A Path to Reciprocity: Rebalancing the Tort of Private Nuisance after Fearn v Tate Gallery

Abstract

The tort of private nuisance finds itself in an erratic state following the Supreme Court ruling in Fearn v Tate Gallery. This judgment has exposed a growing imbalance within private nuisance, jeopardising the principle of reciprocity that underpins the tort. Recent developments have witnessed the expansion of the scope of private nuisance, deeming more scenarios actionable nuisances with seemingly no constraint. When the doctrine becomes more favourable to plaintiffs without a corresponding adjustment to protect the interests of defendants, it raises concerns about the fairness of the tort and its loyalty to the principle of reciprocity. This paper will investigate the various defendant adverse factors that the Fearn majority discuss. These include an overreliance on the "common and ordinary" use standard and a failure to consider the public interest, reasonable self-help measures, and planning permissions. Given the already extensive list of factors that weigh against defendants, the continued expansion of private nuisance without a re-evaluation of the side of the doctrine pertaining to defendants runs the risk of undermining the principle of reciprocity. Thus, in order to restore equilibrium to the tort, factors such as "coming to the nuisance" must be a relevant consideration when assessing liability. This is crucial to maintain an equitable balance between the interests of both claimants and defendants to a private nuisance claim. Only through such a reassessment can the tort of private nuisance remain grounded in the principle of reciprocity.