Gary Cowen KC adapts the second part of his Blundell Lecture, presented together with Louise Clark, in which they asked: is the law of nuisance still relevant in the 21st century?
What Fearn and others v Board of Trustees of Tate Gallery [2023] UKSC 4; [2023] EGLR 14 tells us about the modern law of private nuisance is that it is all about the “common and ordinary use and occupation of land”, a phrase derived from Baron Bramwell’s decision in Bamford v Turnley (1862) 3 B&S 66.
If I do something on my land which causes material loss of enjoyment or amenity of my neighbour’s land then, notwithstanding that my neighbour is suffering that loss of enjoyment or amenity, I will not be liable if my use of my own land is a common and ordinary use of that land and if my use of my land is conveniently done.
Conversely, a claimant’s use of their land which is other than a common or ordinary use will not be protected by a claim in nuisance if the defendant’s common or ordinary use of their land causes the claimant to suffer a loss of enjoyment or amenity: Robinson v Kilvert (1889) 41 Ch D 88.
Reckoning with reciprocity
This reflects the principle of reciprocity which lies at the heart of the law of private nuisance. Baron Bramwell referred to this as “give and take, live and let live” in Bamford and Lord Millett in Southwark London Borough Council v Tanner and others [2001] 1 AC 1 referred to it as good neighbourliness, with a landowner showing the same consideration for their neighbour as they would expect their neighbour to show for them.
It is worth pausing to look at the manner in which the majority applied the law to the facts in Fearn. Lord Leggatt said that inviting visitors to look out over London from a viewing gallery was not a common or ordinary use and occupation of Tate’s land. He expressed that in three ways: that the judge “made no finding that there is any other viewing platform in that part of London”; that the judge did not find that “operating a public viewing gallery is necessary for the common and ordinary use and occupation of the Tate’s land”; and that “inviting members of the public to look out from a viewing gallery is manifestly a very particular and exceptional use of land. It cannot even be said to be a necessary or ordinary incident of operating an art museum.”
Because Tate’s use of its land was not a “common or ordinary use”, it could not rely on the principles of reciprocity and could not “rely on the principle of give and take and argue that it seeks no more toleration from its neighbours for its activities than they would expect the Tate to show for them”.
Lord Leggatt’s observation that there was no finding by the judge that there was any other viewing platform in that part of London introduces the idea of the locality principle, discussed briefly by reference to Sturges v Bridgman (1879) 11 Ch D 852 (the well-known “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey” case). The court reflected that, where an area has an established character, “where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner”, then to carry on that trade would not be an actionable nuisance – it would be the common or ordinary use of that land.
Part of the reason that well-known turn of phrase about Belgravia and Bermondsey raises eyebrows in the 21st century is that locations change their character over time. As we know from section 84(1)(a) of the Law of Property Act 1925, the law recognises that the character of an area can change and render otiose a contractual arrangement designed to protect land against the use of neighbouring land.
This has never been more the case than now. A retail market already reeling from the effects of online shopping was sent into a tailspin by the Covid-19 pandemic, with retailers taking the opportunity to close units. This has seen increased vacant units in our high streets and shopping centres. The average vacancy rate for retail units in central London is 13%, while in the rest of the UK the average is 14%: one in seven stores being vacant. Similarly, the Covid-driven desire for more flexible working practices has also resulted in a glut of unwanted office space. On the other side of the coin, we continue to find ourselves with a national shortage of residential property, exacerbated by a reluctance to construct affordable homes.
The days of areas being associated with a particular type of manufacture are long gone. As we increasingly mix commercial and residential accommodation in our cities, London and our other major cities become homogenised, with a mix of residential, commercial, retail and leisure uses rubbing shoulders. If we are determining whether a use of land is common or usual by reference to a locality, that arguably becomes much harder to do when an area has a multitude of different uses rather than being the home of tanneries or some other specific and readily identifiable industry.
All of which raises the question whether it is still appropriate to determine whether a claim for nuisance should succeed based on principles set out in the 19th century when localities were rather more easily characterised. A law which was suitable for life in the mid to late 1800s is not the obvious candidate to help us in the 2020s.
Out of the ordinary
Lord Leggatt also said that the judge did not find that “operating a public viewing gallery is necessary for the common and ordinary use and occupation of the Tate’s land” and that “inviting members of the public to look out from a viewing gallery is manifestly a very particular and exceptional use of land”. The emphasis is placed on whether the behaviour complained of was a common or ordinary use of the defendant’s land, albeit by reference to the locality in which that land is situated.
Is there a danger that, in a modern environment, such a principle stifles potential development of a particular area and works against exactly the type of change that is prevalent in a modern society? If changes in use are liable to be the subject of relief because they are novel or unusual within an area, then there is at least a potential theoretical risk of unhelpful stagnation of use.
Lord Leggatt specifically noted that the trial judge made no finding that there was any other viewing platform within the relevant locality. Does it follow that only if there had been such a platform could it be said that having a viewing platform was a common or ordinary use? If that is what he meant, the first person to carry out any type of development runs the risk that their development exposes them to a claim in nuisance if their activities on the land damage the amenity of neighbouring land. But once there are, say, half a dozen developments (or perhaps even just two) in the area, each might contend that the presence of others suggests that the use of land complained of is a common or usual one within that locality.
Of more concern is that the principle seems somewhat arbitrary in its application. The defendant’s liability depends not on the behaviour complained about but on whether that behaviour is common or ordinary measured against the behaviour of others.
There is also potential contradiction in Lord Leggatt’s words. The court said that a viewing gallery is a very particular and exceptional use of land. The emphasis is on the specific behaviour complained of – the use as a viewing gallery – and whether that specific behaviour can be said to be a common or ordinary use of land by reference to the locality in which it is situated. Lord Leggatt went on, however, to add that the viewing gallery is not even a necessary or ordinary incident of operating an art gallery.
That seems a very different proposition; for the purposes of determining whether a use is a common or ordinary use, the comparator is not land in the locality but, rather, art galleries with no specific location specified.
Lord Leggatt explained that the principles he had adopted reflected the principles of reciprocity. But we live in a landscape where the use of land is changing more rapidly than it has in the past. Climate change and the accompanying scarcity of resources and shifts in population are likely to increase the pressure on land use. We must find ways of halting climate change as well as housing shifting populations. Sooner or later, that is likely to involve changing the way in which we use land.
Can we, for instance, introduce the technology we need to ensure that we meet our domestic climate targets if developers are hamstrung by the law of nuisance, which dictates that any novel or unusual use of land which affects the normal living of others may give rise to liability?
The continued rise of technology, in particular telecommunications, poses ever greater questions about land use. The latest modish view seems to be that our jobs are likely to become redundant, taken over by artificial intelligence. Will that further hasten the demise of office use of land? The law needs to recognise that changes in the way we use land must be borne by all of us as a society.
Give and take
What strikes me personally about Lord Leggatt’s version of reciprocity is that it does not feel like it applies equally to both parties as you might expect with a principle based on “give and take”.
The emphasis is placed firmly on the side of the defendant, which might be liable on the basis of Lord Leggatt’s principles no matter how easy it might be for the claimant to mitigate the detriment to the amenity of its land. To counter that by saying that a particularly vulnerable claimant cannot complain about the ordinary everyday use of their neighbour’s property even if that causes damage due to the uncommon or special use of the claimant’s land does not seem to me to be truly reciprocal. It is meeting a different issue. Why is it the case that reciprocity cannot apply to the behaviour of both parties in both scenarios rather than merely limiting consideration to a different factual scenario?
I have to confess to preferring Lord Sales’ explanation, when he said: “The purpose of the ‘give and take’ principle is to allow the court to determine the point at which a reasonable reconciliation between the property rights of different landowners can be achieved, and the opportunities for one or other to take action themselves to help achieve that are relevant.”
He referred to one party or the other conducting themselves in a manner which, though reasonable in itself, has, by the standards appropriate to the area in which they are situated, tended to increase the degree of friction between their property rights and those of their neighbours, without justification.
So, for instance, he referred to the unusual design of the claimants’ buildings, which is inherently reasonable from their point of view, but which adds to their vulnerability to the type of nuisance found to exist by the majority.
If we are truly concerned with reciprocity – give and take between both sides and not merely one – then is there really any reason why behaviours by the claimants or features of the claimants’ property which are, themselves, unusual or uncommon should not be taken into account?
The minority view was that the relevant question is whether the defendant’s use of its land meets an objective test of reasonableness encapsulated by the principle of “give and take”.
This test, Lord Sales remarked, is critically informed by the nature of the locale, but also takes into account the general rule that it is open to a landowner to use its land as it sees fit. More pertinently, the use of an objective test of reasonableness enables the court to adopt a wider approach including all of the circumstances of the case on both sides.
This avoids placing undue weight on the defendant and potential stultification of development. The minority’s test takes into account both sides of the equation. As Lord Sales said: “There is no reason why the whole burden of minimisation or avoidance of such friction should fall upon the defendant. A fair balance between the two competing interests is what is required.
“In striking that balance, the general right of each of the claimant and the defendant to use its land as it wishes should be accommodated so far as is possible and is consistent with the equivalent competing interest of the other party… If land can be developed for new uses in ways which reasonable accommodation on both sides would allow, the law of nuisance should not prevent it.”
Further, the law of nuisance already features issues of reasonableness – the further Bamford requirement that the defendant’s actions are “conveniently done” imposes an obligation on the defendant to behave reasonably and with proper regard to the interests of the other party. As reasonableness is already an issue, there is little difficulty in widening the applicability of an objective reasonableness test in determining liability.
No getting away from nuisance
As I noted at the outset, the view of the majority in Fearn is consistent with authority and represents the law of nuisance. There is also no doubt that the law of nuisance will continue to be relevant to very many situations going forward. Recent decisions concerning the noise and smells emanating from an adjoining fish and chip shop (Ray v Windrush Riverside Properties Ltd [2022] EWHC 2210 (TCC); [2022] PLSCS 144) and encroaching Japanese knotweed (Davies v Bridgend County Borough Council [2023] EWCA Civ 80; [2023] PLSCS 27) show that many neighbour disputes are still very capable of being determined using the law of nuisance.
In my personal view, however, the approach of the minority better suits a modern adaptable law of nuisance for the 21st century and the need for a modern coherent law which serves to balance the interests of all owners of land. We have taken a step backwards from that outcome.
Gary Cowen KC is a barrister at Falcon Chambers
Part 1: Is the law of nuisance still relevant in the 21st century?
