The Tort of Private Nuisance in UK: An ‘Unfinished Architecture’

Introduction:

The controversial legal principles that have been set out for the tort of private nuisance in the UK have continued to receive ongoing criticism and debate due to its persistent lack of clarity. As the author Chen Chen suggests in their published article in Cambridge Law Journal, the Supreme Court has reshaped the doctrine of private nuisance in the two landmark cases of Coventry v Lawrence and Fearn v Tate Gallery due to which significant questions and concerns remain unresolved, hence entitling the law to be an ‘Unfinished Architecture’[1].

It is crucial to address that while a broad and flexible analysis of the law is beneficial to widen the horizons of the doctrine itself, key issues specific to the law such as what exactly construes as private nuisance, the principles governing to the analysis of locality, and remedial discretion demand clear comprehension on the law of private nuisance. This has, however, yet to be achieved due to confusion and uncertainty amongst the courts and legal professionals.

Tort of Private Nuisance and key issues:

Uncertainties in Coventry v Lawrence:

Winfield and Jolowicz define private nuisance as an ‘unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it’. In order to prove nuisance, the courts consider general factors such as type of damage, malice, and abnormal sensitivity, however, one of the factors which raises legal debate and a core issue in terms of private nuisance is the aspect of the nature of locality. In the case of Sturges v. Bridgman, (1879) 11 Ch. D. 852 (C.A.), it was held that courts will consider locality and determine the threshold of nuisance ‘What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’, meaning that nuisance would be judged in accordance to the area in which it occurs.

Locality Principle

However, the landmark case of Coventry v. Lawrence, [2014] 1 A.C. 822 (UKSC)[2] modernized this principle. In this case, homeowners claimed that enjoyment of their land and premises was being disrupted by a near-by motor racing stadium. The Supreme Court established that when the character of a neighborhood is being considered, then the courts should ignore unlawful activities on the defendant’s land and secondly, the noisy activity cannot be disregarded as ‘part of the locality’s character’ if the noise itself is the subject of the claimant’s complaint. This extended principle of the original precedent set in Sturges led to confusion that still remains and further complicates the locality requirement, thus highlighting itself as a key issue.

‘Coming to Nuisance’

Other areas of private nuisance were also expanded in the aforementioned case such as ‘Coming to the nuisance’ (moving to an area where the activity was already occurring)[3] was not a valid defense for the defendant and this case also highlighted that private nuisance and planning law served two distinct functions. It can be said that these principles set out support Chen’s interpretation of the law on private nuisance being an ‘unfinished architecture’. While Coventry acknowledges that modern neighborhoods and localities are more varied, Lord Neuberger failed to specify what exactly construes as ‘unlawful’ which created significant ambiguity in the law. With regards to ‘coming to the nuisance’ not being a valid defense, this area is also vague because the courts did not specify to what extent the claimant’s knowledge of the activity should enable the courts to form a judgment on whether the disturbance is reasonable or not.

(c) Remedial Discretion

 Additionally, the uncertainty for remedial discretion has also played an important factor for Chen’s statement. The judge has the authority to choose between stopping nuisance and letting it continue with a price to pay. Though this power was acknowledged in Coventry, the Supreme Courts could not reach a conclusive outcome due to which lower courts now have to make their own decisions in each case, enhancing flexibility and undermining certainty in the law.

Changes seen in the case of Fearn:

Perhaps one of the cases that drastically increased the uncertainties and ambiguity of private nuisance from Coventry was Fearn v. Bd. of Trustees of the Tate Gallery [2023] UKSC 4, [2023] 2 W.L.R. 363, [2023] 1 All E.R. 811 [1, 2][4]. In this case, residents of Neo Bankside luxury flats claimed that visitors on Tate Modern’s top viewing gallery, which was right in front of the flats, could look directly into the apartments, and hence, this constant observation substantially interfered with their enjoyment of their homes – therefore it was private nuisance. This led to a legal issue and debate regarding whether visual intrusion can be considered a part of private nuisance.  

Visual Intrusion falling under Nuisance

Unanimously, the Supreme Court ruled by a 3:2 majority that visual intrusion could by principle be nuisance.[5] Lord Leggatt, Lord Reed, and Lord Lloyd-Jones agreed that Tate was liable because allowing visitors to view the flats was substantially interfering with the resident’s ‘ordinary use and enjoyment of their land’ whereas, the minority, Lord Sales and Lord Kitchin preferred a ‘give and take’ approach based on objective reasonableness. This confliction between the Supreme Court judges creates uncertainty due to the fact that it doesn’t set out a conclusive and agreeable precedent for the lower courts to follow. This internal split easily supports Chen’s claim of the doctrine being unfinished, as also argued above.

Expansion of Nuisance

The final decision of the Supreme Court was seen as a significant change because it shifted nuisance away from physicality as the defining element by also extending it to visual disturbance. In addition to this, it caused development in other areas of tort for e.g., R (Jalloh) v. Sec’y of State for the Home Dep’t, [2020] UKSC 4– related to false imprisonment where physical restraint was deemed not necessary. Change can further be observed due to the fact that UK law lacks a proper tort on invasion of privacy, however, through the changes made in Fearn to widen the horizons of private nuisance, greater protection is impliedly provided to property owners as compared to others and only those with a legal interest in land can bring a claim against nuisance.  

(c) Recent Application

 The doctrine of private nuisance transformed after Fearn is being implemented and applied practically in recent cases as well by the lower courts. The High Court decisions in Nicholas & Ors v. Thomas[6] & Anor [2025] EWHC 752 (Ch) and Andrews v Kronospan [2025] EWHC 2429 [7]showcase that these principles are still being applied. In Nicholas, courts applied the ‘common and ordinary use of land’ test which is inclined with the majority’s decision in the Fearn case, and in Andrews, a similar stance was observed by the courts, however, problems arose when the characteristics regarding ‘nature of locality’ was to be assessed, which clearly shows that the uncertainties present in Coventry continue to create loopholes in the law till recent date. Gordon Wignall explicitly states in his article that despite the willingness of the lower courts to adhere to Lord Leggatt’s decision, “it does not seem that these new tests will be any more certain than before”[8]   

Reform Proposals to avoid uncertainty:

In order to reduce uncertainty and ambiguity in the doctrine of private nuisance, it is crucial to assess the key areas that have been left unresolved by the Supreme Court in both the aforementioned landmark cases. At first, the locality principle has to be properly addressed and the activities which characterize a locality need to be determined for more clarity. The courts expanded locality by acknowledging that it wasn’t restricted to a single identity, however, its confines have yet to be highlighted. Another core issue which should be reformed is the decisions regarding remedial discretion. The new approach that was established in the Coventry case allows courts to award damages instead of injunctions if they want to, however, clearer guidance is needed in order to know when it is reasonable and just to award damages instead of injunctions, which would respect public interest as well. Lord Sumption’s view was that damages should be awarded instead of injunctions in scenarios where the defendant’s activity that was causing disturbance was in the interest of the public and that the activity has been deemed acceptable in that specific area (planning permission).[9]

However, this perception was refuted by Lord Neuberger and Lord Carnwath who adapted a different approach. They believed that if this common practice of awarding damages instead of injunctions is observed then the defendant is basically buying the right to interfere and disturb someone’s use of land. This changes the nature of the tort dramatically and legalizes nuisance in exchange of a price to pay. Despite this debate, it is noted that there has yet to be a finalized decision regarding remedial discretion due to which it is crucial that proper guidelines ought to be made.[10]

Conclusion

The tort of private nuisance continues to showcase itself as a confusing and heavily debated area of English law. The case of Fearn greatly influenced the complexities in the tort because of the internal split between the Supreme Court judges regarding whether visual intrusion can amount to nuisance and also conflicting opinions of the lower courts. Although the majority’s ‘common and ordinary use of land’ approach is considered to be the more decisive and reasonable framework for establishing nuisance, it has been subjected to a lot of criticism. As Lord Sales states that nuisance should be primarily focused on ‘reasonable reciprocity’ between neighbors, balancing interests of both. Characteristics of the locality and other subjective elements ought to be considered before a judgment is made. Despite the reasonableness of this argument, lower courts nowadays have expressed that they are more inclined to following the majority’s framework that is set as seen in the Nicholas case, yet this does not eradicate the persistent uncertainty and flux in the doctrine especially related to the locality principle, ‘coming to nuisance’, and remedial discretion.   

It is important that these loopholes in the doctrine are addressed and there should be reforms and recommendations to resolve this uncertainty. Courts should clarify the characteristics of assessing locality and provide proper guidelines and rules as to when damages can be awarded instead of injunctions so the purpose of the tort is being fulfilled and rightfully practiced.

If these loopholes and gaps in the law are not properly evaluated, then the law of private nuisance in the UK will continue to be an ‘unfinished architecture’ and every new case would set reformed legal precedents and alterations in the law, allowing itself to further become what is commonly known as ‘a doctrinal mess’.

Reference(S):

 Cases:
Andrews v Kronospan [2025] EWHC 2429 (TCC).

Coventry v Lawrence [2014] UKSC 13, [2014] 1 AC 822.

Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2023] 2 WLR 363.

Nicholas v Thomas [2025] EWHC 752 (Ch).

R (Jalloh) v Secretary of State for the Home Department [2020] UKSC 4.

Sturges v Bridgman (1879) 11 Ch D 852 (CA).

Legislation

Secondary Sources:

Journal Articles

Chen C, ‘The Unfinished Architecture of Private Nuisance: Bridging the Gap Between Coventry v Lawrence and Fearn v Tate Gallery’ [2026] Cambridge Law Journal  

Websites/Blogs

Wignall G, ‘Update on the New Law on Private Nuisance: How Is It Being Applied?’ (WigLaw, 2025)   

[1]  Chen C, ‘The Unfinished Architecture of Private Nuisance: Bridging the Gap Between Coventry v Lawrence and Fearn v Tate Gallery’

[2]  Coventry v Lawrence [2014] UKSC 13, [2014] 1 AC 822

[3]  Coventry v Lawrence [2014] UKSC 13, [2014] 1 AC 822

[4] Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2023] 2 WLR 363

[5] Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2023] 2 WLR 363

[6]  Nicholas v Thomas [2025] EWHC 752 (Ch)

[7] Andrews v Kronospan [2025] EWHC 2429 (TCC)

[8] Gordon Wignall, ‘Update on the New Law on Private Nuisance: How Is It Being Applied?’ (WigLaw, 2025) https://wiglaw.co.uk/update-on-the-new-law-on-private-nuisance-how-is-it-being-applied/

[9] Coventry v Lawrence [2014] UKSC 13, [2014] 1 AC 822, [45]–[50]

[10] Coventry v Lawrence [2014] UKSC 13, [2014] 1 AC 822, [45]–[50]