisances, and the fact that different nuisances can bring about different responses? The continuing and insidious noise of crying toddlers at a busy nursery, or the sound of a sports stadium, for instance, can have very different effects on adult receptors. Some people might possibly like the smell of pigs, whilst others will have much more predictable reactions.
Leggatt JSC acknowledged the range of possible outcomes, not by departing from an objective test, but by recognising that judges make allowances for a wide set of human responses.
See further at para.108 of the judgment: “I think that in practice courts seek to make allowance for variations in normal human reactions by building a margin into their assessment and requiring quite a high level of interference before finding an interference with the ordinary use of property to be sufficiently serious to amount to a nuisance. But of course there will be some finely balanced cases in which different judges applying the same test to the same facts may reach different conclusions. The possibility of such disagreement is inherent in the task of judging”.
Whilst the threshold test is an objective one, then, judges do make allowance for the variations in human responses. This is also recognised in the guidance documents covering certain areas, which it can be helpful to include in the evidence placed before the Court.
Gordon Wignall
22 May 2023