On the 11th of March 2020, a five-member Supreme Court handed down a landmark judgement in the context of the tort of nuisance and, more broadly, public life in cities.

The dispute arose when residents of luxury flats at Neo Bankside alleged that the 360-degree viewing platform built by the Tate Modern represented an infringement on their right to peaceful enjoyment of their land, as it permitted thousands of visitors to observe their homes, thereby amounting to a claim in nuisance. By a majority of 3–2, the Court allowed the appeal, with Lord Leggatt delivering the leading judgment. In his application of the ‘common and ordinary use of land’ test, Lord Leggatt (despite lacking overt admission) reframed the boundaries of the tort.

This article will examine the potential issues pertaining to Leggatt’s framing of the test; the public interest and engagement of reciprocity; and its practical implications for urban development and privacy protection. The article will, however, acknowledge elements of the judgment that are to be welcomed, namely in the name of modernising the tort. In doing so, it will assess whether the decision represents a logical and necessary evolution of nuisance law, or whether it risks expanding the tort beyond its appropriate limits.

The “Common and Ordinary Use” Test

Lord Leggatt’s approach focused the inquiry on a single question: was the Tate making a “common and ordinary” use of its land? For him, this was the central governing principle of nuisance, drawing on Bamford v Turnley. If the answer was “no,” and it was determined that the Tate was not making a ‘common and ordinary’ use of its land, the enquiry was concluded, and liability would ensue.

This notion, prima facie, seems grounded; however, as was argued by Lord Sales in dissent, this framing risks oversimplifying a test that has traditionally required a more holistic assessment. Nuisance law has long considered multiple factors — the nature of the locality, the duration and extent of the interference, the sensitivity of the claimant, and most significantly, the public interest.

By condensing the inquiry to a binary “common and ordinary use” question, Lord Leggatt seemingly sidelines these other considerations. Maria Lee and Jeevan Hariharan have both pointed out that a public viewing gallery is precisely the kind of feature that should inform analysis pertaining to questions of nuisance.

The Significance of the Framing

The dangers of an oversimplified test are visible in the stark difference between the first-instance and Supreme Court findings. Justice Mann, drawing on a more macro enquiry underpinned by the broader principle of “reasonableness”, concluded there was no nuisance. He emphasised the claimants’ ability to take “self-help” measures – such as drawing blinds.

With the use of a broader test of ‘reasonableness’, Justice Mann was able to take a wider array of considerations when reaching his conclusion as to whether nuisance was present. Mann considered factors, the nature of the locality, namely that the claimants’ flats were erected in a central area of London, and had full glass windows, concluding therefore that some degree of intrusion was inevitable.

Lord Leggatt, on the other hand, undermined the relevance of the aforementioned factors in determining liability. For Leggatt, the only line of enquiry was whether the Tate was making a common and ordinary use of its land; on the facts, he concluded that it was not, and therefore the question of nuisance was simply answered in the affirmative. The diametrically opposite conclusions in the same factual scenario elucidate how sensitive outcomes are influenced as a result of the framing of the test.

The Public Interest

Perhaps the most contentious part of the majority judgment was Lord Leggatt’s decision to separate public interest considerations from the liability stage, confining them to the assessment of remedies. For him, the public’s enjoyment of the viewing platform had no bearing on whether a nuisance had been committed, being only remedially relevant.

Critics argue this runs counter to the very nature of nuisance as a relational tort. Public interest is not an optional extra – it is embedded within the “give and take” principle that Bramwell B articulated in Bamford v Turnley. By removing it from the liability analysis, Leggatt’s approach risks tilting nuisance into a cursory framework, favouring claimants without adequately considering the community’s stake in the defendant’s use of land.

Reciprocity and the Urban Context

The judgment also raises broader questions about reciprocity in modern cities. Giles Coren, writing in The Times, criticised the claimants’ refusal to take simple steps to protect their privacy, remarking that “glass is a two-way street.” His point was that in a dense urban environment, some degree of mutual tolerance is inevitable – whether it’s noise, smells, or in this case, views.

This sentiment echoes deeper concerns: if the law gives priority to the privacy of well-resourced property owners without demanding reciprocal concessions, it risks reinforcing inequalities in urban life. Residents in more modest housing, who face comparable intrusions but lack the means to litigate, may see no benefit from such decisions.

Consequences for City Living

The policy implications of Fearn are significant. Oliver Wainwright of The Guardian warns that the decision could “open the floodgates” to nuisance claims against cultural institutions, public spaces, and even ordinary neighbours. The threat of litigation could discourage the design of open, accessible public amenities in favour of closed-off, defensive architecture.

Hariharan pushes this critique further, arguing that the decision exemplifies a deeper trend in the common law towards protecting property owners at the expense of non-owners. He notes that the claimants’ case was framed entirely around nuisance, without invoking Article 8 ECHR privacy rights — and yet they arguably secured greater protection than many individuals receive when privacy invasions occur in public spaces or rented accommodation.

A Modernised Nuisance Framework

Despite the above critiques, the decision is not without merit. One of its stronger points is its recognition that nuisance can encompass non-physical forms of interference. By acknowledging that visual intrusion can be as harmful as noise or odour, the Court ensures the tort remains relevant in the digital age.

Maria Lee praises the judgment for keeping the common law in step with qualitative technological realities: in an era where high-resolution cameras are ubiquitous, visual intrusion is far more intrusive and persistent than it once was.

The move also aligns nuisance with developments in other torts, such as Jalloh, where false imprisonment was found without physical restraint. This avoids arbitrary distinctions that can lead to unjust outcomes, as seen in Fairhurst, where intrusive CCTV use could not be challenged under nuisance because it was non-physical.

Why the Extension Matters in Practice

The extension of visual intrusion, amounting to nuisance, has clear practical benefits. Cases involving drone surveillance, targeted filming, or high-powered cameras may now have a viable common law remedy. As urban environments become more technologically complex and privacy harder to protect, this flexibility in the law is essential.

The authority of Fairhurst v Woodard exemplifies this notion. The claimant succeeded in obtaining an injunction under statutory law, but the court emphasised that nuisance would not have been available. Post-Fearn, the same facts could potentially give rise to a nuisance claim, providing a more direct route to relief.

Conclusion

In summation, Fearn v Tate is a decision of two halves. On one side, it makes a valuable doctrinal contribution by modernising nuisance law to address non-physical, technologically enhanced intrusions. On the other hand, it risks distorting the tort’s balancing function by oversimplifying the test and sidelining public interest considerations.

For that reason, Lord Leggatt’s judgment is, in my view, agreeable only to a limited extent. Its recognition of visual intrusion is welcome, but its legal framing could have unintended consequences for reciprocity, equality, and the vitality of public life in cities. The challenge for future cases will be to harness the benefits of Fearn’s doctrinal evolution without eroding the nuanced balancing that makes nuisance such a flexible – and fair – part of the common law.