Real property, real impact: a modern masterpiece

Article by James McCreath, 18^thMay 2026

This article was originally published by Estates Gazette here.

Amid the flurry of nuisance cases the Supreme Court has heard in the past four years, none is as significant as Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4; [2023] EGLR 14. The case does not break any new legal ground or set out some new principle. However, it sets out a forceful and comprehensive account of the relevant principles which will not only ensure that it is the “go to” source for the law of nuisance for many years, but it also puts to bed a number of heresies that have beguiled practitioners and judges in recent years.

Looking back
The facts of the case are well known. The Tate Gallery operated a viewing platform from the top floor of the Blavatnik Building, which many hundreds of thousands visited each year. At weekends it was open until 10pm. The Tate actively encouraged visitors to take in the view from every direction.

While the visitors no doubt enjoyed this, for residents in the Neo-Bankside, it was another matter entirely. One of the views visitors could enjoy was a view directly into their glass-fronted flats, only a little over 30 metres away. Some visitors used binoculars to get better views into the flats, others waved and others took photographs, even posting them on social media.
One could see this as a fight between the public interest in a stunning public space, and the private interests of residents to live their lives in relative privacy, even in glass-fronted flats in the middle of London. Someone seeing it in those terms would have sympathy with the decision of Mann J at first instance that there was no nuisance, as the use of the viewing gallery was reasonable and the claimants were responsible for their own misfortune.

The Court of Appeal unanimously agreed in the result, but not the reasoning. It held that, on the application of ordinary principles regarding nuisance, there was a nuisance. However, it held that those principles did not apply, in short, because “overlooking” could not amount to a nuisance.

The prevailing view
By a majority of 3-2, the Supreme Court disagreed. The maths means that, of the nine judges across the courts who heard the case, six (including two in the Supreme Court) held there was no nuisance. But despite that, Lord Leggatt in his majority judgment held that the application of the principles to the facts as found by the trial Judge was “entirely straightforward”. Having
likened the position of residents to “being on display in a zoo”, he held that there was an actionable nuisance. If it is so straightforward, why the difference of judicial opinion? The answer, and reason the case will be enduringly significant, lies in Lord Leggatt’s approach to certain beguiling heresies that have troubled the law of nuisance. I will address four in particular.

Emanation
The first is that nuisance requires something – an actual thing, noise, odour, heat or so forth – to “emanate” from the defendant’s land to the claimant’s land. This heresy perhaps originates in the relationship between trespass and nuisance. Trespass of course necessarily involves an entry onto the claimant’s land. Nuisance was historically known as “trespass on the case”, and there is much learning on the precise location of the border between the two torts. But Lord Leggatt’s judgment makes clear that wherever that border between trespass and nuisance lies, the border of nuisance on the other side extends far further.

Thus he makes clear nuisance does not require any form of emanation or invasion from the defendant’s land. The underlying principle in nuisance is to protect the utility and amenity value of land, and anything done by the defendant which interferes with that in principle can be a nuisance. There is no limit on what activities can amount to a nuisance. Emanations such as noise and
odour are nuisances, not because they are emanations, but because they interfere with enjoyment of land.

Overlooking
The second heresy is closely related: that overlooking cannot constitute a nuisance. Lord Leggatt explained that this heresy involves a logical fallacy. Very often, overlooking will not, on the facts, constitute a nuisance: applying the principles set out below, it is a perfectly ordinary part of reciprocal urban life. But as Lord Leggatt explains, it does not follow that it is never a nuisance. Like any other activity, provided it substantially interferes with the use of land, and if the protections set out below are not present, it will constitute a nuisance.

Reasonableness
The third heresy is that a defendant may answer a claim in nuisance by showing that their use of land is “reasonable”. This heresy has been pointed out before, for example in Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312; [2012] 2 EGLR 157, but has proved enduring. Its source is a misreading of a passage from Lord Goff’s speech in Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264, where he said that nuisance has been “kept under control by the principle of reasonable user”. This has led many defendants, including Tate itself, to argue that because its use of
land is a reasonable one, it cannot be liable in nuisance.

It is however wrong. The “principle of reasonable user” is simply a shorthand for two conditions which a defendant must overcome to justify interference with others. First, they must show that the activity complained of is necessary to the common and ordinary use of the land. Second, they must show that it is “conveniently done”, having regard to its impact on their neighbours. The underlying justification is give and take: we must show the same consideration to our neighbours as we expect from them.

This explains why most overlooking in an urban context will not be a nuisance. The ordinary way that neighbours unavoidably overlook each other in that context is a common and ordinary use of the land, and is normally done with due care. It also explains, as Lord Leggatt points out, why building is not necessarily a nuisance, if conveniently done: building on your land is a fundamental part of common and ordinary use. Operating a viewing gallery however is not necessary to the common and ordinary use of land.

Sensitivity
The fourth heresy is that a claimant cannot complain of a nuisance if their own use of land has made them particularly sensitive to it. Lord Leggatt explained that this is too absolutist a position. It is true that if use of your land has made you sensitive to your neighbour’s common and ordinary use of their land, you cannot argue the neighbour must adapt their use accordingly. If you build a glass-fronted flat next to another residential building, you have to live with the extra overlooking you will get as a result of your own design.

It does not however, he explained, follow that the mere fact that the claimant’s use has made them more sensitive provides the defendant with a defence. Just as the state of the claimant’s land cannot increase the liability of the defendant, so too it does not reduce it (assuming always that the claimant’s use may still said to be ordinary).

Not to be overlooked
So, practitioners be warned. No doubt it is tempting to think that the question in a nuisance case is whether the defendant’s activities are reasonable, or that it is obvious that a claimant cannot complain about something they have, through their own actions, made worse. Tempting, but wrong. Lord Leggatt’s judgment will, in correcting these and other mistakes, stand the test of time as the most authoritative treatment of the law of nuisance yet available.