Uncommon and Unordinary Nuisance: The Implications of the Fearn Decision for Australian Law
Abstract: The judgment of the United Kingdom Supreme Court in Fearn v Board of Trustees of The Tate Gallery is significant for at least two reasons. The first, and most controversial, is the Court’s unanimous agreement that ‘intense visual intrusion into someone’s domestic property is capable of amounting to a nuisance’. This might be inconsistent with the High Court of Australia’s decision in Victoria Park Racing v Taylor, depending on how we interpret the majority judgments in that case. The second is that, in recognising that a visual intrusion might amount to a private nuisance, Lord Leggatt (Lords Reed and Lloyd-Jones agreeing) dispensed with any preliminary question as to whether a given mode of interference with the use and enjoyment of land (noise, smell, vibration and so forth) is notionally protected by private nuisance. Whether a defendant is liable in private nuisance is now to be determined according to a singular evaluative exercise organised around a core concept of ‘common and ordinary use’. This new approach flirts with a novel (and untenable) conception of private nuisance according to which the specific uses of the parties are balanced against one another: a view that also finds support in Lord Sales’s dissent. In my view, however, the better way to understand Lord Leggatt’s judgement is that the core principle of common and ordinary use is still concerned, first and foremost, with the effect of a defendant’s activity upon the claimant’s land. If this is correct, then the revised core principle is unlikely to alter the calculus of nuisance in most cases. Consistently with this conclusion, early indications are that Australian courts will politely ignore this aspect of the judgment.
About the Speaker: Iain Field is a Senior Lecturer in Law at the TC Beirne School of Law at The University of Queensland and Honorary Associate Professor at Bond University. He teaches and researches in the area of tort law with a particular focus on issues relating to damages and defences. He has published in leading law journals, including the Modern Law Review, Oxford Journal of Legal Studies, Melbourne University Law Review, University of New South Wales Law Journal and Sydney Law Review and in 2022 received an Australian Legal Research Award, for his work on provocation in trespass cases (MLR). He is an editor of the University of Queensland Law Journal and editorial board member of the Torts Law Journal.
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About Australian Centre for Private Law Events
The mission of the Australian Centre for Private Law is to foster the development and understanding of the private law through advanced theoretical, doctrinal, empirical and historical research, and the dissemination of that research through education and professional outreach. By supporting the work of its Fellows, the ACPL seeks to promote research in all areas of private law and to establish itself as a research centre of national and international importance. The core initiatives of ACPL are:
Research: To advance a deeper understanding of the structure, principles and policies of the private law through advanced theoretical, comparative, and empirical analysis.
Education: To promote, facilitate and disseminate the results of that research for the benefit of Australia’s social and economic fabric.
Professional Outreach: To engage the judiciary and members of the legal profession in discussion about the values, goals and methods of private law and the respective roles of the judiciary, the legal profession and the academy in the interpretation and reform of private law.
The ACPL embraces all branches of private law, including the law of contract, torts, trusts, equity, property, unjust enrichment, including theoretical and jurisprudential dimensions and contextual applications thereof.
