I. Introduction and Outline

There are moments in our daily lives when we find ourselves suddenly and unexpectedly disorientated. We might think that our train is leaving the station, for example, only to realise that we are standing still and the train beside us is moving. Or we might think that the car in front of us at traffic lights is rolling backwards, only to discover that we are rolling forwards. This sense of disorientation captures well my experience on first reading the decision of the United Kingdom Supreme Court (‘UKSC’) in Fearn v Board of Trustees of The Tate Gallery.[1] Subsequent readings did little to improve my condition.

The source of my difficulty was not the Court’s unanimous agreement that ‘intense visual intrusion into someone’s domestic property is capable of amounting to a nuisance’.[2] That development, if it is one,[3] does not trouble me unduly (although I appreciate it is a cause of concern for others). Rather, it was the way in which the judgments explained the underlying principles of private nuisance that puzzled me. Could it really be that the law of nuisance was so different, and so much more complex, than I had thought, or that the law in the UK and Australia had drifted so far apart as to no longer share the same basic structure?

The issue, as others have pointed out, is that what was presented in Fearn as an orthodox account of the law was really nothing of the sort.[4] To be fair, the definition of private nuisance has always been somewhat malleable, but in Australia and New Zealand the standard offering is usually something along the lines of

an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or an interest in land [the first component], where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable [the second component].[5]

For ease of reference, I will refer to this as the ‘standard test’. British definitions are (or were) generally similar,[6] although the requirement that the interference be unreasonable is (or was) sometimes referred to as the test of the ‘reasonable user’.[7]

‘Reasonable user’ was always a misleading appellation, [8] for reasons to which I shall return shortly. Nevertheless, as Lee points out, no reformulation of the law was necessary to achieve the majority’s ‘favoured result’ in Fearn.[9] Perhaps motivated, however, by a perceived need to limit the range of circumstances in which visual intrusions might arise in future cases, Lord Leggatt (with whom Lords Reed and Lloyd-Jones agreed) saw fit to reframe the ‘core principle’ of private nuisance around a concept of ‘common and ordinary use’[10] — a reworking of Bramwell B’s pronouncement, in Bamford v Turnley, that ‘those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action.’[11] And so the ‘reasonable user’ is out, as is any test premised upon a ‘free-ranging’ notion of reasonableness[12] — for at least three reasons: (1) the term ‘reasonableness’ offers ‘no more than a way of stating a conclusion about whether the defendant’s activity is lawful and is not itself a legal standard or test which assists in reaching such a conclusion’;[13] (2) it is no defence to liability to show that the defendant’s use of land was reasonable, and so ‘reasonable user’ cannot be the determinant of liability;[14] and (3) reasonableness at large invites considerations of the public interest (as it did, in Lord Leggatt’s view, at trial).[15]

Perhaps to avoid any criticism that he was simply replacing one empty legal standard with another one (or possibly two),[16] Lord Leggatt went on to explain that the concept of ‘common and ordinary use’ is rooted in the idea of reciprocity or ‘good neighbourliness’, which in turn

gets to the nub of the rule of “give and take, live and let live” stated by Bramwell B in Bamford v Turnley. It is a principle of equal justice, a form of the golden rule that you should “do as you would be done by”. Put negatively, people cannot fairly demand of others behaviour which they would not at the same time allow others to demand of them.[17]

It seems clear, then, that ‘common and ordinary use’ is intended to instantiate a narrower conception of private nuisance than those constructed on a more general foundation of reasonableness (to limit the consideration of non-interpersonal factors),[18] and to prioritise ‘the common and ordinary use of land over special and unusual uses’[19] (thereby favouring existing uses over new ones).

In dissent, Lord Sales (with whom Lord Kitchin agreed) also accepted that the law of private nuisance is founded on principles of reciprocity and compromise between neighbours, and in some respects went further than Lord Leggatt, by expressing the view that ‘the aim of the tort of nuisance is that the freedom of neighbouring landowners regarding the use of their property should be maximised in a symmetrical way, so far as possible.’[20] Nevertheless, Lord Sales was sceptical that a principle of ‘common and ordinary use’ could carry the load that the majority wished to place on it. In his view, the rider in Bramwell B’s pronouncement that the use be ‘conveniently done’ means that reasonableness in some broader sense must still be at play,[21] and of course damage must always be reasonably foreseeable.[22] All things considered, Lord Sales concluded, ‘the alternative approach does not affirm established principle, but instead would constitute a major change in the law, by elevating one factor (whether the defendant’s use of its land is common and ordinary) to unjustified prominence’.[23] He would therefore have preferred an ‘approach based on the principle of reasonable reciprocity and compromise and application of a standard of objective reasonableness informed by the character of the relevant locality’.[24]

I agree with Lord Sales that recasting the law of private nuisance around a core principle of ‘common and ordinary use’ is descriptively and normatively problematic. At the most fundamental level, as McBride observes,

if it is possible for a defendant to commit the tort of private nuisance without themselves using any land at all, so that there is no reciprocal relationship between the defendant and the claimant, then the ‘principle of give and take, live and let live’ cannot play the sort of foundational role in the law on private nuisance that Lords Leggatt and Sales see it as playing.[25]

This was already a problem, of course, if ‘reasonable user’ was a measure of liability (or perhaps a defence). But the word ‘use’ is a misnomer for another reason, to which their Lordships do not appear to have been alive. As Balkin and Davis point out, the term ‘nuisance’ is used (confusingly) to refer to (1) the tort, (2) the effects on the claimant’s land, and (3) the state of the defendant’s land.[26] The description that seems to provide the best fit with the wider body of case law, and standard definitions in the textbooks (including the standard test noted above), is (2) — that is, nuisance is concerned with the effect on the claimant’s land.[27] On this view, the ‘use’ (or usability) of land with which private nuisance is concerned is the claimant’s. But if ‘common and ordinary use’ is reframed as the core principle of private nuisance, and applied as a replacement for the ‘reasonable user’, then the focus naturally shifts to how one or other, or perhaps both, of the parties are actually using their land. It might also, and most dangerously, be taken to suggest that nuisance involves a comparison between, or a balancing of, those competing actual uses. Of course, there is a balancing of interests of sorts going on in private nuisance, but only because the scope of the claimant’s land interest is necessarily circumscribed by the liberty interests of other land users in the area. That is what the rule of give and take implies.

This seemingly novel view of nuisance — as a tort that balances the actual uses to which the parties have put their land — appears to be reflect Lord Sales’ interpretation of the majority judgment, as well as some leading commentators,[28] and there are certainly some difficult passages in Lord Leggatt’s judgment that might sensibly be taken to support that interpretation, including (in particular) the following:

[E]ven where the defendant’s activity substantially interferes with the ordinary use and enjoyment of the claimant’s land, it will not give rise to liability if the activity is itself no more than an ordinary use of the defendant’s own land:[29]

In my view, however, the better reading of Lord Leggatt’s judgment is that ‘common and ordinary use’ is intended to operate as a unifying concept that explains and limits the application of the existing law (and the standard test), rather than replacing it with a wholly new test that requires a comparison to be made between actual land uses. This is because, on my reading of Lord Leggatt’s judgement, he employs the term ‘common and ordinary use’ (or words to that effect) in two distinct ways, each of which corresponds with a separate component of the standard test:

  1. as an objective measure of the claimant’s land interest (the first component of the standard test); and

  2. as a replacement for the ‘unreasonable interference’ requirement (the second component of the standard test).[30]

This is a rather unhelpful way of approaching things, to be sure, which can only lead to confusion. If I am correct, however, the law is still concerned, first and foremost, with the effect of the defendant’s activity on the claimant’s land, and the implications of Lord Leggatt’s judgment may not be as grave as some have feared.

The article is arranged in two main Parts. In Part II, I flesh out the arguments outlined above. I explain more fully why I think Lord Leggatt’s judgment can (and should) be read in a manner that is broadly consistent with established law and theory, and why, conversely, Lord Sales’ account is — perhaps unintentionally — quite radical. (In doing this I may be exceeding my brief slightly, which is to provide an Australian perspective on the Fearn decision, but it is hard to shoot at a moving target.) I also explore in greater detail the concepts of ordinary use, locality and sensitivity, which seem to me to reflect no more than different shades of the same idea. I demonstrate that any one or more of those concepts might be pressed into service as a means of justifying a particular outcome in a particular case, but that none can be said to operate as distinct rules or principles (as appears to have become the fashion); they are simply circumstances that guide courts in the making of value judgments (answering questions of secondary fact). As such, I doubt it would be possible or desirable to draw a hard line around ‘ordinary use’ so as to fundamentally change the nature of the underlying enquiry, and so if Lord Leggatt’s aim was to limit the range of circumstances that might be considered to those that are strictly interpersonal in nature, I think he fails.

In Part III, I offer an Australian perspective on the Fearn decision. I begin by examining two important Australian nuisance cases that have arisen in an agricultural context and demonstrate that, even assuming my conservative interpretation of Lord Leggatt’s judgment is correct, Australian law nevertheless differs in some key respects. In particular, public-benefit considerations loom large in the Australian cases, and Australian courts appear to be far more comfortable applying an open-textured approach to private nuisance than their British counterparts. For these reasons, and because a core principle of common and ordinary use fails to capture the essential nature of private nuisance, I doubt that Australian courts will embrace Lord Leggatt’s revised approach. Indeed, early indications are that Australian Courts will politely ignore this aspect of his Lordship’s judgment.[31]

II. Taking Stock of Fearn: What is ‘Common and Ordinary Use’?

A. Actual Use, Usability and (A)Symmetry of Analysis

In an article predating the decision in Fearn, Nolan warned (presciently) that,

on the orthodox conception of private nuisance one cannot plausibly explain the cause of action by reference to the resolution of competing uses of land, since the law’s concern is revealed as being with the usability of the claimant’s land, not the specific uses to which the claimant puts it (and certainly not with the uses to which the defendant puts his land, not least because private nuisance liability can attach to conduct that does not amount to a use of the defendant’s land at all).[32]

A great deal flows from this observation, and it casts an immediate shadow over the decision in Fearn. Most obviously, and as already noted, both judgments in that case appear to assume that private nuisances only ever arise between land users, which is simply incorrect.[33] But the most important point at this stage is that framing the core principle in terms of common and ordinary ‘use’ — and justifying that principle on the basis of reciprocity between the parties —suggests that the law’s central concern is with one or other, or both, of the parties’ actual uses of land, or perhaps even some sort of comparison between the two. As I have said, and as Nolan makes clear, the orthodox view is that nuisance is concerned with the effect of an activity on the objective usability of claimant’s land, and so the claimant’s actual (or specific) use of that land is simply irrelevant (although it may, and often will, match-up roughly with what is common and ordinary in the locality). Likewise, whereas the liberty interests of neighbouring land users are accounted for, at a general level, in circumscribing the claimant’s land interest (the rule of ‘give and take’), the defendant’s actual use of land is irrelevant at that stage because the claimant’s land interest must exist before the defendant can interfere with it. [34]

In contrast, it is axiomatic that individual actions in nuisance are grounded in actual interferences (whether uses of land or not) attributed to the defendant:[35] ‘Does the noise created by the defendant interfere unduly with claimant’s quietude (measured objectively)?’; ‘Does the building work on the defendant’s land interfere with the claimant’s right to lateral support? (measured objectively)’; and so on. It is whether the impact of those actual interferences on the usability of the claimant’s land is unacceptable that courts must determine, and the more out of the ordinary an interference happens to be (whether in kind, duration, frequency or extent), the more likely it is to be a nuisance.

Whereas we might therefore choose to describe private nuisance in theoretical terms as a tort that balances competing rights in land[36] — and say that the parties’ rights are, in that sense, symmetrical[37] — the legal test that we apply to determine whether a given activity amounts to a nuisance cannot be symmetrical: the question in all cases is whether the defendant’s actual activity (whether or not a use of land) unacceptably interferes with the claimant’s general (that is, ordinary or reasonable) use of land. Simply put, we are not comparing apples with apples. Indeed, we are not comparing anything; we are asking whether an apple has damaged an orange. This is clearly reflected in the structure of the standard test.

A great deal of the confusion in Fearn, I think, stems from a misplaced conviction that, to give effect to the underlying principle of reciprocity, and to ensure that ‘equal justice’ is afforded to the parties, the defendant’s actual use of land must be balanced against the claimant’s actual use of land. Lord Leggatt’s ambulatory use of the term ‘common and ordinary’ is answerable in no small part for this confusion, although as I have said — and as I explain further in the following sections — I do not think his Lordship truly means to support an approach based on a competition between actual land uses. However, Lord Sales’ certainly appears to take the view that, if the revised core principle is to be accepted, then the claimant’s actual use of land must be relevant. For example, in rejecting Lord Leggatt’s view that there can be no nuisance if the defendant’s use of land is ‘ordinary’,[38] Lord Sales states:

Such an exclusive focus [on the defendant’s use of land] places excessive weight on one side of what is an inextricably two-sided relationship. It means that if a defendant’s use of its land is outside such user a claimant only has to show that the defendant’s use has a significant unwelcome impact on the claimant’s use of its own land in order for its claim to succeed. The court is disabled from looking at the way in which the claimant has chosen to use its own land and whether the possible adoption of reasonable measures by the claimant might represent the best way to minimise and resolve the friction between the two competing uses. In a situation like the present where the respective use of its land by each of a claimant and a defendant falls outside existing standards of common and ordinary use of land in the locale, I can see no principled justification why unusual use of land by the defendant should necessarily have to give way to unusual use of land by the claimant without any attempt to balance the competing interests.[39]

With respect, this cannot be correct. The ‘equal and opposite right of the claimant to use its property’[40] cannot be protected by balancing the parties’ actual uses of their land, as if each were an opposing weight on the same scale. If nuisance is a wrong done by one party to another then, unless the claimant’s actual use of land has interfered in some way with the usability of defendant’s land, it is simply immaterial. Indeed, Lord Sales’ approach would undermine the very notions of reciprocity and equal justice that it purports to value, because it would limit the freedom of claimants to enjoy their land even though their use of that land has done nothing at all to interfere with someone else’s land. It would also mean that the same activity in the same location might amount to a nuisance against some claimants but not others. For these reasons, I also think that Lee is wrong to suggest that,

[i]n cases such as Fearn, the court should analyse the interaction between the ways in which each party is using (and choosing to use) their land, rather than considering the reasonableness of each party’s use of land in isolation.[41]

On my understanding, there is no scenario in which it would be necessary or appropriate to compare the ways in which each party is using (and choosing to use) their land, because whether the claimant’s actual use of land is common or ordinary is always beside the point.

It is necessary to qualify my proceeding comments in one important way: whereas the claimant’s actual use of land is in principle irrelevant to the question of whether the defendant’s interference amounts to a nuisance, it is nevertheless possible that a claimant’s actual use might be said to form part of the character of the locality — if, for example, the claimant and defendant are the only residents in a particular area.[42] Perhaps unsurprisingly, this issue has arisen in Australia in the context of alleged agricultural nuisances, which I explore further in the second half of this article. Apart from anything else, these cases demonstrate how hard it can be to draw hard lines around the kinds of factual consideration that might be relevant — a reality obscured by the tendency of contemporary commentators and judges (including Lord Leggatt in Fearn) to describe locality and sensitivity as free-standing ‘rules’ or ‘principles’.[43]

B. The Structure of the Revised Test

With the preceding observations squarely in mind, my aim in this section is to explain why I believe Lord Leggatt’s judgment can and should be interpreted, on a natural and plain reading, in a manner that is broadly consistent with the existing law. Specifically, my aim is to demonstrate that Lord Leggatt employs the term ‘common and ordinary use’, or words to that effect, in (at least) two distinct ways, each of which corresponds with a separate component of the standard test. That test, it will be recalled, requires:

an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or an interest in land [the first component], where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable [the second component].[44]

The first and least objectionable way in which Lord Leggatt uses the term ‘ordinary use’ is as a measure of the claimant’s land interest (the first component). Numerous examples may be offered of this usage. For example, his Lordship describes as one ‘aspect’ of the core principle the rule ‘that an occupier cannot complain if the use interfered with is not an ordinary use.’[45] And later, in endorsing one of the trial judge’s findings, he considers it to be ‘beyond doubt that the viewing and photography which take place from the Tate’s building cause a substantial interference with the ordinary use and enjoyment of the claimants’ properties’.[46] Lord Leggatt is also clear that this aspect of the test is objective, because ‘the interest protected by the law of private nuisance is the utility of land, and not the bodily security or comfort of the particular individuals occupying it.’[47] This is all entirely orthodox and, as I have said, consistent with first component of the standard test.

The second and more troublesome way in which Lord Leggatt uses the term ‘common and ordinary use’ is as a replacement for the second (‘unreasonable interference’) component of the standard test. That usage comes through clearly in his Lordship’s conclusion that the trial judge

applied the wrong legal test by framing the question he had to decide as ‘whether the Tate Modern, in operating the viewing gallery as it does, is making an unreasonable use of its land …’ … [He] asked himself whether the nature of the Tate’s use of its land is “reasonable”, instead of asking whether it is a common and ordinary use’.[48]

This followed from his Lordships earlier rejection of the ‘reasonable user’ concept as a misreading of Lord Goff’s judgment in Cambridge Water Co v Eastern Counties Leather plc. In that case, Lord Leggatt explained:

Lord Goff was expressly endorsing the principle formulated by Bramwell B in Bamford v Turnley and was using the phrase ‘reasonable user’ as a shorthand for this principle, under which ‘those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action.’ Unfortunately, this point has sometimes been overlooked and these remarks treated as if Lord Goff had been suggesting that the applicable test is one of the ‘reasonableness’ of the defendant’s use of land in a general, undefined sense.[49]

Lord Leggatt does not specify whether he sees the principle in Bamford v Turnley as a test of liability on the one hand, or as a defence (in the sense that the defendant must prove it) on the other. It seems beyond doubt that Bramwell B saw the principle as a defence.[50] However, the other majority judges in that case were equivocal on the point,[51] and in any event the modern law is clear that the onus of proving an actionable nuisance falls on the claimant — at least in cases involving an interference with amenity as opposed to physical injury. [52] Lord Leggatt does not suggest that this is incorrect, and so the most obvious conclusion is that he sees ‘common and ordinary use’ as a test of liability in amenity cases. That conclusion is further supported by his prior assertion (noted earlier) that,

even where the defendant’s activity substantially interferes with the ordinary use and enjoyment of the claimant’s land, it will not give rise to liability if the activity is itself no more than an ordinary use of the defendant’s own land.[53]

If the first part of this passage merely replicates the first component of the standard test, as concluded above, then the most literal (and least disruptive) reading of the second part, taken together with his Lordship’s conclusions on the facts, is that ‘ordinary use of the defendant’s own land’ simply replaces the second (‘unreasonable interference’) component of the standard test. In other words, liability now turns on whether there is:

  1. a substantial interference with the common and ordinary use of the claimant’s land (measured objectively); caused by

  2. a not common and ordinary use of the defendant’s land.

Assuming this is what Lord Leggatt intended, the basic structure of the standard test remains the same. The only change is to the descriptive label attached to the second component, which is narrowed from ‘unreasonable’ to ‘not common and ordinary’, mirroring the descriptive label already attached to the first component. On this reading, there is no need to compare the actual uses to which the parties have put their land, because the term ‘common and ordinary’ performs a different function at each stage: at stage (1) it determines the range of interferences that the claimant must ‘put up with’; and at stage (2) it determines whether the defendant’s actual use of land is, or is not, within that range of interferences.

One matter that remains uncertain is the precise meaning that Lord Leggatt ascribes to the term ‘substantial’.[54] To be fair, that uncertainty reflects a general lack of clarity in the law as to the distinction between the first and second component of the standard test. On one view, the requirement that the interference with the claimant’s land be substantial (the first component) operates as no more than an application of the de minimis principle (‘is the interference trivial?’), and the main work of determining the existence of a nuisance is done under the umbrella of unreasonableness (the second component). On another view, the main work of determining whether there is a nuisance is performed by the first component (‘is the interference with the claimant’s land interest substantial in the circumstances’), and the second component operates as a limit on liability when the interference is nevertheless not unreasonable. That second interpretation is probably the most widely accepted, although it also justifies more clearly the concern of some, including Lord Leggatt, that reasonableness invites courts to consider factors (such as policy and defendant fault) that go beyond the standard factual considerations that inform the first component (such as locality, time, duration, frequency, extent, and so forth).[55] Provided the focus remains on those standard factual considerations, however, the choice of approach is unlikely to matter.

If my interpretation of Lord Leggatt’s judgment is accepted, then the salient question is whether it will result in different outcomes. Lord Leggatt clearly intends that it will do so. However, putting aside the point that private nuisances do not necessarily involve any use of the defendant’s land, I doubt that his revised approach will make any great difference. Certainly, it is unlikely to limit the tort to interpersonal considerations, or to favour existing uses over new ones, for two interconnected reasons: (1) ‘common and ordinary use’ cannot be determined in isolation from the ‘locality’ and other factual circumstances, and (2) those circumstances invariably reflect (to some degree) the collective interest.

C. Locality and Ordinary Use

The observation that ‘common and ordinary use’ cannot be determined in isolation from the ‘locality’ seems relatively uncontroversial. Lord Leggat clearly accepts as much, at least when it comes to circumscribing the claimant’s land interest (the first sense in which he employs the term), since he describes it as ‘well settled that what is a “common and ordinary use of land” is to be judged having regard to the character of the locality’.[56] But it is equally true that whether the defendant’s actual use of land is ‘common or ordinary’ — the second sense in which his Lordship employs that term — could only ever be determined having regard to its potential effect on other land in the relevant locality.[57] These two components of the standard test are just flipsides of the same thing: what is common and ordinary in the locality determines the scope of the claimant’s interest in land, and so if the defendant’s actual use of land (or activity) is not common and ordinary in that locality it will be a nuisance.

Of course, we could say that it is ‘common and ordinary’ for a particular party to do a particular thing on their own land, but in nuisance the context could never be that narrow. If C claims that D is making too much noise, for example, the context must be, at minimum, the area of land that C and D share. Even that context is usually too narrow, for reasons to which I will return, but all that matters presently is that a nuisance claim could never be determined by reference to the ordinariness of the defendant’s actual use of land (the alleged nuisance) divorced from its impact on other land in the area.[58] This is true regardless of whether the question is one of ordinariness in kind (eg, ‘is the sound of a stabled horse ordinary in a residential area?’), or degree (eg, ‘is the heat emanating from the defendant’s premises ordinary in an industrial area?’).[59] In all instances, we need to take account of the locality, along with other relevant circumstances, to determine whether the defendant’s activity is ‘common and ordinary’.

The classic (but not the first)[60] statement of the so-called ‘locality principle’ was provided by Thesiger LJ in Sturges v Bridgman (‘Sturges’).[61] In finding that noise and vibration caused by Mr Bridgman’s pestles and mortars interfered with Dr Sturges’ reasonable use and enjoyment and property, Thesiger LJ famously remarked that:

whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, Judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private or actionable wrong.[62]

Beever points out that the locality principle (as he calls it) might conceivably operate in one of two ways. First, it might mean that a person has more rights, or a higher quality right, than someone else simply by virtue of where they live.[63] Beever rejects this understanding as being ‘so inconsistent with accepted legal principle that we cannot describe it as representing the law’.[64] This is clearly correct.[65] Alternatively, Beever argues, the locality principle might mean no more than that the physical features of a location (the ‘proximity of the dwellings’, the ‘thickness of the walls’, and so forth) are properly taken into account in assessing ‘where the balance between the competing rights lies’.[66] On this alternative conception, Beever explains, the ‘difference between Belgrave Square and Bermondsey is not normative but merely factual.’[67] This second conception of locality is strongly supported by the authorities.[68] As Lord Neuberger put it in Lawrence v Fen Tigers Ltd (‘Lawrence’), for example:

[A]ssessment of the character of the locality for the purpose of assessing whether a defendant’s activities constitute a nuisance is a classic issue of fact and judgment for the judge trying the case. … [T]he question whether a nuisance is established in a particular case in the light of the assessment of the character of the locality has also always been treated as a matter for the jury or the judge as the trier of fact.[69]

It does not follow from this that, in determining whether an interference constitutes a nuisance, triers of fact are free to take account of whatever they wish. Locality considerations are, in theory, governed by various legal rules. For example, a small number of ‘general framing’ rules exist, which guide triers of fact in their characterisation of the locality. These rules are legal in nature insofar as they subsist as a matter of precedent and are always applicable but, to repurpose slightly Lord Leggatt’s words in Fearn, ‘they are not formulae or mechanical rules. They involve judgment in their application’.[70] Steel identifies at least three rules that I would (tentatively) classify in this way:

(1) The focus is on the ‘immediate locality’.
(2) Localities are distinguished according to ‘standard patterns of use’ (residential, industrial, mixed, and so forth).
(3) The locality ‘principle not only permits variance in the level of permissible interference, but also the kind of permissible interference.’ [71]

Courts also sometimes attempt to preclude certain types of consideration from being taken into account in characterising a locality.[72] For example, an established use of land that constitutes a public nuisance must in theory be excluded from the characterisation of the locality.[73] (The permissible standard of interference may be that of an ‘industrial area’, for example, but not ‘an industrial area in which trucks routinely cause a public nuisance by blocking the road’.) More generally, since the broader social utility or public benefit of the defendant’s activity is supposedly irrelevant to the question of whether there is a nuisance, at least in the UK,[74] those considerations ought not to creep in ‘through the back door’, as it were, in the characterisation of the locality. This was a particular concern of Lord Leggatt, in Fearn, who took the view that the lower courts had been ‘influenced by what they perceived to be the public interest in the use made of the Tate’s viewing gallery.’[75] Further examples of rules that seek to limit the relevance of certain circumstances may be identified or inferred, although I doubt that there are many.[76]

It may be conceded, then, that the law can and does attempt to impose some minimal limits on the freedom of triers of fact to characterise a given locality, and that the matter is not therefore ‘merely’ factual. However, those limits do not appear to have much, if any, real impact in most cases. The character of a locality is, overwhelmingly, a question of evaluative fact, which judges and juries ‘may be trusted’ to decide.

This conclusion might seem trite (I certainly think that it is), but it is also easily overlooked when certain kinds of circumstance, such as locality and sensitivity, are routinely elevated to the status of legal ‘rules’ or ‘principles’. To be clear, my concern here is not one of mere pedantry, which turns on my own view as to the proper meaning of those terms.[77] Nor do I mean to suggest that those who choose to describe locality (or any other circumstance) as a rule or a principle fail to appreciate that they are ultimately dealing with questions of fact. Rather, my concern is that, by labelling specific circumstances as discrete rules or principles, we risk courting the idea that those circumstances operate in neat isolation from one another, or that some can or ought to be entirely excluded from consideration.[78] On my understanding, that is simply not possible. Locality, ordinary use and (as we will, see) sensitivity are just different shades of the same thing — the circumstances that necessarily circumscribe or explain the limits of the claimant’s security interest and the defendant’s liberty interest.

Since each circumstance flows into the other, it does not seem to matter much, from a purely practical perspective, how we label each. However, if our concern is to ensure that the law of private nuisance conforms to some preferred theoretical model, then some circumstances might be ‘out of bounds’ and our choice of label might seem important. For example, if we think that private nuisance must be justified in terms of (some conception of) corrective or interpersonal justice, then locality considerations might appear problematic because, as Steel concludes:

[T]he only plausible justification [for considering locality] rests upon considerations that go beyond the interests of the individual parties. If this is correct, then it follows that, even after Lawrence v Fen Tigers, at least one element of the unreasonable interference inquiry in private nuisance has its justificatory basis in considerations of the collective interest.[79]

This might be an obstacle for those committed to certain understandings of corrective or interpersonal justice because it is hard to see how a tort of nuisance — or anything vaguely like it — could ever function if locality considerations were excluded.[80] On my understanding, the idea that community questions regarding land use might bear upon the relevant standard is not inconsistent with corrective justice. The scope of individual rights (and therefore wrongs) can always be impacted by some forms of community judgment, without abandoning the insight that the law is about rectifying the wrongs that one person does to the interests of another. I return to this point in Part IV. But my immediate point is simply that recasting the core principle of private nuisance in terms of common and ordinary use is unlikely to limit triers of fact to interpersonal considerations, because ordinary use cannot be separated from locality considerations, and locality considerations cannot be separated from the collective interest. Whereas ‘consideration of the public interest’ might therefore have ‘fed into the judge’s assessment … through his finding that the operation of the viewing gallery is a “reasonable” use of the Tate’s land,’[81] it could just as easily have fed into a finding that the Tate’s use of land was common and ordinary.

But is the locality, and therefore the collective interest, always relevant? Steel suggests that in some (albeit presumably very few) cases, external interests might have no bearing whatsoever, and that in those cases the reasonableness of an interference can (and should) only be measured by reference to the parties’ actual uses:

Suppose that D runs a garage in a relatively isolated area. C then later builds a residential use nearby. There are no other properties in the vicinity. It is not clear that the locality principle should have much, if any, application in these situations. Neither party can claim to be more in conformity to the predominant land use in the area. Although connected, the essence of D’s argument is more ‘I was here first’ than ‘this is the way most people use their land in this area’. In this type of case, the courts ought directly to consider whether D’s interference is unreasonable by reference to the relative weighting to be given to C and D’s uses. There might be a case for giving D’s interests an extra weight given the temporal priority of D’s use, but this does not seem best expressed through the locality principle.[82]

With respect, it seems to me that external interests only appear to be excluded in this scenario because the locality has already been framed in such a way as to achieve that end. To say that the parties live in an ‘a relatively isolated area’ is a factual conclusion about the nature of the locality. It is possible that this is the only way that a trier of fact could sensibly describe the locality, but that is beside the point: it is still a necessary part of the equation (howsoever we label it). But even if we ignore this point, the parties’ actual uses are only relevant because, in the circumstances, they reflect what is objectively common and ordinary in the area — not because, isolated from the intrusion of external interests, they are revealed to be the true focal point of analysis. Finally, it is worth noting (and I do not think Steel suggests otherwise), that even if the parties are the only ones with property interests in an area, it does not necessarily follow that collective interests are irrelevant, especially when one or other of the parties is involved in the production of valuable social resources (such as crops or oil extraction), or if public safety is as stake. In such cases, collective interests are back on the table. I return to this point below in the context of Australian agricultural nuisances.

D. Sensitivity and Ordinary Use

What, then, of sensitive or special uses? Does Lord Leggatt’s judgment change the law in this area? [83] In answering this question, the first point to (re)make is that, since private nuisance is about diminution in the utility and amenity value of land, and not individual use and enjoyment as such, the test must be objective. For that reason, any sensitivity on the claimant’s part (in use or in temperament) is irrelevant.[84] As Cotton J put it in Robertson v Kilvert:

[N]o case has been cited where the doing something not in itself noxious has been held a nuisance, unless it interferes with the ordinary enjoyment of life, or the ordinary use of property for the purposes of residence or business. It would, in my opinion, be wrong to say that the doing something not in itself noxious is a nuisance because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life.

Applying this reasoning, there was no nuisance when electricity stored by a tramcar operator escaped into the ocean and interfered with the proper functioning of a submarine telegraph cable, because ‘the true comparison is with things used in the ordinary enjoyment of property’, and the telegraph cable differed ‘from such things in its peculiar liability to be affected by even minute currents of electricity’.[85] In contrast, there was a nuisance when blasting operations caused a poultry farmer’s chickens to stop laying, even though the methods that he employed to maintain production during winter months rendered his use of land sensitive, because the blasting interfered with the ordinary use and enjoyment of land in the area.[86]

Sensitivity, then, is just a synonym for ‘not ordinary’ in the first sense that Lord Leggatt employs it — that is, as something beyond the claimant’s right to use and enjoyment of land — and the remainder of his Lordship’s judgment is entirely consistent with this view:

[T]he reason for applying an objective test when assessing whether the defendant’s activity causes sufficiently serious interference to amount to a nuisance is that the injury is, strictly speaking, to the utility and amenity value of the claimant’s land, and not to the comfort of the individuals who are occupying it. The particular sensitivities or idiosyncrasies of those individuals are therefore not relevant, and the law measures the extent of the interference by reference to the sensibilities of an average or ordinary person.[87]

And again, in rejecting the defendant’s argument that Southwark London Borough Council v Tanner[88] and Hirose Electrical UK Ltd v Peak Ingredients Ltd[89] are authority for the view that abnormal sensitivity is a defence:

In each case the ‘sensitive’ nature of the physical make-up of the building did not itself provide a defence. It was simply part of the factual setting in which the claim arose and had to be decided, neutral in itself.[90]

Lord Leggat’s account therefore supports the orthodox view that nuisance is concerned with the impact of an interference on the usability of the claimant’s land, measured objectively.[91]

At times, Lord Sales appears also to support the existing law on sensitivity,[92] but at others he implicitly speaks against it. For example, he states that he can see no ‘principled justification’ why a claimant’s unusual (sensitive) use of land should not be balanced against a defendant’s unusual use of land.[93] If that were the case, sensitivity would be relevant, at least in some cases: an interference that would otherwise be a nuisance might cease to be one simply because the claimant happens to have put their land to sensitive use. As I have said, this cannot be accepted because: (1) the claimants actual use of land is irrelevant; (2) it would undermine the freedom of claimants who are causing no nuisance to use their property as they see fit, and (3) it would mean that the same activity might cause a nuisance to some claimants but not to others.

Conversely, Lord Sales states, ‘the interference by a defendant landowner might be so intrusive, according to an objective standard of reasonableness appropriate for the locale, that a nuisance could be established even if the use interfered with is not an ordinary use.’[94] This is correct, but not because the parties unusual uses are weighed in the balance with the most unusual (or unreasonable) ruled the loser; it is correct simply because the defendant’s interference is so intrusive as to fall outside the range of common and ordinary use in the locality.

Taken in context, it seems clear that Lord Sales’s reasoning here is driven by the (not unreasonable) concern that focussing solely on common and ordinary use will inhibit the capacity of courts to achieve just outcomes, by preventing broader considerations of reasonableness to be factored into their reasoning when appropriate.[95] I have some sympathy for this view, and it was of course Lord Leggatt’s intention that broader considerations of reasonableness should be excluded. However, there is simply no need for a broader principle in the scenarios to which Lord Sales refers. Perhaps there are other scenarios in which a test of common and ordinary use is too narrow. But even if that is so, it cannot operate as a blank check to abandon the basic structure of the law (reflected in the standard test), as Lord Sales appears to think.

For these reasons, I think that Lord Sales is also wrong to take account of self-help measures at the liability stage,[96] at least in the way that he did so,[97] because the claimant’s sensitive use of land is simply irrelevant to whether the impact on their land constitutes a nuisance (although it may be descriptively helpful).

Whether sensitivity ought to have some bearing at the remedial stage is a slightly different matter. Neither of the judgments in Fearn directly consider the issue because the parties led no arguments on it. However, Lord Sales expressed the view that questions of liability should not be influenced by the fact that the law allows ‘for a degree of fine-tuning of the balance at the remedies stage’,[98] and that in determining a ‘reasonable reconciliation’ between the parties’ rights, courts

can in effect require an appropriate standard of behaviour from a claimant by refusing to grant relief in circumstances where it thinks that relevant self-help measures are available, in the light of which it would be unreasonable to prevent the defendant from using its land in the manner complained of.[99]

Both of those propositions seem consistent with basic principles. What, though, of damages? It is often claimed that sensitivity engages a discrete remedial rule, according to which a sensitive claimant is entitled to recover damages to the full extent of their sensitivity, provided that the interference is objectively unreasonable (or not ordinary).[100] However, there is no clear authority for this view. The case most often referred to as supporting it is McKinnon Industries v Walker,[101] in which an Ontario car-parts manufacturer allowed noxious fumes to escape from its foundry onto the claimant’s land. The claimant was one of the largest growers of orchids in Canada, and the fumes caused damage to his orchids, along with other flora on his property such as trees and shrubs. On appeal to the Privy Council, the defendant conceded that the fumes constituted a nuisance, but argued that the injunction granted against them by the trial judge should be discharged and damages awarded in lieu. At the very least, they argued, ‘the injunction should be modified in some way to exclude the orchids from its operation.’[102] The Privy Council declined to do so:

The ground of this contention was that the growing of orchids is from the horticultural point of view a particularly difficult and delicate operation. But however this might be — and their Lordships express no opinion upon it — there is no reason to treat damage to orchids differently from damage to any other flower plant or shrub when the wrongdoer admits, as the Appellant company has here admitted, that is has violated the Respondent’s legal right by damaging his orchids.[103]

This dictum does not support the remedial rule contended for, since their Lordships formed no view as to sensitivity, the appellant had already conceded that the interference with the orchids amounted to a nuisance, and the remedy in question was an injunction. As a matter of principle, however, it would seem wrong to award substitutive damages when the claimant’s sensitivity has enlarged its loss,[104] because (again) the ‘law measures the extent of the interference by reference to the sensibilities of an average or ordinary person.’[105] Substitutive damages should therefore be limited to the losses that an ordinary (non-sensitive) land user could be expected to suffer. However, it would seem appropriate to award consequential damages for loss caused by sensitivity, subject to the normal limitations.[106]

E. Summary

If I am correct to this point, then the mere fact that the law of private nuisance in the UK has been reorganised around a core principle of ‘common and ordinary use’, subject to the proviso that it be ‘conveniently done’, does not seem to change things all that much. It was an unnecessary change, to be sure, which fails to explain some significant parts of the law and is, to that extent, incomplete. It is also likely to result in some needlessly garbled and strained reasoning in future cases because the term ‘common and ordinary’ appears to operate in at least two quite distinct ways: (1) as an objective measure of the claimant’s land interest (the first component of the standard test); and (2) as a replacement for the ‘unreasonable interference’ requirement (the second component of the standard test). Whereas the labels might have changed, however, the underlying ideas remain broadly the same.

III. An Australian Perspective

A. Introduction

How, then, does Australian law compare with the UK law post-Fearn; what, if any, insights might be gleaned from an Australian perspective; and are Australian courts likely to adopt Lord Leggatt’s revised test? In answering these questions, I begin in this Part by examining two Australian nuisance cases that have arisen in an agricultural context. There are various reasons for this choice of focus. The first is simply that agricultural nuisances arise relatively frequently in Australia, and so many of the recent judgments on private nuisance happen to involve the use of agricultural land.[107] The second reason is that agricultural cases often engage with far weightier collective or public interests than did the UKSC in Fearn, or the House of Lords in Lawrence, Kennaway v Thompson or Miller v Jackson, and so they provide a powerful challenge to the orthodox view that public benefit is (or should be) irrelevant to the resolution of private rights. The third reason is that some of these cases, and in particular Marsh v Baxter (‘Marsh’), demonstrate the inherent futility of trying to impose hard-line rules on what are inescapably fact-sensitive decisions. Indeed, Australian courts appear to be far more comfortable than UK courts in adopting an open-textured approach to nuisance. I then briefly consider Hunt Leather v Transport for NSW (‘Hunt Leather’),[108] the first Australian case to consider the impact of Fearn on Australian law. I conclude that Australian courts are highly unlikely to change their approach to match Lord Leggatt’s test of common and ordinary use.

B. Southern Properties (WA) Pty Ltd v Executive Director of Department of Conservation and Land Management

In Southern Properties (WA) Pty Ltd v Executive Director of Department of Conservation and Land Management (‘Southern Properties’),[109] the claimants owned (P1) and operated (P2) a winery on land that ran along the north-eastern boundary of the Warren National Park. Officers of the Department of Conservation and Land Management carried out a prescribed burn in the area immediately adjoining the claimant’s land, subject to a ‘master burn plan’ established by the Department. This plan was in turn prepared pursuant to the Department’s statutory duties. Smoke from the burn damaged the claimant’s wine grapes, causing them significant economic loss. The claimants sued in negligence and nuisance,[110] but no arguments were led at trial on the nuisance issue and no finding on nuisance was made by the trial judge. On appeal, McLure P (Buss JA agreeing) and Pullin JA (in dissent) determined that the claimant had not expressly abandoned their claim in nuisance, and so proceeded on the understanding that the claim had gone unanswered at trial.[111]

The majority decided the appeal on the basis that the defendant had a defence of statutory authority,[112] and so McLure P’s comments on private nuisance are, strictly speaking, obiter, but they have been cited as general and unchallenged authority on the law in subsequent cases.[113] In outlining the general principles of law applicable to the appeal on nuisance, McLure P stated:

To constitute a nuisance, the interference must be unreasonable. In making that judgment, regard is had to a variety of factors including: the nature and extent of the harm or interference; the social or public interest value in the defendant’s activity; the hypersensitivity (if any) of the user or use of the claimant’s land; the nature of established uses in the locality (eg residential, industrial, rural); whether all reasonable precautions were taken to minimise any interference; and the type of damage suffered.[114]

Applying these principles, McLure P concluded:

There is a compelling case that, even though smoke from the prescribed burn … caused property damage, it did not constitute an unreasonable interference with the appellants’ land. Prescribed burning has been a feature of the south-west forests for over 80 years, long before the arrival of vineyards in the area; the evidence established that it is in the public interest of the community as a whole to carry out prescribed burning in the south-west forests in order to (inter alia) reduce the risk to persons and property from wildfires, which are commonplace in the region; the reduction in risk from wildfires is also in the interests of persons who have commercial vineyards on their land; smoke is the inevitable and unavoidable consequence of prescribed burning (and wildfires)…[115]

Two overlapping external interests therefore appear to have played a role in McLure P’s reasoning. The first, and presumably the weightiest, was the (very real) risk to persons and property from wildfires; the second was the collective interest of commercial vineyards, including the claimants’, and, perhaps, other agricultural operations in the area.

McLure P’s approach clearly supports Lord Leggatt’s concern, in Fearn, that considerations of the public interest might feed into judicial assessments as to the ‘reasonableness’ of an interference with land,[116] and Mclure P offered no authority in support of her view that the public benefit is a relevant consideration. Indeed, her Honour’s view does not sit easily with prior Australian authority,[117] although it is not necessarily inconsistent with it. In Munro v Southern Dairies Ltd, Sholl J stated that the public usefulness of a business or its broader public benefit are ‘insufficient to justify what otherwise would amount to a nuisance’.[118] However, this does not seem to foreclose the possibility that social utility might be considered as one factor among others, as McLure P appears to have done (or would have done) in Southern Properties.[119]

Most of the leading Australian texts nevertheless take the view that social utility has no bearing on liability in private nuisance,[120] while accepting that the nature of the defendant’s activity might be relevant to a limited degree.[121] In her chapter on Nuisance in Flemings Law of Torts, for example, Giliker accepts that some consideration must be given to whether an activity is essential or unavoidable, but warns that such arguments ‘must not be pushed too far.’[122] If there is a public interest the public should bear the loss,

a result that can be accomplished either by holding the defendant liable in the first place and letting him charge the expense to the benefiting public as a cost item of his services or alternatively by conferring statutory authorisation on the enterprise, coupled (hopefully) with provision for compensating persons injuriously affected, so that the cost is shared equally by the community at large.[123]

For this reason, given that the defendants in Southern Properties were found to be protected by the defence of statutory authority, it might be argued that the public benefit was already accounted for, and that McLure P was therefore wrong to take it into account in the circumstances — and all the more so since the Conservation and Land Management Act 1984 (WA) makes no provision for compensation. On the other hand, McLure P’s decision to consider the public benefit might be justified on the basis that it is consistent with the underlying policy of the statutory scheme, which is not to pass on to the public the social costs of damage accidentally caused by a prescribed burn.[124]

However, and importantly, even if McLure P had not explicitly identified the public interest as justifying an interference with the claimant’s private land interest, that interest might just as easily have factored into her Honour’s assessment of the scope of the claimant’s land interest in the first place. Certainly, when a private individual occupies land in a locality dominated by a public entity such as a land management department or a forestry commission, it does not seem unreasonable to suggest that the public entity’s general use of that land, which just happens to be in the public interest, forms part of the character of the locality.

But whatever view is taken as to the merit of McLure P’s judgment in the specific circumstances of that case, in a world of limited resources and increasingly gloomy forecasts as to the likely costs of climate change, should public safety, food security and access to other essential services really be imperilled in the interests of private rights? If the public benefit is always irrelevant to liability, then we run that risk. The problem is far from academic, especially in Australia, where bushfires represent an ever-present and ever-worsening threat to life and property; agrifood is worth upwards of 64 billion (AUD) to the national economy;[125] and farmland alone accounts for approximately 427 million hectares of land.[126] (To put that last point in perspective, the total land area of the UK is only 24 million hectares). Legislatures might be expected to account for the public interest in many cases, as Giliker suggests, but certainly not all of them.[127] Given how hard it is to disentangle or exclude the public or collective interest from the nuisance enquiry in any event,[128] it might be wondered whether it is not better, all things considered, simply to accept that those considerations might have a bearing, and to openly account for this possibility (as McLure P does).

Two final points bear mentioning. The first is that McLure P’s analysis in Southern Properties does not appear to have been carried out on the basis that the parties were the only landowners in the immediate area. This seems appropriate, given the scale of the burn and its likely impact on other residents, including other wine growers, but it also demonstrates the limitations of the rule that the focus ought to be on the immediate locality (in this instance, the locality was probably somewhere in the region of 600 hectares). The second point is that McLure P clearly sees locality and sensitivity as factors, not free-standing rules or principles.

C. Marsh v Baxter

The facts of Marsh are complex and the judgments lengthy, but the essential details may be readily distilled for present purposes. The claimants were organic farmers who owned nearly 500 hectares of land in the Kojonup region of Western Australia. Their land was certified as ‘organic’ under an agreement with a subsidiary of the National Association of Sustainable Agriculture Australia (‘NASAA’). That agreement incorporated an organic Standard, the purpose of which was to protect ‘the integrity of the organic product by ensuring no contamination by mixing with, or exposure to, non-organic product.’[129] It also provided, among other things, that certification could be withdrawn ‘where NASAA considers there is an unacceptable risk of contamination from GMOs [‘Genetically Modified Organisms’] or their derivatives.’[130]

The defendant owned 900 hectares of farmland, the Eastern boundary of which ran for some way along the Western boundary of the claimants’ land, separated only by a wide road. The parties were well acquainted, and the defendant was aware that, on at least one prior occasion, canola plants from his land had blown onto the claimants’ land. He was also aware that, if these had been genetically modified (‘GM’) plants, the claimants risked losing their organic certification.[131]

Prior to 2010, the defendant operated a conventional farming operation, but following the removal of a statutory prohibition on the cultivation of certain GM crops he elected to grow GM canola in two paddocks immediately adjacent to the claimant.[132] He advised the claimants of his plans and, to minimise the risk of contamination, they modified their crop rotation to create a buffer zone between the GM canola and their organic crop.

The defendant ordinarily adopted a technique known as ‘direct heading’, which involves the use of a conventional harvesting machine, but he elected to harvest his 2010 GM canola crop using a technique known as ‘swathing’, which ‘involves cutting the canola stalks approximately 15 – 20 cm above ground level before the canola seed is fully ripe and dry and laying them in windrows.’[133] Swathing creates a higher risk of contamination than direct heading because ‘strong winds [and animals] can move the drying plants into adjacent paddocks’,[134] but it also reduces ‘the risk of late damage to the crop and seed loss.’[135] The former risk materialised, and samples taken from the claimants’ land were found to contain GM canola. A decertification notice was subsequently issued for seven paddocks, causing the claimants considerable inconvenience and economic loss.[136] No physical damage was done to their land.

The claimants’ claim in nuisance was ‘that the respondent failed to harvest the GM crop in a manner that would have avoided the damage’ to their use of land ‘as an organic farm without appreciably prejudicing the respondent’s own interests.’[137] The defendant responded that organic farming was, in 2010, an isolated practice in Kojonup, and that the claimants’ use of land was hypersensitive because their NASAA contract exposed them to the risk of decertification. [138]

McLure P (in dissent) and Newness and Murphy JJA (in majority) reached diametrically opposed views on two critical findings of fact: (1) the character of the locality; and (2) the legitimacy of swathing.

Finding for the claimants and applying the same principles that she identified in Southern Properties,[139] McLure P framed the locality to include the claimants’ specific use of land: that is, she accepted as a matter of fact that organic farming was a standard practice, or an ordinary use of land, in the Kojonup region. The fact that this use rendered the claimants sensitive to decertification was therefore irrelevant. In contrast, her Honour took the view that GM farming was not a standard practice in the area, and so not an ordinary use of land.[140] That alone was not sufficient to render the defendant’s conduct a nuisance. However, the defendant had ‘failed to harvest the GM canola crop in a manner which would have made it possible to avoid the damage caused … without appreciable prejudice to his own interests’.[141] It was not, in other words, ‘conveniently done’. On balance, then, the incursion was unreasonable, and that would have been so, in McLure P’s view, even if the claimant’s use had been sensitive.[142]

Finding for the defendant, Newnes and Murphy JJA concluded that organic farming was an ‘isolated practice’ in the region.[143] In contrast, conventional broadacre farming was standard practice in the Kojonup region, and so the question was whether the ‘incursion of swathes involved an interference which was beyond what an ordinary average resident [a conventional farmer] of the district ought reasonably to have expected under the circumstances.’[144] The majority held that the incursion of GM products would not have damaged conventional (non-organic) crops,[145] and the defendant’s decision to adopt the swathing technique did not render that ordinary use unreasonable, as it was a justifiable choice based on expert findings.[146] In contrast, viewed against that background, the claimants had chosen to adopt a sensitive use of their land and could not pass their losses on to the defendant.[147]

Three things strike me as particularly noteworthy about the judgments in Marsh, for present purposes. First, McLure P did not, as it might appear, weigh the defendant’s actual use of land against the claimants’ actual use of land. Rather, she held that the standard pattern of uses in the locality happened to include the claimant’s actual use of land. The evaluative exercise therefore remained objective, albeit that the locality was framed at a relatively low degree of generality. Indeed, all of the judges accepted that the relevant locality was the broader Kojonup region, despite the fact that the parties were the only residents in what we might describe as the ‘immediate’ locality (that is, the area of land that they shared). Yet, if ever there were a real-world scenario in which the court ‘ought directly to consider whether D’s interference is unreasonable by reference to the relative weighting to be given to C and D’s uses’,[148] as in Steel’s garage example cited earlier, this was it. It might be argued that the judges were simply wrong to frame the locality as the broader region, and that the matter should have been resolved by asking whether the prejudice to the claimants’ use of land outweighed the prejudice to the defendant’s freedom to use his land as he did. But it is not clear to me on what basis that sort of comparison could ever be made. At any rate we would need a whole new frame of reference to make it. This supports the basic point emphasised in Part II, above, that private nuisance is ultimately best understood in terms of its effect on the usability of the claimant’s land, not a weighing-up of competing uses. It also demonstrates that locality is always relevant, at least to some degree.

The second point is that public benefit considerations once again bore heavily on McLure P’s findings. One of the justifications for her Honour’s conclusion that the relevant comparison was between organic and GM farmers was that ‘the NASAA Standard serves mainstream agricultural and economic values’. In contrast, she appears to have been far less moved by the defendant’s contention that GM products increase ‘the yields from arable land in order to contribute to feeding the world’s ever-increasing population.’[149] Interestingly, no challenge to this aspect of McLure P’s reasoning appears to have been made during application for special leave to appeal to the High Court.[150] Newness and Murphy JJA made no explicit mention of the public benefit in their judgment. Although they did not expressly disagree with McLure P’s statement of the law, nor did they endorse it, and the authorities to which they referred — including Bramwell B’s famous passage in Bamford v Turnley — were entirely orthodox.[151] Their framing of the locality also appeared to be based on a ‘snapshot’ of the region at the relevant time, which placed no emphasis on prior uses (organic farming had been undertaken for some time, whereas GM farming was new) or the public benefit of either parties’ land use.

The third and final point is that the markedly different conclusions reached by the majority and minority in Marsh demonstrate the inherent futility of trying to impose hard-line rules on what are inescapably fact-sensitive decisions.

D. Hunt Leather v Transport for NSW

How then, if at all, might the judgment in Fearn affect the law in Australia? At the time or writing, Fearn has only (to my knowledge) been considered once by the Australian judiciary. In Hunt Leather,[152] a number of local businesses complained that the construction of the Sydney Light Rail system constituted a nuisance. Their argument was not that the construction activities, in and of themselves, constituted a nuisance, but rather that (at the risk of oversimplifying matters) those works could have been organised in such a way as to cause less of an impact on their businesses.[153] In their pleadings, the claimants argued that the construction work constituted a nuisance because, inter alia, it was not a ‘common and ordinary use’ of the roads constituting the light rail route.[154] If that was accepted, they argued, it was necessary only to further establish that the interference with their land was substantial, because ‘questions of reasonableness do not arise’.[155] These arguments were presumably encouraged by the judgments in Fearn, although there is no clear indication of this in the decision.

Having examined the existing authorities, including the judgments in Fearn, the more recent UKSC decision in Jalla v Shell International Trading and Shipping Co Ltd,[156] and Southern Properties, Cavanagh J concluded simply that, in order to succeed in a claim for private nuisance in Australia,

the plaintiffs must establish that there has been an interference with their use of the land which was substantial and unreasonable. What is unreasonable must be considered objectively between the parties having regard to a range of factors.’[157]

In other words, his Honour affirmed that the standard test remains good law in Australia and that, in his view, it is at the second ‘unreasonable interference’ stage of the analysis that the usual factors (such as locality) are taken into account. Presumably because of the way in which the claimant’s case had been pleaded, Cavanagh J nevertheless went on to ask ‘whether a description of the defendant’s use of the land as not being common and ordinary changes or reduces the requirements for an actionable nuisance’?[158] Consistently with his Honour’s earlier conclusions, he answered that question in the negative:[159] although the use of the roads ‘for the purposes of constructing the light rail’ was, on his assessment, an ‘exceptional’ (not ordinary) use of land, that finding was ‘merely a factor to be assessed in considering the reasonableness of the interference.’[160] In answer to that broader question, Cavanagh J concluded that there was a nuisance to some, but not all, of the claimants. Although the activity was a reasonable use of land for some of its duration, it became unreasonable in respect of the successful claimants during the period in which the works extended beyond the timeframe estimated in the original plans.[161]

IV. Conclusion

The judgments in Fearn seem to me to suffer from the same fundamental deficiency as several earlier English decisions, in that they confuse (or at least encourage the reader to confuse) the distinction between the actual use of land and the usability of land. However, Lord Leggatt’s revised approach does not actually appear to change the basic structure of the standard test, or to limit the range of factual circumstances that might be relevant. Certainly, his revised approach seems no more likely to exclude considerations of the public benefit than the standard test, and it does nothing change the fact that the law is ultimately concerned with the effect of the defendant’s conduct on the usability of the claimant’s land.

In contrast, Lord Sales’ judgment, while superficially appealing to the status quo, lays the foundation for what is in truth a novel and, it seems to me, quite dangerous conception of nuisance, according to which the law balances the actual uses to which the parties choose to put their land. That approach would undermine the freedom of claimants to use their land as they wish and cannot be rationalised with the orthodox view that nuisance is a tort to land. (It may also require Balkin and Davis to add a new entry to their list of the various ways in which judges use the term ‘nuisance’.)

It will come as no surprise to hear, then, that on my assessment Australian courts are unlikely to adopt Lord Leggatt’s revised core principle, or to be wrong-footed by Lord Sales’ judgment. Certainly, in Hunt Leather, Cavanagh J appears to have politely steered around the difficulties presented by Lord Leggatt’s judgment in Fearn, and earlier cases indicate that Australian courts are moving in the opposite direction to their English counterparts, towards a more open-textured account of nuisance that trusts triers of fact to properly discern for themselves the circumstances that bear upon their evaluative judgment. As we have seen, those circumstances would appear to include considerations of the public benefit. We might complain that this is heresy, but it seems highly doubtful that considerations of the public benefit could ever be entirely removed from the equation (even if it is not openly accounted for), and the relative weight of that benefit is only likely to increase over time. And whereas it is one thing to say that the public benefit in playing cricket, accessing water sports, watching motor sport or gaining a view of a city should have no bearing on private rights, it is quite another to say that we should entirely ignore the clear public interest in matters such as securing basic food security and public safety.


  1. [2023] UKSC 4.

  2. ibid [179] (Leggatt LJ). See also ibid [202] (Sales LJ).

  3. Certainly, it does not seem to me to be inconsistent with Victoria Park Racing and Recreations Gound v Taylor (1937) 58 CLR 479, since the defendant in that case did not interfere with the usability of the claimant’s land. The gravamen of the complaint was that the defendant’s conduct interfered with the profitable conduct of the claimant’s business: 493 (Latham CJ); 508 (Dixon J).

  4. James Lee, for example, concludes that Fearn ‘amounts to a major extension of the tort of private nuisance, framed as an orthodox clarification but engendering uncertainty’: James Lee, ‘Different View of Nuisance’ (2023) 139 LQR 535, 541.

  5. RP Balkin and JR Davis, Law of Torts (5th edn, LexisNexis 2013) 463. See also Harold Lunts et al, Torts: Cases, Legislation and Commentary (9th edn, LexisNexis 2021) 849.

  6. See, eg, Donal Nolan, ‘“A Tort Against Land”: Private Nuisance as a Property Tort’ in Donal Nolan and Andrew Robertson (eds), Rights and Private Law (Hart, 2012) 459, 463.

  7. ibid 468; Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264, 299 (Goff LJ); Cf Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312, [46], [60]–[72] (Carnwath LJ).

  8. Nolan, ‘A Tort Against Land’ (n 6) 468–9.

  9. Lee (n 4).

  10. As McBride puts it, ‘the concept of a “common and ordinary use of land” now plays an expanded and hugely important role in the law of private nuisance with complaints about neighbours’ building or demolition works ([37]), the locality rule ([38]–[41]), and rules about hypersensitivity ([25], [62]–[72]) all being interpreted through this lens’: Nicholas McBride, ‘“A Straightforward Case of Nuisance”’: A Note on Fearn v Tate Gallery [2023] UKSC 4’ (University of Cambridge, Legal Studies Research Paper Series, April 2023, No 14/2023) 10. See also Lee (n 4).

  11. (1862) 3 B & S 66, 83.

  12. Fearn (n 1) [20].

  13. ibid [18]–[19], citing Allan Beever, The Law of Private Nuisance (Hart 2013) 10; Donal Nolan and James Goudkamp, Winfield and Jolowicz on Tort (20th edn, Sweet and Maxwell 2020) [15-017].

  14. Fearn (n 1) [29]–[31].

  15. ibid [115].

  16. It is not entirely clear whether the words ‘common’ and ‘ordinary’ are intended to do different work, or amount to the same thing. However, Lord Leggatt appears to focus on the term ‘ordinary’, which suggests that he sees the terms as synonyms.

  17. Fearn (n 1) [33]. References to ‘reciprocity’ and ‘equal justice’ are made liberally throughout his Lordship’s judgment. See ibid [20], [34], [38], [54], [63], [84], [121].

  18. ibid [246] (Sales LJ).

  19. ibid [35].

  20. ibid [210] (emphasis added).

  21. See also Windeyer J in Gartner v Kidman (1962) 108 CLR 12, 44. No doubt Bramwell B intended ‘conveniently done’ to mean ‘done in a reasonable and proper manner’.

  22. Fearn (n 1) [167]. See also [226].

  23. ibid [245].

  24. ibid [252].

  25. McBride (n 10) 9.

  26. Balkin and Davis (n 5) 463; Luntz et al (n 5) 849.

  27. See, eg, Tony Weir An Introduction to Tort Law (2nd edn, OUP 2006) 160: the ‘question is neither what is reasonable in the eyes of the defendant or even the claimant (for one cannot by being unduly sensitive, constrain one’s neighbour’s freedoms), but what objectively a normal person would find it reasonable to have to put up with.’

  28. See, eg, Lee (n 4); McBride (n 10).

  29. Fearn (n 1) [27].

  30. See, in particular, ibid [24]­–[28] — a section titled ‘The ordinary use of land’ — in which Lord Leggatt describes (1) and (2) as ‘converse propositions’. It is possible that Lord Leggatt also sees ‘common and ordinary use’ as a defence in some instances, as it was used by Baron Bramwell in Bamford v Turnley (n 11) 82–3. For a fuller explanation, see Part II.B, below.

  31. See the discussion of Hunt Leather Pty Ltd v Transport for NSW [2023] NSWSC 840 in Part III.D, below.

  32. Donal Nolan, ‘The Essence of Private Nuisance’ in Ben McFarlane and Sinéad Agnew (eds), Modern Studies in Property Law, Volume 10 (Hart 2019) 71, 75. Of course, the fact that a defendant is using their own land might nevertheless bear upon how the law balances the respective interests of the parties, because there are certain things that people should be allowed to do on their land that they have no legal interest in doing when they are not on their land.

  33. See, eg, Kraemers v A-G of Tasmania [1966] Tas SR 113; Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486. McBride argues that ‘best way of reconciling Fearn with the law preceding it would be to say that after Fearn, the law on private nuisance is primarily concerned with regulating competing land uses, and does so by reference to a ‘principle of give and take, live and let live’ — but that the law on private nuisance extends beyond these kinds of cases to cases where the use value of the claimant’s land is affected by an activity conducted by the defendant not on land but in the air or on the street, and whether that kind of activity amounts to a nuisance is decided by analogy with the competing land use cases’. (n 10) 10.

  34. Of course, the defendant’s actual use will often coincide with what is common in the locality, and if the only parties in the locality are the claimant and defendant then the fact that the defendant has historically engaged in the actual use of land complained of might shape character of the locality. However, that does not change the logical order of analysis; the claimant’s land interest must still exist before we can determine whether the defendant’s actual use of land (or activity) has interfered with it.

  35. A point that Nolan clearly acknowledges: ‘[N]uisance litigation is usually focused on whether on the facts of the case a particular interference with the use and enjoyment of land is a substantial one.’ A Tort Against Land (n 6) 465. See also Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822 [187] (Lord Carnwath) (‘Lawrence’).

  36. This may be all that Lord Leggatt means. See, eg, Fearn (n 1) [18], where his Lordship states: ‘At a general level, the law of private nuisance is concerned with maintaining a balance between the conflicting rights of neighbouring landowners’.

  37. ibid [210] (Lord Sales).

  38. ibid

  39. ibid [227]. See also [242].

  40. ibid [242].

  41. Lee (n 4). To be clear, I agree with Lee that the alternative approach he identifies is also wrong. Indeed, I do not think it is possible to consider the reasonableness (or ordinariness) of each party’s use of land in isolation, because this can only be determined contextually, having regard to reasonable and ordinary use in the relevant locality.

  42. See the discussion of Marsh v Baxter [2015] WASCA 169 in Part III.C.

  43. See, eg, Fearn (n 1) [20] (Leggatt LJ).

  44. Balkin and Davis (n 5) (emphasis added).

  45. ibid [25].

  46. ibid [48].

  47. ibid [23].

  48. ibid [54].

  49. ibid [29].

  50. Bamford v Turnley (n 11) 82–3.

  51. ibid 73–4 (Williams J; delivering the judgment of Erle CJ, Keating J, Wilde B and himself).

  52. In cases of physical injury there is an argument that, provided the damage is not trivial, the onus shifts to the defendant to justify the interference (on the basis, for example, that they were a reasonable or natural user of land). This view is generally attributed to the judgment of Lord Westbury in St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642, 650-1. However, that position, and other implications of Lord Westbury’s judgment, remain controversial.

  53. Fearn (n 1) [27] (emphasis added).

  54. In a section titled ‘[t]he interference must be substantial’, Lord Leggatt states that ‘courts have adopted varying phraseology to express the point that the interference with the use of the claimant’s land must exceed a minimum level of seriousness to justify the law’s intervention’, and that ‘the courts will not entertain claims for minor annoyances’. ibid [22]. These passages suggest that substantial operates as no more than a de minimis requirement. However, subsequent comments suggest that his Lordship sees the requirement that the interference be substantial as the primary test of liability. For example, in endorsing one of the trial judge’s findings, he considers it to be ‘beyond doubt that the viewing and photography which take place from the Tate’s building cause a substantial interference with the ordinary use and enjoyment of the claimants’ properties’. ibid [48].

  55. Were it otherwise, on this view, the second component would add nothing the first.

  56. Fearn (n 1) [38].

  57. Cf Lord Sales, ibid [234]–[235], who identifies locality as a separate consideration to common and ordinary use. This indicates, in his Lordships view, ‘that a broader test of objective reasonableness is being applied than simple examination of whether the defendant’s use of its land is common and ordinary.’ I do no disagree that a broader test of reasonableness is employed, but in my view locality considerations are nevertheless inherent in the concept of common and ordinary use.

  58. Cf Lee (n 4).

  59. Lord Leggatt appears to embrace ordinariness in both senses — degree and kind — in his explication of the core principle. See Fearn (n 1) [23], citing Ball v Ray (1873) LR 8 Ch App 467 and Robinson v Kilvert (1889) 41 Ch D 88.

  60. On of the earliest statements of the principle appears in St Helen’s Smelting (n 52) 650–1 (Westbury LC).

  61. (1879) 11 Ch D 852.

  62. ibid, 865.

  63. Beever (n 13) 31.

  64. ibid

  65. Fearn (n 1) [38] (Leggatt LJ).

  66. Beever (n 13) 32.

  67. ibid 31. It goes without saying, I think, that factual determinations nevertheless play a normative role, by indicating to citizens where the appropriate balance of interests lies in certain contexts. See Fearn (n 1) [236] (Sales LJ).

  68. In Australia, see Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79 [118] (‘Southern Properties’) (McClure P, Buss JA agreeing),

  69. Lawrence (n 35) [59] (Neuberger LJ); [190] (Carnwath LJ).

  70. Fearn (n 1) [20] (Leggatt LJ). His Lordship was here describing what he saw as the underlying principles of nuisance. He was not concerned specifically with locality.

  71. Sandy Steel, ‘The Locality Principle in Private Law’ (2017) 76(1) CLJ 145, 148–9.

  72. These questions are comparable with the legal questions that sometimes arise in determining the standard of care in negligence, such as whether a personal characteristic of one of the parties (eg, age, disability, inexperience or special skill) can qualify the reasonable person in their position. Such questions are legal in nature because their answers create precedents, the effect of which is to exclude or include certain characteristics from the standard against which triers of fact may assess reasonableness in future cases. It is for this reason, for example, that we would describe the standard of care in negligence as that of a ‘reasonable 5-year-old’, but that we would never defer to the standard of a ‘reasonable but inexperienced doctor.’ However, courts do not typically distinguish between legal questions that go to the permissible standard of interference in nuisance from the broader factual question of whether the interference is unreasonable.

  73. Sturges (n 61) 865; Lawrence (n 35) [76] (Neuberger LJ); Steel (n 71) 149.

  74. Miller v Jackson [1977] QB 966; Kennaway v Thompson [1981] QB 88; Lawrence (n 35) [156] (Lord Sumption); [193] (Lord Carnwath); Cf Marsh (n 42) [120]–[124] (McLure P; Buss JA agreeing).

  75. Fearn (n 1) [114].

  76. Steel (n 71) argues, for example, that ‘it must presumably be the case that the permissible standard of interference in a locality will not be defined by reference to a set of unreasonable uses’, albeit noting the potential circularity of this idea: at 149. Cf Lawrence (n 35) [63] (Lord Neuberger). Whether a grant of planning permission can be a relevant factual consideration in characterising the locality also falls into this category. The answer is a qualified yes (it is of evidential value), although planning permission will not ordinarily provide a defence: Lawrence (n 35) [77]–[99] (Lord Neuberger); [193], [223] (Lord Carnwath).

  77. As I see it, principles are general positions or values held by the law (such as the neighbour principle or the compensatory principle), which must be instantiated by specific rules to resolve disputes between parties. That view is, I think, broadly consistent with Neil McCormick’s: ‘Why Cases Have Rationes and Wat These Are’, in L Goldstein (ed), Precedent in Law (Clarendon Press 1987) 153, 170. In contrast, I take Steel to use the term ‘principle’ in a more general philosophical sense, which amounts to, in effect, a ‘reason’.

  78. For example, Nolan observes that some ‘critical legal scholars have discerned in it a judicial conspiracy to keep the poor and downtrodden in their place’. A Tort Against Land (n 6) 472, citing J Conaghan and W Mansell, The Wrongs of Tort (2nd edn ,London, Pluto Press 1999) 137.

  79. Steel (n 71) 166–7. See also Lord Carnwath’s concession in Lawrence (n 35) [222] that the ‘public interest comes into play in the limited sense accepted by Lord Westbury … [T]hat is in evaluating the pattern of uses “necessary… for the benefit of the inhabitants of the town and of the public at large”’. See further Maria Lee, ‘Visual Intrusion, Public Interests and Private Nuisance Fearn v Tate’ (2023) 82(2) CLJ 208.

  80. Cf Beever (n 13) 31–3; Steel (n 71) 153.

  81. Fearn (n 1) [115] (Leggatt LJ).

  82. Steel (n 71) 163.

  83. I have generally avoided the term ‘hypersensitive’ here because it seems to me to add little insofar as the underlying doctrine is concerned. Either a use in sensitive (nor ordinary) or it is not (ordinary). It may be, however, that the difference between sensitive and hypersensitive use is important for other reasons, such as to indicate that certain uses, though sensitive, are nevertheless commonplace. See Barker et al, The Law of Torts in Australia (OUP 2011) 191–2.

  84. Network Rail Infrastructure Ltd v Williams [2018] EWCA Civ 1514 [43] (Etherton MR).

  85. The Eastern and South African Telegraph Company Limited v The Cape Town Tramway Companies Limited (The Cape of Good Hope) [1902] UKPC 14 (18 April 1902) 6. Likewise, a power line that interfered with a television relay, disrupting service to subscribers, did not constitute a nuisance because (among other reasons) the antennae in question required greater protection from electrical interference than a normal (household) antennae. Bridlington Relay ltd v Yorkshire Electricity Board [1965] Ch 436. See also Noyes v Huron & Erie Mortgage Corp [1932] 3 DLR 143 (floodlighting that interfered with ability to project adverts onto a building’s roof not a nuisance because business was of an ‘extraordinary’ nature).

  86. McMahon v Catanzaro [1961] QWN 22. See also Network Rail (n 84) [43] (Etherton MR), citing Barr (n 7) [36] (Carnwath LJ).

  87. Fearn (n 1) [68].

  88. [2001] 1 AC 1.

  89. (2011) 4 JPL 429.

  90. Fearn (n 1) [71].

  91. Lord Leggatt does take the view, ibid at [43], citing Thesiger LJ in Sturges (n 61) 865, that there must be an interference with an ‘actual use of the claimant’s property’, as opposed to a potential use. However, if that is indeed a requirement it is best understood as a condition of actionability; the test itself remains objective.

  92. Fearn (n 1) [222]–[223].

  93. Ibid [227].

  94. ibid [242].

  95. ibid [240]–[242]. To be clear, I think Lord Sales is correct to say that reasonableness is perfectly workable standard, at least when applied to certain ends.

  96. ibid [214]–[216]; [226]. At [263], Lord Sales agreed with the trial judge that ‘privacy is a bit different’ to other interferences, such as dust noise, the victims of which would not be expected to self-help, because it is acceptable to expect those wishing to enhance it to protect their own interests.’ However, it is not clear why this so. A visual intrusion will need to be relatively severe to count as a nuisance in the first place, measured objectively against ordinary use in the locality, so why would anyone be expected to protect against such an interference?

  97. It is one thing to say that reasonable people in the locality would use curtains or blinds, regardless of the features of their property, and that the claimant is only sensitive because they have failed to comply with that norm. It is quite another thing to say that the interference was not a nuisance because the claimants could have remedied their own sensitivity by using curtains or blinds, even though the interference was objectively unreasonable (not common and ordinary). Lord Sales appears to have accepted the latter argument (Fearn (n 1) [183], [263], [273]). Victoria Park Racing (n 3) is not to the point because in that case there was no nuisance regardless of any sensitivity. It was on that basis that Latham J remarked that a claimant who disliked being looked at could build a higher fence (at 494).

  98. Fearn (n 1) [224].

  99. ibid [216].

  100. Luntz et al (n 5) 872; Barker et al (n 83)192; Balkin and Davies (n 5) 469.

  101. [1951] UKPC 21, [1951] WN 401.

  102. ibid, 23–4.

  103. ibid

  104. That is to say, damages that instantiate the wrong as distinct from its consequences. See, eg, Robert Stevens, Torts and Rights (OUP 2007) ch 4; Robert Stevens, ‘Damages and the Right to Performance: A Golden Victory or Not?’ in JW Neyers, R Bronaugh, and SGA Pitel (eds), Exploring Contract Law (Hart 2009); David Winterton, Money Awards in Contract Law (Hart 2015).

  105. Fearn (n 1) [68] (Leggatt LJ).

  106. Barker et al (n 83) 192 indicate that this is their understanding of the law, as do Balkin and Davis (n 5) 469. Certainly, there is no obvious reason why loss due to a special sensitivity should be treated any differently to any other consequential loss. A nice example of a case in which damages for consequential loss were denied is Gales Holdings Pty Limited v Tweed Shire Council [2013] NSWCA 382 (18 November 2013) (Emmett and Leeming JJA, Sackville AJA). In that case, a local council directed storm water onto the claimant developer’s land, causing it to flood. This was held to be a nuisance. However, the gravamen of the claimant’s case was that this flooding led to the establishment of a ‘Wallum froglet habitat’, which in turn led the Environment and Land Court to order the creation of a ‘Wallum froglet precinct’ and the construction of channels and culverts to ‘facilitate movement of Wallum froglets’ (at [215]–[219]). One effect of this order was to diminish the land value, but the NSWSCA held that the claim for this diminution in value failed because the creation of the frog habitat was not foreseeable (at [272]).

  107. See also Butler Market Gardens Pty Ltd v GG & PM Burrell Pty Ltd [2018] VSC 768; Riverman Orchards Pty Ltd v Hayden [2017] VSC 379.

  108. Hunt Leather (n 31).

  109. Southern Properties (n 68).

  110. The rule in Rylands v Fletcher [1868] UKHL 1, (1868) LR 3 HL 330 was absorbed by the law of negligence in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, and so this avenue was not open to the claimants.

  111. Marsh (n 42) [115] (McLure P); [314]–[325] (Pullin J).

  112. ibid [120]–[124]; cf [333] (Pullin J).

  113. Butler (n 107) [93]; Hunt Leather (n 31) [638]-[640] (Cavanagh J).

  114. Marsh (n 42) [118].

  115. ibid [120]. Pullin JA held that the statutory defence did not apply but offered no analysis of the nuisance claim as such (at [333]).

  116. ibid [115].

  117. Munro v Southern Dairies Ltd [1955] VLR 332, 337 (Sholl J). Lord Carnwath considers and rejects the idea that the public interest is a ‘factor in assessing reasonableness of user’ in Lawrence (n 35) [222].

  118. [1955] VLR 332. 337.

  119. In any event, Munro (n 117) is a VSC decision, and so not strictly binding on the WASCA.

  120. Balkin and Davies (n 5) 474; Carloyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (10th edn, Lawbook Co 2011), 504. See also Lawrence (n 35) (Carnwath LJ).

  121. Barker et al (n 83) 195, point to the ‘tenderness’ shown by some English judges to cricket clubs as evidence that public benefit has been taken into account in England.

  122. Sappideen and Vines (n 120) 504.

  123. ibid 505. See also Luntz et al (n 5) 890. Of course, in many disputes, and especially those between farmers, many defendants would be unable to pass on their costs to consumers because their financial positions are too precarious to survive litigation.

  124. Section 132 of Conservation and Land Management Act 1984 (WA) now relieves the State and its agents of civil liability for all acts done in good faith pursuant to the Act, and so it seems clear that the public is not expected to bear the costs of damage caused by prescribed burns provided the State or its agents act honestly.

  125. Trade and Investment Commission, ‘Agrifood Tech’ <https://www.globalaustralia.gov.au/industries/agrifood-tech> accessed 1 October 2024.

  126. Australian Government, Department of Agriculture, Fisheries and Forestry, ‘Snapshot of Australian Agriculture 2023’ <https://www.agriculture.gov.au> accessed 1 October 2024.

  127. And even when statutory authority is notionally conferred, a court might find that the defence of statutory authority does not apply because the wrong was not an ‘inevitable consequence of the authorised undertaking’, as did Pullin JA in Southern Properties (n 102) [333].

  128. Steel (n 71) 166–7; Lee (n 4).

  129. Marsh (n 42) [187].

  130. ibid [196].

  131. ibid [10].

  132. ibid [14].

  133. ibid [20].

  134. ibid [97], citing an Agricultural Department Factsheet entitled ‘Genetically Modified Crops and Farmer Liability’.

  135. ibid [140]. The losses were agreed at trial to amount to $85,000 (AUD).

  136. ibid [28]–[29].

  137. ibid [259].

  138. There were in fact two hypersensitivity arguments. The second was that the claimaint’s use of land exposed them ‘to the risk of the NCO misapplying, or unreasonably applying, the NASAA standard’. McLure P concluded that it was reasonably open to the NCO to decertify the land, ibid [199], [211], and so deemed this claim factually unsupported. Newnes and Murphy JJ did not consider it necessary to reach any firm conclusion on the matter because they found the claimant’s use of land to be sensitive in the first way contended for. ibid [785]–[786].

  139. ibid [248].

  140. ibid [272].

  141. ibid [293].

  142. ibid [291].

  143. ibid [778].

  144. ibid [779].

  145. ibid [779]–[782].­

  146. ibid [787].

  147. ibid [785]–[787].

  148. Steel (n 71) 163.

  149. Marsh (n 42) [288].

  150. Marsh v Baxter [2016] HCATrans 22 (12 February 2016).

  151. Marsh (n 42) [771].

  152. Hunt Leather (n 31). There appears to have been one appellate-level private nuisance claim in New Zealand since Fearn, but the case was distinguished on the facts. Young v Attorney-General [2023] NZSC 142 [93]–[94]. Fearn was discussed briefly in Smith v Fonterra Co-Operative Group Limited [2024] NZSC 5, a public nuisance case, but no position was taken as to whether ‘an unreasonableness requirement adds ballast’ to the enquiry in private nuisance or not. ibid [111]. There has also been one case in New Zealand in which the question of whether visual intrusion can amount to a nuisance has been raised. However, while an application for an interim injunction was approved in that case, it has not yet gone to trial: Simunac v Lu [2024] NZSC 5 [44].

  153. Hunt Leather (n 31) [84].

  154. ibid [90].

  155. ibid [648].

  156. [2023] UKSC 16.

  157. Hunt Leather (n 31) [646].

  158. ibid [647].

  159. Although he did so partly on the basis that Lord Sales’ judgment in Fearn was ‘more consistent with the law as it has developed in Australia’. ibid [651]. As I have said, I do not agree with that assessment, although I take Cavanagh’s endorsement of Lord Sales’ judgment to be based primarily on his preference for an assessment based on ‘reasonableness’, with which I do not necessarily disagree.

  160. ibid [656]–[657].

  161. ibid [917]–[923].