06/17/2026
The Supreme Court of UK, in Fearn v Board of Trustees of the Tate Gallery held that a landowner will not generally be liable in private nuisance when land is used for common and ordinary purposes; however, liability may arise where the use is exceptional or unusual.
Although Jeevan Hariharan welcomed the decision in his article The View from the Top: Visual Intrusion, Privacy, Property Rights, he criticized the Court's reliance on the distinction between "common and ordinary use" and "exceptional or unusual use" of land, arguing that these concepts may create uncertainty in future nuisance cases.
However, I question the author's criticism. While he identifies the potential uncertainty created by these terms, he does not clearly explain what alternative standard or test should replace them. Without proposing a more precise framework, the criticism appears incomplete. This raises the question of whether the concern is sufficiently substantiated, since identifying a problem without offering a workable solution may leave readers uncertain about how the law should develop in future cases.
I respectfully disagree with the author's criticism. In my view, the phrase "common and ordinary use" is sufficiently clear and unlikely to create significant difficulties in future cases. Common sense suggests that the phrase refers to the normal use of land for everyday residential or personal purposes rather than for activities that attracts large numbers of people or involve intensive commercial operations.
For example, using a balcony for personal enjoyment, such as relaxing, reading, or enjoying the view, would constitute a common and ordinary use of residential property. In contrast, using the same space for commercial purposes or activities that attract numerous visitors on a daily basis would not be considered an ordinary use. Such activities may create a greater impact on neighbouring properties and therefore raise concerns under the law of private nuisance.
Furthermore, in Fearn v Tate Gallery, the viewing platform was not being used in a common and ordinary manner. The platform attracted hundreds of thousands of visitors who could directly overlook the claimants' homes. This intensive and unusual use of the land went beyond what would normally be expected from neighbouring property use. Therefore, the Court was justified in finding that the Tate Gallery's activities could amount to a private nuisance.
In conclusion, I disagree with Hariharan's concern that the concept of "common and ordinary use" will create future legal difficulties. The distinction between ordinary residential use and extraordinary, high-impact use is generally understandable.
Note: This is not intended as legal advice; it is merely my personal opinion on the issue.
