Nuisance Claims: A New Era!

We have recently seen a fundamental reshaping of the legal landscape of nuisance, moving beyond traditional disputes over noise or smell to address the complexities of modern land use – such as those arising from viewing platforms in the Fearn -v- Board of Trustees of Tate Gallery case in 2023.

The legal landscape in terms of how such cases are decided has also changed since the Tate Modern case, and the High Court has recently affirmed that approach in the more recent case of Nicholas v Thomas.

The Court’s approach in the Nicholas v Thomas (2025) case clearly demonstrates that developers will need to carefully consider the impact of their development plans on neighbouring properties Given the publicity of these cases, those facing privacy intrusions, or have nuisance concerns, may be more willing to challenge them as a result.

We discuss the cases and the changes in further detail below.

In Fearn -v- Board of Trustees of the Tate Gallery the Supreme Court ruled that private nuisance can be caused by any means, including visual intrusion.

Here, residents of flats on London’s South Bank sued the Tate Modern for nuisance on the basis that its public 360 degree viewing gallery overlooked the glass-panelled flats, allowing hundreds of thousands of visitors a year to see directly into their homes.

This landmark case catalysed change. In making the decision, the key question for the Supreme Court was whether the use of land by both parties was “common and ordinary” and not whether the use of the land was reasonable. In their view, the interference must (to the ordinary person) be substantial, however, a defendant will not be liable if the use of the land is “common and ordinary” having regard to the character of locality.

This marked a clear shift from the traditional “reasonableness” test and meant the Court decided that inviting the public to admire the view from its viewing platform at the Tate Modern was not a “common and ordinary” use of the land, despite its prime location. 

In Nicholas -v- Thomas the Court applied the principles established in Fearn v Board of Trustees of the Tate Gallery, and the “common and ordinary use” test, to a dispute over rural land. This showed that the test was not limited to disputes over urban land, and the new test should be applied in future cases.

The claim itself was brought in relation to the claimant’s business of breeding racing falcons, which are highly sensitive to noise and visual disturbances, particularly during breeding season. Despite being aware of this, the neighbouring defendants built a barn adjacent to the aviary during breeding season, which resulted in the death of three falcons. The allegations of nuisance also included the use of the defendant’s agricultural land for a scaffolding business. Other claims were also alleged. 

The High Court found in favour of the claimant, applying the “common and ordinary use” test with reference to the actual use of the land, not abstract notions of what is typical in a rural setting. The decision also clarified the approach to be taken in these types of cases in the future, namely:

1. Identifying the use of land by each party;
2. Assessing whether the uses are “common and ordinary”;
3. Evaluating foreseeability and notice, especially where sensitive uses are involved; and
4. Considering the proportionality of the interference.

The Nicolas v Thomas case certainly does offer clarity to those navigating nuisance claims, demonstrating how the courts are now affirming the use of the “common and ordinary use” test in favour of the “reasonableness” test, and how parties should review their case if such claims arise.  The case shows that the “common and ordinary use” test is here to stay (at least for the foreseeable future) and, therefore, parties should take on board its impact in terms of their potential development plans and whether planning permission should be granted to minimise the chance of such claims arising in the future.