A Defence of the “Physicalist Heresy”: Or Why the Supreme Court of Canada Should Not Follow Fearn v Tate Gallery

I. Introduction

In Fearn v Board of Trustees of the Tate Gallery,^[1] the Supreme Court of the United Kingdom was tasked with deciding whether the defendant’s operation of a viewing platform could amount to a private nuisance. The defendant, the renowned modern art gallery, added an extension called the Blavantnik building with a platform that offered patrons the opportunity to enjoy 360-degree views of London. The positioning of the platform was such that those enjoying the vistas could overlook or peer into the plaintiffs’ residences (whose walls were constructed mainly of glass). Two questions had to be answered by the court. The first was whether there was any conceptual or a priori limit as to what could constitute a private nuisance, once the claimant had proven that they possessed the requisite legal interest in the land (namely a right to exclusive possession). The second was whether the overlooking or visual intrusion that actually took place was a substantial or wrongful interference with the plaintiff’s ordinary use and enjoyment of their land such that it amounted to a nuisance on the facts.

At trial,^[2] Mann J concluded that overlooking could, in theory, amount to an actionable private nuisance, answering the first question in the affirmative,^[3] but concluded that the second question must be answered in the negative.^[4] Conversely, the English Court of Appeal ruled unanimously,^[5] relying on Chandler v Thompson,^[6] Tapling v Jones,^[7] Turner v Spooner,^[8] and Victoria Park Racing and Recreation Grounds Co Ltd v Taylor^[9] that liability in private nuisance could never be established for mere overlooking.^[10] In case they were wrong on the first question, however, they expressed the view that if the threshold limit were dispensed with, then there clearly had been a substantial interference with use and enjoyment.^[11]

On further appeal, the UK Supreme Court unanimously answered the first question in the affirmative, finding that a private nuisance may be caused by ‘any means’.^[12] Lord Leggatt, with whom Lord Reed PSC and Lord Lloyd-Jones agreed, described the facts as ‘a straightforward case of nuisance,’^[13] and finding inspiration from Lord Macmillian in Donoghue v Stevenson,^[14] held that ‘the categories of nuisance are not closed’.^[15] Lord Leggatt contended that private nuisance does not require a physical emanation onto the plaintiff’s land, pointing to cases in which nuisances were found without such a physical invasion^[16] —thereby rejecting what has been called the ‘physicalist heresy’.^[17] Instead, as he stated: ‘Anything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land is capable of being a nuisance.’^[18] Lord Sales, agreeing on this point (and writing for himself and Lord Kitchen) said that ‘in my view, intense visual intrusion into someone’s domestic property is capable of amounting to a nuisance’^[19].

The second question, as to whether the facts at hand amounted to a substantial or wrongful interference with the plaintiff’s use and enjoyment of land, split the court. Lord Leggatt, for the majority, concluded that the near constant overlooking of the visitors into the plaintiff’s residents did amount to a substantial interference.^[20] He went on to state that ‘It is not difficult to imagine how oppressive living in such circumstances would feel for any ordinary person - much like being on display in a zoo’.^[21] His ruling was heavily influenced by the conclusion that the use of land by the Tate Gallery was not common or ordinary, but instead ‘exceptional’.^[22] Lord Sales, for the minority, disagreed and concluded that no tort had been committed given the glass-walled flats’ propensity to allow visual intrusion and the availability of mitigating procedures, such as drawing the blinds, to eliminate the intrusion.^[23]

We contend that the reasoning of the court in Fearn in relation to the first issue (or stage) of the private nuisance analysis is fundamentally flawed and should not be followed by the Supreme Court of Canada (or other Commonwealth ultimate appellate courts). In order to keep the argument focused (and to keep it to a reasonable length) we will not concern ourselves (except where necessary) with critiquing the majority’s analysis of the law relating to the second question, which itself seems far from ideal,^[24] nor with other second stage (or step) questions ‘such as whether in a particular case an interference that is capable of being a private nuisance does actually amount to a nuisance on the facts’ or ‘the question of what determines whether an interference capable of amounting to a nuisance is in fact one’.^[25] For the purpose of this article, we will assume that the test for wrongful interference at the second stage (ie the required intensity of the interference) is substantial interference with the use and enjoyment of land,^[26] while recognizing that courts have used many other linguistic formulations (such as ‘material’,^[27] ‘unreasonable’,^[28] ‘substantial and unreasonable’,^[29] ‘substantial and unlawful’,^[30] or ‘undue’^[31] ) to express the idea.

The heart of our argument to follow is that what has been characterized as the physicalist heresy is in fact legal orthodoxy provided that it is kept in mind that a physicalist understanding of the tort does not commit one to the view that the only thing that can constitute a private nuisance is some sort of physical invasion. Instead, what is required, given that a private nuisance is a ‘tort against land’, ^[32] is that there be a violation of a land specific right—a physical interference with the legal conception of land (which includes acquired rights and the natural rights that a person receives as an incident of the ownership or possession of the soil). Phrased differently, our orthodox view is an explanation of why physical invasions are nuisances, not the hypothesis that a nuisance is identical with the physical invasion, since it is clear, as we shall see, that physical interferences with one’s private right of access or with riparian rights (such as when there is a negative physical change to the water) are also classic and standard examples of private nuisances.^[33]

In order to make our case, the article is divided into six sections. In Section II, we present what we consider to be the best understanding of the tort of private nuisance (as it existed prior to the decision in Fearn), one that coherently explained why the courts sometimes did not impose liability despite the interference with use clearly being of the requisite intensity. In that section, we also examine and criticize the justification for these ‘no rights’ cases^[34]—a freedom to build—that was given by Lord Leggatt in Fearn. In Section III, we then examine the reasons offered by the UK Supreme Court for rejecting the ‘physicalist heresy’ and demonstrate that these reasons do not apply to a physicalist understanding centered upon the legal conception of land, ie, a conception that also encompasses natural and acquired rights. In that section, we also examine cases relating to watching and besetting and nuisance by affront, that are said to be inconsistent with our orthodox and physicalist understanding of the tort and reveal that they are not nearly as problematic as they first appear. After this ground clearing, in Section IV, we apply the orthodox understanding of private nuisance to the facts of Fearn and conclude (1) that the case was clearly wrongly decided, (2) that Lord Leggatt’s attempt to distinguish the leading cases relied upon by English Court of Appeal in relation to overlooking or visual intrusion is unconvincing, and (3) that it is implausible to argue that the result in Fearn might be justified by viewing it as creating a natural right not to be overlooked. In Section V, we examine whether the understanding of private nuisance that we have developed is unconvincing on the basis that it cannot account for the compelling or intuitive results of Canadian cases which have held that video surveillance that substantially interferes with the use and enjoyment of land can constitute an actionable nuisance. In response we argue that these cases reached the correct result, but are justified as breaches of rights to privacy (whether created by common law or statute) rather than as interference with rights to land. A short conclusion follows in Section VI.

II. The Best Understanding of Nuisance: A Physical Interference with the Legal Conception of Land

In this section we would like to examine what the best understanding of the tort of nuisance was prior to the decision of the UK Supreme Court in Fearn—the understanding which revealed ‘an intelligible order in the law, so far as such an order exists’.^[35] A key component of this understanding is that it would be able to coherently explain both why there could be a nuisance in situations where the plaintiff’s land was subjected to substantial interference from ‘noise, dirt, fumes, a noxious smell, vibration and suchlike’,^[36] and why it was said, in cases of highest authority, that (absent an acquired right) it could never be a nuisance to deprive a plaintiff’s land of sunlight,^[37] a flow of air,^[38] percolating water,^[39] or a splendid view,^[40] even when it could be said that that deprivation substantially interfered with the amenity value or abstract useability of the plaintiff’s land.^[41] As Lord Hoffmann said in Hunter v Canary Wharf: ‘That such has until now been the law of England seems to me indisputable.’^[42] In other words, is there a way to satisfactorily account for these ‘no rights’ cases, in light of the general principles of the law?^[43]

Given that it is now generally accepted that private nuisance is ‘a tort against land’^[44] or more accurately an interference with the plaintiff’s rights in relation to land,^[45] the starting point in constructing a coherent understanding of nuisance’s contours is to elucidate the rights that are included in this legal conception—what rights come from owning or having an exclusive right to possession of real property. The base entitlement, what we will call the ad coelum right, is that the owner or possessor of the surface is entitled to the exclusive possession of all the space above and below the surface (subject to some limitations).^[46] They are also presumed to own anything found in that column (that can be owned) and everything attached or affixed to the surface (such as houses, other structures, trees, crops, etc).^[47] Thus the ad coelum right has both a positive and negative aspect.^[48] The negative aspect is the right to exclude others from physically interfering with the subject matter of the right, for example, by damaging the land inside of the column or emanating something (or allowing something to encroach) into the column that is unwanted by the right holder.^[49] The positive aspect is that everything in the column, not owned by another, is prima facie available for the right-holder to use and enjoy and thereby subject to their purposes.^[50] It should be emphasized that the ad coelum right, like our right to bodily integrity, is exclusionary. These rights stop others from interfering with the subject matter of the right (our bodies and our land), but they do not compel others to provide us with things that would make these rights more useful or more enjoyable.^[51] Consequently, just as a person’s right to bodily integrity does not require anyone to rescue them or provide them with sustenance (hence there is no liability in the common law for failing to perform an easy rescue, even when failure to do so leads to death^[52]), a person’s ad coelum right does not compel others to allow things to reach the plaintiff’s land or require others to use their land in a way that pleases the plaintiff (provided that there is no physical interference).

In addition to the ad coelum right, the legal concept of land also includes natural rights (which for our purposes includes both rights arising ex jure naturae^[53] and rights otherwise ‘recognized by law’^[54]) that a person receives as an incident of the ownership or possession of their land. There are four such rights.

The first, and perhaps most famous, is ‘the inherent right’^[55] of a riparian owner to have a stream of water ‘come to him in its natural state, in flow, quantity and quality and to go from him without obstruction’.^[56] In cases of high authority it was established that this right was limited to visible streams and known subterranean channels,^[57] but did not apply to artificial watercourses^[58] or ‘water percolating through underground strata … which oozes through the soil in every direction.’^[59]

The second is the right to the lateral support of neighbouring land.^[60] As Lord Blackburn explained in Dalton v Angus, it is ‘not a right to have the adjoining soil remain in its natural state’ but rather ‘a right to have the benefit of support, which is infringed as soon as … damage is sustained in consequence of [its] withdrawal’.^[61] Moreover, the case law is clear that the natural right to lateral support does not extend to providing support to the additional weight of buildings on the land, which is a right that must be acquired by prescription or grant.^[62]

The third is the right to subjacent support enjoyed by the owner of the surface when property has been divided horizontally, as often occurs when mining or resource extraction is contemplated.^[63] The right to subjacent support imposes an obligation on the lower proprietor to leave sufficient support for the surface in its natural state and therefore does not extend to anything which burdens the land, like a building or railroad.^[64] As with the right of lateral support, burdened owners are permitted to use artificial support if minerals or soil from the land have been extracted.^[65]

The fourth and final natural right, is the right of access to and from private land when such lands adjoin a public highway (which includes both roads and navigable bodies of water^[66]). As explained by the Supreme Court of Canada in Toronto Transit Commission v Swansea (Village):

There is no difficulty upon the question of the right at common law of an owner of land adjoining a public highway. He is entitled to access to such highway at any point at which his land actually touches such highway for any kind of traffic which is necessary for the reasonable enjoyment of his premises … This is a right of property that was well settled at the common law. A private owner was always entitled to a full and uninterrupted access from his property that adjoined a public highway to that public highway … When he reaches the public highway and travels upon it, the private owner becomes then one of the public using the highway and subject to all the duties and obligations that rest upon the public generally, but it is his private right to be fully and freely permitted at all points of his private property to have freedom of access to the adjoining public highway.^[67]

As other cases make clear, an owner has no such right of access if their land does not abut the public highway—the right is lost ‘if a strip of land, however narrow, belonging to another … intervenes’.^[68]

In addition to the ad coelum right and the natural rights (relating to riparian water, support and access), the legal conception of land also includes acquired rights or interests in land, such as easements and profits, and therefore interferences with these incorporeal hereditaments are also actionable under the tort of nuisance.^[69]

When land is understood in this entirely orthodox way, and when nuisance is understood as a tort to land, it is clear why substantial interferences from ‘noise, dirt, fumes, a noxious smell, vibration and suchlike’^[70] are actionable since there has been an interference with the plaintiff’s right through the defendant causing “something” to cross the boundary into the plaintiff’s exclusive zone of control (in violation of the negative aspect of the ad coelum right). Similarly, it is also clear why there can be no liability in nuisance (in the absence of acquired rights^[71]) when the defendant deprives the plaintiff of sunlight, air flow, percolating water, or views since none of the plaintiff’s ad coelum, natural, or acquired rights have been physically interfered with and/or implicated. All that the defendant has done is to appropriate an amenity before it reached the plaintiff and could be used by them (often as an exercise of the positive aspect of their own ad coelum right).^[72] Thus these are merely examples of damnum absque injuria.^[73]

Phrased differently, when nuisance is understood as a tort to land, more is required than just an inquiry into the intensity of interference with the plaintiff’s abstract use or the useability of their property. Instead liability requires a two-step ordered sequence of questions: (1) has there been an interference with a right over land (ad coelum, natural, or acquired)?; and (2) has the use and enjoyment of that right been wrongfully or substantially interfered with? If the first question is answered negatively then there cannot be a nuisance, no matter how intense the interference with use and enjoyment. In the vast majority of cases, this two-step structure is hidden since the plaintiff’s claim is simply to exclude something (an emanation or encroachment) from entering their land (or to ask that damage to their land be undone) and the only entitlement needed to make this analysis work is the basic and exclusionary ad coelum right.^[74] In contrast, where the claim is that the nuisance is constituted by the defendant preventing something entering onto the plaintiff’s land (such as water, light or television signals) the mere existence of the plaintiff’s exclusionary ad coelum right (ie, to use whatever is in their column) is insufficient, they must additionally prove that their land included a right to receive that amenity either ex jure naturae or through an easement acquired by prescription or grant.^[75] As was explained by Lopes LJ in Chastey v Auckland:^[76]

[In this case] there is a want of ventilation and an absence of the means of carrying off bad smells on the plaintiffs’ premises … But nothing deleterious, nothing hurtful, nothing disagreeable, is brought on the plaintiffs’ premises by anything which the defendant has done. The bad smell and the stuffiness which interferes with their comfort arises on the plaintiffs’ premises. Unless the plaintiffs have against the defendant a right to get rid of this in the particular way which has been interfered with by the defendant, they cannot sue the defendant for a nuisance.

No appeal to policy or to any concept outside of the legal conception of land is necessary in order to reach these conclusions as to actionability and non-actionability and therefore, in the words of Donal Nolan, ‘understood in this way, [nuisance] is a thoroughly coherent cause of action’.^[77] Moreover, when our proposed view is taken, Hunter forms a consistent set with, and reinforces the results of, all the leading ‘no rights’ cases.^[78]

How does the court in Fearn explain these pockets of no liability? As McBride notes, Fearn without some additional limitation to its analysis, radically opens the door to liability in cases involving an obstruction of something going on to the claimant’s land, with the result that the use value of that land is diminished, when previously the claimant’s claim in nuisance would have been dismissed on the basis that the claimant had no right to receive the thing obstructed.^[79]

Rather than relying on an ordered sequence or threshold question, as the legal conception of land demands, the court instead posited that the common law recognises a “freedom to build” which trumps the substantial interference with the plaintiff’s abstract use (unless that use is protected by an acquired right). Lord Leggatt took inspiration from Hunter for this point. As he argued,

[In Hunter] the House of Lords reaffirmed the general rule at common law that anyone may build whatever they like on their land, unless this violates an agreement not to do so or an acquired right to light or to a flow of air through a defined aperture … It followed that interference with the use of the claimants’ land caused by the mere presence of a building on the defendant’s land could not give rise to a claim for private nuisance. The same principle explains why no claim lies for interference with a view or prospect.

The right to build (and demolish) structures is fundamental to the common and ordinary use of land, involving as it does the basic freedom to decide whether and how to occupy the space comprising the property. It follows that interference resulting from construction (or demolition) works will not be actionable provided it is, in Bramwell B’s phrase, ‘conveniently done’, that is to say, in so far as all reasonable and proper steps are taken to ensure that no undue inconvenience is caused to neighbours.^[80]

There are several problems with this understanding. The first is that, as others have noted, it has difficulty accounting for some of the leading cases. For example, it cannot explain the lack of liability in the landmark case of Bradford v Pickles (which unfortunately went unmentioned in Fearn) since in that case the interference was caused by something other than a building (ie the defendant sinking wells and dewatering his land).^[81] Is Bradford v Pickles wrongly decided? If not, will the courts have to conjure up a freedom to dig or freedom to drain in subsequent decisions? Similarly, as others have noted, it has difficulty accounting for the results in Greenwood or any other case where a building concentrates and deflects a problem onto a neighbor’s land.^[82] Are these reflection/deflection cases to be explained on the basis of the ‘conveniently done’ principle or as ‘extreme cases’ where the freedom to build runs out?^[83]

Second, it suggests that if the interference with light, air or view was caused by something other than a building, such as by the planting of a tree or a hedge that a different result should follow. Yet there is little indication that there were different rules for plants or other fixtures in any of the leading cases. As Bramwell LJ put it in Bryant v LeFever:^[84]

A hedge, a wall, a fruit-tree, would each affect the land next to which it was planted or built. They would keep off some light, some air, some heat, some rain, when coming from one direction, and prevent the escape of air, of heat, of wind, of rain, when coming from the other. But nobody could doubt that in such case no action would lie … Of course, the same reasoning applies to the putting of timber on the top of a house, which, if not a common, is a perfectly lawful act, and it would be absurd to suppose that the defendants could lawfully put another storey to their house with the consequences to the plaintiff of which he complains, but cannot put an equal height of timber.

Similarly, Lord Leggatt’s analysis suggests that if the building is not ‘conveniently done’ then the interference with light, air or view should still be actionable, yet as Donal Nolan notes, ‘it had hitherto been thought that the English “no rights” cases had no such limitation, so that, for example, the construction of a fence solely to block a neighbour’s view was not a nuisance’.^[85] Rather than being focused on a liberty or freedom to build, the classic cases were clear that in ‘the absence of an easement, there is no right to light’^[86] and if you have no right to the amenity then the way in which the deprivation occurs (through ordinary use or extraordinary use) is irrelevant.

Third, the freedom to build interpretation makes it difficult to understand what conceptual work the finding of an easement is doing in a private nuisance analysis. If my right to use and enjoy my land includes a general entitlement to receive light, air, water and views, why would I need an easement to receive such things? Similarly, if I already have an entitlement to receive such things across the whole of my property, why would the easement that is created be read back to only include those things that flow through defined apertures? This seemingly creates an incoherence between the law of property and the law of nuisance,^[87] especially in relation to the reception of amenities which the law states can never amount to an easement even through long enjoyment (such as views,^[88] and percolating water^[89]). As the court stated in in Musumeci v. Leonardo: ‘So use your own as not to injure another’s property is, indeed, a sound and salutary principle for the promotion of justice, but it may not and should not be applied so as gratuitously to confer upon an adjacent property owner incorporeal rights incidental to his ownership of land which the law does not sanction.’^[90] Additionally, if easements are protected by private nuisance and the tort includes in it a freedom to build, then why does that not trump the easement?^[91] Why is the freedom to build not absolute?^[92] As presented in Fearn,^[93] it is as if there was a tort of private nuisance on one side, and a law of easements on the other,^[94] that are somehow only tangentially, marginally, or historically related rather than being, as they have generally been recognized, part of a coherent and unified understanding of the legal conception of land.

Read charitably, perhaps the court has in mind something like the following analysis. Your right to your land includes a right to its useability. Wrongfully depriving someone of an amenity (such as light, air, water, etc) that could affect that usability is therefore a (prima facie) nuisance. If the deprivation is caused by the defendant’s building this is not a nuisance because the usability of land includes an entitlement to build for the defendant as well. This general entitlement to build, however, might be regulated by an easement, which must (according to the rules related to their acquisition) only minimally interfere with the right to build.^[95] This concern is cashed out in a limitation that the easement only protects amenities received through defined apertures. In that way, and through a combination of steps, your general right to receive light, air, water and views, etc, is partially reinstated by the easement such that you can now be legally secure in their enjoyment through defined apertures. With the greatest of respect, this system of broad entitlements, trumps to those entitlements, and counter-trumps to the trump seems to be a rather convoluted way to only partially explain the results of the leading cases. Recall the simplicity of the argument presented above, one which completely and coherently accounts for the leading ‘no rights’ cases: the legal conception of land is exclusionary and protects you only from interferences with things that are already in your column unless your land also includes a legal right to receive the amenity as a natural or acquired right.

III. The Case Against the Physicalist Understanding

Given the relative simplicity and undoubted coherence of the physicalist and exclusionary theory presented above, why did the court in Fearn not accept it? There seem to be two explanations. The first, and the more subtle, was that the court fell victim to ‘a common fault of experts on rights’ in confusing limitations on enforceability with the normative foundations of the right itself (or with confusing consequences with justifications).^[96] In this case, the common fault manifested itself in a flattening out of an ordered conceptual sequence of two steps (rights to land and their wrongful interference) into a single step (wrongful interference) which then required the court to engage in a complicated process of balancing in order to recreate the results that had been obtained by earlier courts applying the ordered sequence.^[97] That this might be so is evidenced by the Lord Leggatt’s discussion of Hunter v Canary Wharf immediately prior to his discussion of the freedom to build. As he explained:

A second issue raised on that appeal was whether interference with television reception is capable of giving rise to a claim for nuisance. The House of Lords did not give an absolute answer to that question. The Law Lords did not exclude the possibility that the ability to watch television might be regarded as so important a part of the ordinary enjoyment of property that interference with it could amount to an actionable nuisance.^[98]

The difficulty here is that Lord Leggatt assumes that the only limitation on whether interference with television reception might be actionable was the ordinariness of using land to watch television and the substantialness or intensity of that interference (the second stage).^[99] It did not seemingly occur to him that the reason judges might have caveated their answer was that there could be ways in which interferences with amenities such as TV reception might implicate one’s rights to land (the first stage). When one focuses on the first stage, the answer to the question of whether the interference with an amenity such as a water, sunlight, TV reception, etc. could amount to a nuisance depends on the particular right to land that is enjoyed by the plaintiff and the mechanism of the interference with that right. So sometimes depriving a plaintiff of water can ground a claim in nuisance (such as when its obstruction violates the natural riparian right^[100]) and other times it will not (such as when the water is merely abstracted while percolating before it reaches the plaintiff’s land^[101]) even when the substantialness or intensity of the interference with the plaintiff’s abstract use of their land in each case would be more or less identical. Similarly, sometimes interferences with light can ground a claim in nuisance (such as when it is obstructed in violation of an acquired right to ancient lights,^[102] or when it is concentrated, intensified and reflected into the plaintiff’s column^[103]) and other times it will not (such as when it is blocked in situations where there is no acquired right^[104]). The same might be said of television reception which should be unactionable if the lack of reception was caused by the signal being blocked or prevented from reaching the plaintiff’s land,^[105] but potentially actionable if the lack of reception was caused by the defendant’s electromagnetic interference intruding onto the plaintiff’s land and interfering with the plaintiff’s receiving equipment.^[106] Thus, when examining the cases, one should be careful not to automatically read judicial statements that an interference with something may or may not be amount to a nuisance as indicating that the only relevant inquiry is into the wrongfulness, substantialness or intensity of the interference rather than also including an examination of the land rights of the particular plaintiff (ie, the threshold question).

The second, and more obvious, reason is that the court was presented with what appeared to be devasting critiques (by Nolan^[107] and Essert^[108]) of a prominent physicalist theory of nuisance (offered by Douglas and McFarlane^[109])—namely that all nuisances were best understood as physical boundary crossings or emanations into the claimant’s land—which made any physicalist understanding of this area of law suspect.^[110] As Lord Leggatt explained:^[111]

A second fundamental point, directly relevant in this case, is that there is no conceptual or a priori limit to what can constitute a nuisance. … Anything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land is capable of being a nuisance.

Frequently, such interference is caused by something emanating from land occupied by or under the control of the defendant which physically invades the claimant’s land. This may be something tangible, as where—to take a recent example—an incursion of Japanese knotweed from neighbouring land gave rise to a claim: see Williams v Network Rail. Or it may be something intangible, such as fumes, noise, vibration or an unpleasant smell. In all such cases, however, the basis of the claim is not the physical invasion itself but the resulting interference with the utility or amenity value of the claimant’s land. Moreover, there is no requirement that the interference must be caused by a physical invasion and, as commentators have pointed out, there are many cases which do not fit this model … So, for example, a nuisance may be caused by obstructing access to land (e g Guppys (Bridport) Ltd v Brookling (1983) 14 HLR 1); by a withdrawal of support for the claimant’s land (e g Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] QB 836); by obstruction of an acquired right to light (e g Jolly v Kine [1907] AC 1) or to a flow of air (e g Bass v Gregory (1890) 25 QBD 481) through a defined aperture; or by preventing connection to a public sewer (Barratt Homes Ltd v Dŵr Cymru Cyfyngedig (No 2) [2013] 1 WLR 3486).

In light of the orthodox understanding of private nuisance provided above, the list of non-emanation nuisances provided by the court is for the most part easily accounted for when one remembers that the legal conception of land, which the tort of nuisance is said to protect, also includes natural and acquired rights. So, for example, obstructing access to land can be a private nuisance since it is a violation of the private law right to move on and off your property where it abuts a public highway.^[112] Similarly, the withdrawal of support can be a private nuisance since it is in violation of the right which arises ex jure naturae from the ownership or possession of the surface.^[113] Conversely, the single step analysis offered by the court in Fearn would seemingly be unable to explain why courts of the highest authority have concluded that it can never be a private nuisance to remove lateral support to the buildings on the claimant’s land absent the acquisition of an easement. As Lord Penzance said in Dalton v Angus: ‘it is the law, I believe I may say without question, that at any time within twenty years after the house is built the owner of the adjacent soil may with perfect legality dig that soil away, and allow his neighbour’s house, if supported by it, to fall in ruins to the ground’.^[114] Likewise, obstructions of acquired rights to light and air, as in Jolly v Kine and Bass v Gregory, can be nuisances since these are easements and the legal conception of land, as we have seen, includes and protects acquired rights.^[115] The fact that these seemed difficult or a challenge to a physicalist understanding of nuisance based around the legal conception of land in no doubt stems from the fact that the concept of natural rights has not often figured prominently (or at least as prominently as the discussion of acquired rights) in the leading modern nuisance decisions or discussions of the doctrine.^[116]

The inclusion of nuisance in the form of ‘preventing connection to a public sewer’ in Lord Leggatt’s list seems a tad strange given that the court in Barratt Homes actually found that no nuisance had been committed because the claimant could not prove that it had a private law right to connect to the sewer system located off of its land that sounded in the breach of statutory duty tort, in negligence or in the tort of nuisance. As Lloyd Jones LJ said: ‘If failure to perform a statutory duty does not give rise to a private right to sue for damages for breach it is difficult to see how it can provide the essential basis for a cause of action for damages in nuisance.’^[117] Barratt was no doubt included by Lord Leggatt, since in dicta, members of the panel opined that nuisance does not invariably involve an emanation,^[118] and that, but for what Lloyd Jones LJ termed the ‘policy of the statute’, the court might have entertained a private nuisance claim.^[119] In any event, Barratt Homes need not detain us further since the result is perfectly consistent with the legal conception of land understanding of private nuisance presented above: there was no emanation into the column of the plaintiff (nor property damage therein) and no interference with any natural right or acquired right (such as right to emit sewage onto the land of the defendant^[120]). Thus, it was elementary that there could be no nuisance regardless of how substantial or intense the interference was since the first stage of the ordered sequence was not engaged. As Cotton LJ explained in Bryant v LeFever:^[121]

Every man, however, has a natural right to enjoy the air pure and free from any noxious smells or vapours, and any one who sends on to his neighbour’s land that which makes the air there impure, is guilty of a nuisance. … Ordinarily this is so, but the defendants have done so, not by sending on to the plaintiff’s property any smoke or noxious vapour, but by interrupting the egress of smoke from the plaintiff’s house in a way to which, as against the defendants, the plaintiff has no legal right. … It is as if a man tried to get rid of liquid filth arising on his own land by a drain into his neighbour’s land. Until a right had been acquired by user, the neighbour might stop the drain without incurring liability by so doing. No doubt great inconvenience would be caused to the owner of the property on which the liquid filth arises. But the act of his neighbour would be a lawful act, and he would not be liable for the consequences attributable to the fact that the man had accumulated filth without providing any effectual means of getting rid of it.

Beyond the cases mentioned in Lord Leggatt’s statement of principle (quoted above), Lords Leggatt and Sales (who as we have seen also thought that there was no conceptual reason why overlooking could not constitute a nuisance^[122]) also relied upon Bank of New Zealand v Greenwood,^[123] cases relating to watching and besetting such as J Lyons & Sons v Wilkins,^[124] and nuisance by affront cases such as Thompson-Schwab v Costaki,^[125] and Laws v Florinplace Ltd^[126] to make their case against a physicalist understanding of the tort of nuisance.

As mentioned above, Bank of New Zealand v Greenwood provides no difficulty for a physicalist understanding (anchored in the legal conception of land) since it was clear that the sunlight at issue was being reflected and intensified by the defendant’s building into the plaintiff’s land, a clear interference with the plaintiff’s ad coleum right.^[127]

At first blush, watching and besetting cases, such as J Lyons & Sons v Wilkins, appear impossible to accommodate under the physicalist understanding of nuisance. In Lyons, the defendants (who were the Executive Committee of the Amalgamated Trade Society of Fancy Leather Works) organized picketing outside of the plaintiff’s place of business during a strike. The defendants hoped to dissuade non-union workers from going into the plaintiff’s business and thereby to get the plaintiff to accede to the union’s demands that the plaintiff change its business operations. No threats, intimidation or violence were used, but the picketing extended over some months and covered all the working hours of the day.^[128] The legal issue for the court was whether the picketing might be enjoined as being contrary to a statutory provision which made it an offence to watch or beset the home or workplace of another with the intention of compelling them, ‘wrongfully and without legal authority’, to do or abstain from doing anything they had a legal right to do.^[129] According to the court, one of the ways that this provision could be violated was if the actions of the defendants were otherwise independently unlawful under the common law (with the later case of Ward, Lock and Co Ltd v Operative Printers’ Assistants’ Society making it clear that this was in fact the only way that the relevant section could be violated).^[130] The majority of court concluded that the actions of the defendants in organizing the pickets could be enjoined since, in the words of Lindley MR,^[131]

The truth is that to watch or beset a man’s house with a view to compel him to do or not to do what is lawful for him not to do or to do is wrongful and without lawful authority unless some reasonable justification for it is consistent with the evidence. Such conduct seriously interferes with the ordinary comfort of human existence and ordinary enjoyment of the house beset, and such conduct would support an action on the case for a nuisance at common law.^[132]

That this statement of principle might be too broad is clear from the fact that, if taken at face value, it could not explain the lack of liability in the leading prevention or no rights cases mentioned above (especially the classic case of Bradford v Pickles). This error was in no doubt facilitated by the fact that the cases that Lindley MR cited in support of his proposition, namely, Bamford v Turnley,^[133] Walter v Selfe,^[134] Crump v Lambert,^[135] and Broder v Saillard,^[136] all involved situations where something (smoke, smells, damp and/or noise) invaded or emanated into the column of the plaintiff and therefore did not require any explicit cognizance of the first step of the nuisance analysis.^[137]

This error, however, did not go unnoticed by later generations of judges. For example, in his 1975 decision in Hubbard v Pitt, Lord Denning MR argued that Lindley MR’s statement had ‘not stood the test of time’ since something more than the bare fact of ‘watching and besetting’ would be required for the picketing to be a nuisance at common law.^[138] In Lord Denning’s view, there would need to be an obstruction or molestation of those seeking to enter the plaintiff’s property or the creation of noise and/or smells that disturbed the land’s amenity value in order to ground actionability.^[139] In other words, that when properly understood, liability for watching and besetting required more than just an intense or substantial interference with the abstract use of the plaintiff’s land. Additionally, it required that this interference flows from a violation of (1) the plaintiff’s ad coelum right (through an emanation of noise or smells) or (2) the natural right of the owner (and their agents or invitees) to access the plaintiff’s property where it abuts a public highway (through obstruction or molestation). Thus, as Penner notes, the ‘problem with besetting was that picketers were intentionally, and effectively, denying the plaintiff the right to invite others … onto their premises’.^[140] When thought of in this way, liability for watching and besetting is quite consistent with the physicalist understanding of the tort of nuisance centered on the legal conception of land.

But what if the obstruction and picketing is not contiguous to the plaintiff’s land and occurs, for example, at the end of the plaintiff’s street rather than where the plaintiff’s property meets the highway? Can a physicalist understanding explain liability in these situations? The answer is that there is clearly liability but that the reason for the liability (as outlined in Toronto Transit Commission v Swansea (Village) above) has nothing to do with the legal concept of land. Instead, liability is premised on the violation of the public right that we all enjoy to pass and repass on public highways (roads and navigable waters),^[141] ie, liability is grounded in the tort of public nuisance rather than in private nuisance.^[142] Phrased differently, an obstruction (provided it is intense or substantial enough) targeted at the plaintiff is a legal wrong but the type of legal wrong that it is depends on where it occurs. If it is contiguous to the plaintiff’s property it is a private nuisance since it is the violation of the natural right of access (and the legal concept of land). Conversely, if it is farther afield, then it is a public nuisance (and will be actionable by the plaintiff so long as they can prove that they suffered particular or special damage) since it involves an interference with the public right to pass and repass on the public highway that specially affects them.

When this distinction between private and public right is kept in mind, the notoriously ‘tricky’^[143] and controversial^[144] cases of ‘nuisance by affront’, which according to Lord Goff in Hunter ‘must be relatively rare’,^[145] can now be addressed. Take for example the textbook case of Laws v Florinplace Ltd,^[146] which was relied upon in Fearn. In Laws, ten inhabitants of a ‘residential enclave’ near London’s Victoria Station sought an interlocutory injunction against the defendants, a hardcore pornography shop operator and his corporate vehicle, to cease operations and remove all forms of signage from the premises that advertised its business as a ‘Sex and Video Centre’.^[147] Counsel for the plaintiff made two broad arguments in favour of the injunction. First, that the existence of the business selling hardcore pornography and

selling it in such a way that the nature of the business would be apparent to those living in or visiting the area, is itself a nuisance, because the instinctive repugnance that would be felt by ordinary decent men and women, and the embarrassment that would be felt by visitors, would in itself constitute a material and unreasonable interference with the comfort and enjoyment of their property.^[148]

Second, that the nature of the business was such that it would attract undesirable customers, prostitutes trading on those customers, and criminals exploiting the prostitutes that would make it unsafe for the residents of the neighbourhood, especially for girls and women, who might be accosted or molested while walking about.^[149]

The court granted the interlocutory injunction accepting that the arguments expressed by counsel for the plaintiff raised triable issues since: (1) in the similar prostitution case of Thompson-Schwab v Costaki,^[150] the Court of Appeal had accepted that a physical emanation was not necessary to ground an action in private nuisance if the affronting activity otherwise substantially interfered with the plaintiff’s use and enjoyment of the land;^[151] and (2) that even if 80% of the clients of the business were ‘respectable normal individuals’^[152] (as had been claimed by the defendant) that meant that there remained a substantial number who might be or were a danger to the residents and visitors of the neighbourhood.^[153] Additionally, the court buttressed its conclusion by noting that the defendant’s business was ‘one which operates at least near the boundary of the criminal law’ and that the material contained in the shop was ‘patently capable of corrupting and depraving any ordinary member of the public into whose hands it might come’.^[154]

While it is true that the physicalist understanding of nuisance herein presented would say that Laws (and by extension Thompson-Schwab) was wrongly decided as a private nuisance case—since there was no physical change to the column of the plaintiff, nor were any of the plaintiff’s natural or acquired rights being physically interfered with—the result was correct since there was a serious issue to be tried as to whether the defendant’s shop was a public nuisance.^[155] As a reminder, the traditional definition of a public nuisance at a common law is as follows:^[156]

A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.

In light of this definition, the shop might have been a public nuisance in one of two ways. First, the shop could be seen to be a common nuisance on the basis that it interfered with the public’s right to safely pass and repass on the neighbourhood highways (which is a right common to all Her Majesty’s subjects) by making the streets dangerous for the residents to move about on.^[157] Second, and more controversially given more recent legal developments,^[158] the shop might have been a public nuisance (at least in 1981 England) on the basis that it interfered with public morals (which as we have seen was suggested by Vinelott J at the close of his judgment in Laws).^[159]

Understanding the nuisance by affront cases in this way also explains why judges and litigants have repeatedly latched on to and emphasized the fact that the activities in question have caused or were threatening to cause a serious diminution in property value in justifying the need for an injunction. For example, as Nolan notes,^[160] Vinelott J quoted the evidence of one homeowner ‘that the continuance of the defendants’ business would severely injure the value of his property’^[161] and discussed the evidence of two estate agents who expressed divergent views as to the effect of the sex shop on local property values.^[162] Similarly, concerns that the activities of prostitutes would seriously lower the plaintiff’s property value was also given as a justification for the interim injunction granted in Thompson-Schwab v Costaki.^[163] As a result, Nolan argues that nuisance by affront cases have ‘certainly come close to countenancing liability for diminution in value per se’^[164] or ‘sailed rather close to the wind in this respect’^[165]. From the perspective of private nuisance, this is strange since it is trite law that a mere diminution in property value is not actionable unless that diminution is consequential on a wrongful interference with the plaintiff’s land.^[166] In other words lowering the value of property is not a nuisance in and of itself, instead (as was stated in the classic case of Shuttleworth v Vancouver General Hospital) in order to succeed in private nuisance ‘the act complained of must be both tortious and hurtful’.^[167] Thus, as Penner argues, in respect of private nuisance ‘there can be no justification of these decisions on the basis that the residents merely objected to these activities because they might give rise to a decline in their property values’.^[168] From the perspective of the tort of public nuisance, however, such a focus makes eminent sense since it has long been accepted that a serious and localized diminution in property value, which sets the plaintiff apart from the rest of the general public, is one of the ways in which a plaintiff could prove that they suffered or would suffer ‘special damage’ and therefore had the requisite standing to request an injunction (or other remedy) from the court in relation to the state of affairs which constituted the public nuisance.^[169] Thus given that the result in Laws (and similar cases) is better and more coherently understood as being animated by the rules related to public nuisance, it is suggested that the nuisance by affront cases do not pose any real challenge to our physicalist understanding of private nuisance, and certainly could not by themselves be the basis to ignore the multitude of cases of highest authority suggesting private nuisance involves more than merely a substantial interference with abstract usability.

IV. Applying the Legal Conception of Land Approach to Fearn

With that ground clearing done, we can now examine the facts of Fearn itself. While we agree with Lord Leggatt that the facts presented ‘a straightforward case of nuisance,’^[170] in our view, when nuisance is properly conceived as an interference with rights associated with land, it was straightforwardly a case of no liability that did not require any analysis of the intensity or substantialness of the interference.^[171] To see why, recall the three aspects of the legal conception of land protected by the tort: (1) the ad coelum right; (2) the four additional natural rights and (3) any associated acquired rights. In Fearn, there was no interference with the plaintiffs’ ad coelum right since there was no physical change brought about to the plaintiff’s land by the actions of the defendant. There was no emanation or encroachment of anything into the plaintiffs’ zone of control, nor was there any damage done to anything in the plaintiffs’ column. Similarly, none of the traditional natural rights (to water flowing a defined channel, to lateral and/or subjacent support, or to highway access) were implicated by the defendant’s actions; nor were any acquired rights (such as to light or to the flow of air) at issue. Thus, according to the best and orthodox understanding of the leading cases as they existed prior to Fearn, the plaintiff’s case should have failed at the first, threshold step. This should have pertained no matter how substantially the visual intrusion or overlooking interfered with the use and enjoyment of the plaintiffs’ land, just as the intensity of the interference was irrelevant in the leading cases where percolating water, light or air was prevented from reaching their respective plaintiffs. In the traditional language of the law, the facts of Fearn were just another example of damnum absque injuria.

As the eminent jurist Dixon J (as he then was) explained in the leading case of Victoria Park Racing, in a passage channeling the legal conception of land theory herein presented:^[172]

It may be conceded that interferences of a physical nature, as by fumes, smell and noise, are not the only means of committing a private nuisance. But the essence of the wrong is the detraction from the occupier’s enjoyment of the natural rights belonging to, or in the case of easements, of the acquired rights annexed to, the occupation of land. The law fixes those rights. … But English law is, rightly or wrongly, clear that the natural rights of an occupier do not include freedom from the view and inspection of neighbouring occupiers or of other persons who enable themselves to overlook the premises. An occupier of land is at liberty to exclude his neighbour’s view by any physical means he can adopt. But while it is no wrongful act on his part to block the prospect from adjacent land, it is no wrongful act on the part of any person on such land to avail himself of what prospect exists or can be obtained.

And to similar effect, in Tapling v Jones, Lord Chelmsford said:^[173]

the owner of a house has a right at all times … to open as many windows in his own house as he pleases. By the exercise of the right he may materially interfere with the comfort and enjoyment of his neighbour; but of this species of injury the law takes no cognizance. It leaves everyone to his self-defence against an annoyance of this description; and the only remedy in the power of the adjoining owner is to build on his own ground, and so to shut out the offensive windows.

In Fearn, Lord Leggatt attempted to distinguish Victoria Park Racing and Tapling by arguing that neither case was dealing with situations of being ‘constantly watched’^[174] and that therefore they ‘provide no support at all for the proposition that watching from a neighbouring property, however persistent and intrusive, can never amount to a nuisance’.^[175] With the greatest of respect, we contend that this attempt at distinguishing the cases is unpersuasive for two reasons.

First, it is not plausible to argue that the justices in Victoria Park Racing and Tapling did not have in mind situations of very intrusive overlooking or gross invasions of privacy in their statements of private nuisance principles. For example, in Victoria Park Racing the dissenters (Rich J^[176] and Evatt J^[177]) both referred to an unreported case, referenced by Winfield,^[178] involving a dentist whose study and operating room was constantly spied upon by family through an arrangement of large mirrors that allowed them to observe everything that occurred therein; and both argued that such an activity was definitely a private nuisance since, in the words of Evatt J, ‘no normally sensitive human being could have pursued his profession or business under so intolerable an espionage, and the result would have been to render the business premises practically uninhabitable’.^[179] Moreover, both then used their analysis of that case to buttress their claims that a nuisance had been committed on the facts of Victoria Park Racing. We have already seen Dixon J’s response. In a similar view, Latham CJ stated:^[180]

I am unable to see that any right of the plaintiff has been violated or any wrong done to him. Any person is entitled to look over the plaintiff’s fences and to see what goes on in the plaintiff’s land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence. … In my opinion, the law cannot by an injunction in effect erect fences which the plaintiff is not prepared to provide. The defendant does no wrong to the plaintiff by looking at what takes place on the plaintiff’s land.

Thus, given the nature of the dissents offered by Rich and Evatt JJ it seems implausible to read these statements of principal by the majority in Victoria Park Racing as being limited only to non-persistent or non-intrusive overlooking.

A similar argument is evident when one examines the House of Lords decision in Tapling. As we have seen, Lord Chelmsford referred to ‘as many windows … as he pleases’.^[181] More concretely, Lord Westbury LC stated that ‘invasion of privacy’ is ‘not treated by the law [of nuisance] as a wrong for which any remedy is given’.^[182] He continued: ‘If A. is the owner of beautiful gardens and pleasure-grounds, and B. is the owner of an adjoining piece of land, B. may build on it a manufactory with a hundred windows overlooking the pleasure-grounds, and A. has neither more nor less than the right which he previously had’.^[183] We think it hard to argue that a situation of potentially hundreds of employees looking out hundreds of windows does not at least pose a risk of persistent and intrusive visual intrusion.

Second, it is arguably part of the ratio of Tapling (or at the least a very important part of the reasoning contained therein) that visual intrusion of any seriousness could never create a state of affairs which could amount to a legal wrong since if it could then there was scope for arguing that the plaintiff would be entitled to protect itself by building a wall or visual barrier that also had the effect of interfering with the plaintiff’s rights to its ancient lights. Lord Westbury LC explained the defendant’s theory of the case thusly:^[184]

If the owner of a dwellinghouse with antient lights open new windows in such a position as that the new windows cannot be conveniently obstructed by an adjoining proprietor without obstructing the old, he (the adjoining proprietor) is entitled so to do, at all events so long as the new windows remain. Upon examining the judgments, it will be seen that the opening of the new windows is treated as a wrongful act by the owner of the antient lights, which occasions the loss of the old right he possessed: and the court asks whether he can complain of the natural consequence of his own act.

His Lordship responded:^[185]

I think two erroneous assumptions are involved in or underlie this reasoning,—first, that the act of opening the new windows was a wrongful one,—and, secondly, that such wrongful act is sufficient in law to deprive the party of his right under the statute. But, as I have already observed, the opening of the new windows is in law an innocent act; and no innocent act can destroy the existing right of the one party, or give any enlarged right to the other, viz. the adjoining proprietor.

Similarly, Lord Cranworth stated:^[186]

I am unable to comprehend the principle on which such a claim [by the defendant to a justification] can rest. Where a person has wrongfully obstructed another in the enjoyment of an easement, as, for instance, by building a wall across a path over which there is a right of way, public or private, any person so unlawfully obstructed may remove the obstruction; and, if any damage thereby arises to him who wrongfully set it up, he has no right to complain. His own wrongful act justified what would otherwise have been a trespass. But this depends entirely on the circumstance that the act of erecting the wall was a wrongful act, whereas the opening of a window is not an unlawful act.

Therefore, for these reasons, we argue that Lord Leggatt’s marginalization of the physicalist understanding presented by the judges in Victoria Park Racing and Tapling is not nearly as persuasive as might first appear. Once again, it demonstrates Lord Leggatt succumbing to a ‘common fault of experts on rights’ in confusing (or perhaps combining) the first step of the nuisance inquiry (has a right related to land been interfered with) with the second question of whether the interference with that right caused a substantial interference with the useability of the plaintiff’s land. As one commentator pithily noted, Lord Leggatt merely paid ‘“lip-service” to the ideas that the action was a “tort against land”’ rather than taking it seriously.^[187]

But perhaps the result in Fearn might be justified, even applying the traditional understanding of nuisance outlined above, on the basis that the UK Supreme Court merely recognized a new natural right, a right not to be overlooked, that arises from the ownership or possession of a portion of the earth’s surface. For example, Victoria Ball, while not being in support of the outcome, nevertheless has argued that this might be the best way to understand the decision.^[188] Provided one does not take the view that the existing natural rights are a mere accident or product of the positive law from which analogy is hopeless,^[189] we agree that it should be possible for the courts to create new natural rights (provided that they could form a consistent set with those currently recognized).^[190] However, this would in our view require the court to present a conception or theory of the natural rights—ie what justifies the ones we currently recognize and the ones we have so far denied that status—and to make an argument as to how this new natural right of freedom from overlooking or visual intrusion coheres with the best understanding of the current law. It is patently obvious that this is not what the UK Supreme Court actually did in Fearn, since their Lordships did not think there was any threshold question to be asked, but if they did so think, could such an argument have been successful?

Our contention is that it could not. Given the constraints of space (and the lack of scholarship or judicial decisions interrogating the conceptual underpinnings of this area of law^[191]), we cannot give a comprehensive theory of ‘natural rights’ here. However, we think that a tentative but reasonable understanding of this area (that tends to show the difficulties a court would face) is as follows. First, the rights that are traditionally said to exist ex jure naturae (ie, to support and riparian rights) seem to be justified on the basis that they are protecting each owner from physical damage that would otherwise occur inside their column from the natural connection with adjacent or nearby properties (ie they are indirectly protecting the ad coelum right).^[192] For example, if I could dig my property down and cause yours to collapse, you could do the same to me and our ad coelum rights would be rendered nugatory as the subject matter of the right could be entirely destroyed (since land cannot ‘stand by its own coherence alone’).^[193] In relation to riparian rights, if I could pour filth into the river running through my land, that would be a means by which I could cause that filth to emanate onto your land and physically change its composition. But if you could block the flow of a shared river in response, then that would be a way in which you would cause flooding and property damage inside my column. Creating a system of ‘mutual rights and liabilities between all the riparian proprietors’,^[194] one that (1) alleviates both of these problems simultaneously and (2) reciprocally protects the ad coelum right, seems like a reasonable and rational response. Moreover, the focus on the innate connection between the properties explains why the courts have not expanded the rights of support to things (like buildings or railways) not naturally found on the land,^[195] and have not applied the concept of riparian rights to artificial channels of water,^[196] since in both cases the interdependence becomes a function of the choices of the parties rather than being something thrust upon them by the natural state of the land.^[197]

In contrast to the rights that arise ex jure naturae, the right of access is a function of the common law deciding (through its resolution of disputes) whether an entitlement to some particular attribute of a shared resource (such as a river or road) belongs to the plaintiff qua one of His Majesty’s subjects or qua an owner of adjacent land and then systematizing those rights so that they could (theoretically) be enjoyed without conflict.^[198] For example, in William Lyon v The Wardens of the Fishmongers Company and the Conservators of the River Thames,^[199] the House of Lords had to decide whether a license, granted by the relevant statutory body, allowed a neighbouring owner to build an embankment across the river Thames. The proposed embankment would have totally cut off the plaintiff’s access to the river on the western edge of its property, while leaving the plaintiff full access to the river across its southern facing frontage. It was clear that the relevant legislation gave the statutory body authority to license interferences with the public right of navigation on the river but that it did not give the statutory body the authority to license inferences with private rights. This then squarely raised the issue of whether, when accessing the river from their property, the plaintiff was exercising a private law right accessory to their land or was merely exercising their public right to pass and repass on the river. While acknowledging that the case raised difficult issues, their Lordships unanimously decided that private rights were implicated and that as a result the plaintiff was entitled to an injunction to stop the works proposed by defendant. As Lord Cairns LC reasoned, the extant authorities were more consistent with the right to access being classified as a private right,^[200] and moreover,

[i]ndependently of the authorities, it appears to me quite clear, that the right of a man to step from his own land on to a highway is something quite different from the public right of using the highway. The public have no right to step on to the land of a private proprietor adjoining the road. And though it is easy to suggest metaphysical difficulties when an attempt is made to define the private as distinguished from the public right, or to explain how the one could be infringed without at the same time interfering with the other, this does not alter the character of the right.^[201]

Through the resolution of similar types of disputes the courts came to decide that:

(1) the public right of navigation did not include a right to a particular speed of the river (and hence log drivers could not sue in public nuisance if damming slowed it down) since the right to the flow was a natural right actionable only by riparian owners in private nuisance;^[202]

(2) the owner of adjacent land could not sue in private nuisance if the defendant’s actions caused a river to lose depth in front of their property (even if this interfered with its abstract useability) since the right that the river have a particular depth was part of the public right of navigation not a natural right accessory to land;^[203] and

(3) a landowner whose property abutted a public highway, and which needed repair, could exercise its private law right of access by enclosing part of the highway and that such an enclosure would not constitute a public nuisance (ie violate the right to pass and repass) provided that it was conveniently done (ie was reasonable in regard to duration and amount of road enclosed).^[204]

Thus, the law allocated into which basket—the legal conception of land or the public rights of highway passage or navigation—certain attributes of roads and rivers belonged; and further delineated or systematized the interrelationship between the public and private rights in situations where they might be said to overlap.

With these two types of explanations for the natural rights set out, we can now return to the question of whether a natural right not to be overlooked or to be free from visual intrusion, which would be necessary to validate the result in Fearn on a legal conception of land analysis, could be justified by, or cohere with, either type of natural right. Since the complaint in Fearn ‘did not arise from the natural situation of the property itself’^[205] (ie, the interrelationship between land in its natural state), nor deal with any physical alteration or damage in the plaintiff’s column, it does not appear likely that any useful analogy could be made with the rights that are said to arise ex jure naturae.^[206] As said by Cotton LJ in Bryant v Lefever: ‘it would be a contradiction in terms to say that a man has a natural right against his neighbour in respect of a house which is an artificial addition’.^[207] Similarly, since the situation in Fearn did not involve the interrelationship between (the legal conception of) land and public rights over a shared amenity (such as roadways and rivers), it is equally unlikely that any justification can be found in an analogy made with the private law right of access. Thus, it is submitted that the result in Fearn cannot reasonably be accounted for by using a natural rights explanation.

V. Video Surveillance, Nuisance and Privacy

Before completing this article, we would like to deal with one final objection to our analysis, namely that the legal conception of land theory presented herein is suspect since it cannot account for the compelling or intuitive results in two Canadian cases that were approvingly cited in Fearn,^[208] namely Wasserman v Hall^[209] and Suzuki v Munroe,^[210] both of which held that video surveillance of the requisite intensity can constitute an actionable nuisance. The facts of the cases were, more or less similar, and involved one party erecting surveillance cameras which knowingly captured video images of both the neighbouring plaintiffs’ property and their own.^[211] While we would argue that the cases were wrongly decided as a matter of private nuisance (at least on the issue of video surveillance^[212]) since there was no physical interference with any property right of the plaintiffs, we would contend that the results of these cases can readily be explained using the emerging privacy tort of intrusion upon seclusion (or its statutory analogue where such statutes exist^[213]).

Wasserman itself shows that our proposed analysis is straightforward and plausible. In that case, the court concluded that: (1) the actions of the defendant were, in addition to being a private nuisance, in violation of British Columbia’s Privacy Act which makes it a tort for a person, wilfully and without claim of right, to violate another’s privacy;^[214] and (2) this legal wrong alone would have justified the remedies ordered.^[215] Moreover, given the fact that Suzuki also occurred in British Columbia and that the breaches of privacy therein proven were more severe than in Wasserman,^[216] it is apparent that a privacy claim would have equally been successful had it been pursued by the plaintiffs (who instead relied on Wasserman to ground their private nuisance claim). Case law from Ontario also suggests that a similar analysis is available in jurisdictions lacking a privacy act. For example, in Cecchin v Lander^[217]—which also involved a situation where the defendant placed recording cameras positioned towards the plaintiff’s backyard and residence—the plaintiff succeeded in their claim against the defendant for the tort of intrusion upon seclusion (in addition to being successful in private nuisance).^[218] The court concluded that: (1) the intentional harassment campaign of the defendant;^[219] (2) had interfered with a ‘fundamentally important private and personal space’ (ie the plaintiff’s residence); ^[220] (3) in a way that would be ‘highly offensive to a reasonable person’,^[221] and (4) caused ‘significant stress and irritation’,^[222] thereby satisfying that tort’s elements as elucidated in the foundational case of Jones v Tsige.^[223]

Given the possibility of this analysis, we agree with Victoria Ball who argued that it ‘is not the role of nuisance’ to provide solutions for these types of cases, since this ‘has implications for more than merely the tort itself [ie, it has implications for the whole law of property]. I do not deny that there potentially should be a response by the law, but I disagree that nuisance is the correct place for that response’.^[224] One way to test the correctness of this hypothesis is to ask whether the results in Wasserman, Suzuki, or Cecchin should have been different if the claim was brought by a mere licensee (or any other person without a right to exclusive possession) who would be unable to sue according to modern principles of private nuisance standing.^[225] If the answer is ‘No’ (as it seemingly is for most people), then this tells us that it is not the legal conception of land that is at the normative heart of these disputes but rather the innate right to privacy enjoyed regardless of one’s ownership or possession of land,^[226] and that it is this right that should provide the proper solution to the problems posed in Wasserman, Suzuki, and Cecchin.^[227] As others have noted, not to do this, privileges the protection of the privacy rights of property owners to those of the general public who might be surveilled in a hospital or hotel room.^[228]

Whether an intrusion upon seclusion analysis would be available on the facts of Fearn itself in light of the fact that: (1) the defendant merely provided the venue for the possible wrongs of the gallery attendees; (2) the defendant specifically requested that these patrons respect the privacy of the plaintiffs;^[229] and (3) the viewing platform also had many non-tortious uses (eg looking at the rest of the city, hosting functions and parties, etc^[230]) is a question that can be left for another day. However, given (1) recent appellate authority that has held that the defendant itself must have invaded or intruded into the plaintiff’s private affairs (as opposed to merely allowing others to do so through its negligence or recklessness) in order for the conduct element of the tort to be satisfied,^[231] and (2) the traditional principle that the mere facilitation of the wrong of another without a common design is an insufficient basis on which to treat a party as a joint tortfeasor;^[232] it would seem that the plaintiffs in Fearn, if suing in the Canadian privacy tort, would face something of an uphill battle.^[233]

VI. Conclusion

In the end, we have come to the same conclusion as the English Court of Appeal,^[234] namely that no private nuisance was committed on the facts of Fearn. The difficulty with the Court of Appeal’s analysis, however, is that this result was presented by them as flowing from an incoherent mishmash of principle and policy—a person’s property right to the use and enjoyment of their land was said to be arbitrarily cut off by concerns not to impede urbanization,^[235] and to not involve the courts in having to make tough decisions at the margins.^[236] Given the recent history of the UK Supreme Court, which has generally (and to its credit) preferred principled legal and conceptual analysis to oversimplified and overinclusive policy justifications,^[237] such a solution was doomed to raise red flags with many of their Lordships^[238] and practically invited them to reach a different result.^[239] In response, and under the influence of leading authors such as Nolan and Essert,^[240] the court applied what it perceived to be a principled analysis to the problems posed by Fearn finding, as we have seen, that there was ‘no conceptual or a priori limit to what can constitute a nuisance’.^[241] As we have pointed out, however, this way of viewing private nuisance, which requires all the conceptual work to be done at a substantial interference stage (of increasing complexity^[242]) is flawed since it cannot coherently explain the results of the ‘no rights’ cases of the highest authority that have held that, in certain situations, there is no actionable nuisance despite the existence of an objective and substantial interference with abstract use.

In contrast to the UK Supreme Court’s analysis, we have argued that there is a coherent interpretation of both the liability and no liability cases, which was the orthodox understanding in previous generations, namely that the tort of private nuisance requires an interference with the plaintiff’s rights to land, the legal conception of which includes physical interference with the ad coleum right, natural rights (to support, access and riparian water) or any acquired rights. In our view, this is what it means to say that private nuisance is ‘a tort against land.’^[243] On this view, liability for private nuisance is best understood as a two-step ordered sequence which requires, as its first step, an interference with a land specific right, and, at its second, an examination of whether that interference rose to the level the law determines is actionable (ie, the substantiality or intensity inquiry). When this is properly understood, it is clear that the claim in Fearn should fail for the same reason that the plaintiff’s claims failed in the leading ‘no rights’ cases, namely that there was no physical interference with any of the plaintiffs’ ad coluem, natural or acquired rights. No appeal to policy or to any concept outside of the legal conception of land is necessary in order to reach these conclusions and therefore, in the words of Donal Nolan, ‘understood in this way, [private nuisance] is thoroughly coherent cause of action’.^[244]

Additionally, we have also suggested two things. First, that the cases which have been relied upon as challenges to the orthodox physicalist understanding are: (1) actually consistent with it when properly understood; or (2) examples of liability for the tort of public nuisance, or for common law or statutory torts protecting privacy. Second, we have argued that it is unlikely that a right to be free from overlooking or visual intrusion could form a consistent set with the natural rights currently recognized by law. Thus, the result in Fearn could not be made consistent with the orthodox legal concept of land analysis by thinking of the liability imposed as being a response to the violation of that natural right.

For these reasons, the Supreme Court of Canada (and other Commonwealth ultimate appellate courts) should not follow Fearn on this threshold issue. As with all things in law, however, only time will tell whether this recommendation will ultimately be heeded and therefore whether Fearn will become a case of ‘fundamental importance’^[245] in Canadian law or will instead fade into relative obscurity ‘amongst a vast body of authority on nuisance stretching back centuries’.^[246]

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1. [2023] UKSC 4.

2. Fearn v Tate Gallery Board of Trustees [2019] EWHC 246, [2019] Ch 369.

3. ibid [178]. See also ibid [169]: ‘To take an extreme case, imagine the case of one neighbour who erects a viewing tower whose only purpose is to enable views into the gardens and houses of other neighbours, and who then charges an entry fee to allow members of the public to come in and do just that. I would consider that that would be likely to fall within the constituent parts of the law of nuisance as set out above. It would be an unreasonable use of the first neighbour’s land, and it would materially detract from the utility of the suffering neighbours’ land as that concept was used by Lord Hoffmann in Hunter. Being free to do so, I would prefer the reasoning of the minority in Victoria Park Racing.’

4. ibid [224]. See also [211]: ‘I therefore consider this to be a case in which the claimants are occupying a particularly sensitive property which they are operating in way which has increased the sensitivity. A differently built, but perfectly acceptable, property would have had more privacy built in, or rather would not have had the same degree of exposure. These properties are impressive, and no doubt there are great advantages to be enjoyed in such extensive glassed views, but that in effect comes at a price in terms of privacy.’

5. [2020] EWCA Civ 104, [2020] Ch 621.

6. [1811] 3 Camp 80, [1811] 170 ER 1312.

7. [1865] 20 CBNS 166, [1865] 11 HL Cas 290.

8. [1861] 30 LJ (Ch) 801.

9. [1937] 58 CLR 479.

10. Fearn (n 5) [75]: ‘The absence at common law of a right to light, short of an easement after 20 years’ use which satisfies the relevant conditions, and of general air flow and prospect, are mirrored by the absence of a right to prevent looking into a residence.’

11. Fearn (n 5) [99], [102].

12. Fearn (n 1) [12].

13. Fearn (n 1) [7].

14. [1932] AC 562 (HL) 619.

15. Fearn (n 1) [12].

16. Fearn (n 1) [13].

17. A term coined in Roderick Bagshaw, ‘Private Nuisance: The UK Supreme Court Takes a View’ (2023) 16 Journal of Tort Law 173, 176 and reiterated in Donal Nolan, ‘Private Nuisance After Fearn v Tate Gallery’ (2024) 5 Journal of Commonwealth Law 31, 40-42; Nicholas J McBride, ‘Conceptual and Contextual Categories in Private Nuisance and Private Law’ (2024) 5 Journal of Commonwealth Law 133, 151.

18. Fearn (n 1) [12].

19. Fearn (n 1) [179] (Lord Sales). See also ibid [176] (Lord Sales): ‘An important aspect of the enjoyment of the rights of property in one’s own home is that one can live there with a reasonable degree of privacy and without intrusion by others, hence the well-known saying that a person’s home is a castle.’

20. Fearn (n 1) [48].

21. Fearn (n 1) [48].

22. Fearn (n 1) [50].

23. Fearn (n 1) [271], [279].

24. See Bagshaw (n 17) 181 et seq; James Lee, ‘Different Views of Nuisance’ (2023) 139 LQR 535; Nicholas McBride, ‘“A Straightforward Case of Nuisance”: A Note on Fearn v Tate Gallery’ [2023] UKSC 4 (February 13, 2023). University of Cambridge Faculty of Law Research Paper No. 14/2023 < https://ssrn.com/abstract=4355995 > accessed 12 November 2024; Iain Field, ‘Uncommon and Unordinary: An Australian Perspective on the Fearn Decision’ (2024) 5 Journal of Commonwealth Law 187; Nolan, ‘Private Nuisance After Fearn’ (n 17) who all worry about the overreliance on the concept of ‘common and ordinary use’ in Lord Leggatt’s majority judgment. For a more positive view, see Allan Beever, ‘Nuisance and Private Space: Reflections on Fearn v Board of Trustees of the Tate Gallery’ (2024) 5 Journal of Commonwealth Law 159.

25. Donal Nolan, ‘The Essence of Private Nuisance’ in Ben McFarlane and Sinéad Agnew (eds), Modern Studies in Property Law, vol 10 (Hart 2019) 72.

26. Donal Nolan, ‘A Tort Against Land: Private Nuisance as a Property Tort’ in Donal Nolan and Andrew Robertson (eds), Rights and Private Law (Hart 2011) 463, 466 et seq. See also R Epstein, ‘Nuisance Law: Corrective Justice and its Utilitarian Constraints’ (1979) 8 JLS 49, 85 (‘“reasonableness” in nuisance cases should be … understood as a synonym for the word “substantial” that directs judicial inquiry into the level of the defendant’s invasion’); RW Wright, ‘Private Nuisance Law: A Window on Substantive Justice’ in D Nolan and A Robertson (eds), Rights and Private Law (Hart 2012) 505.

27. See Walter v Selfe (1851) 4 De G & Sm 315; Appleby v Erie Tobacco Co [1910] 22 OLR 533 (Div Ct).

28. See Miller v Jackson [1977] QB 966 (CA); Pilgrim v Milner (1997) 155 Nfld & PEIR 221 (Nfld CA); Susan Heyes Ince v South Coast BC Transportation Authority 2011 BCCA. See also, Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 (HL) 299 (Lord Goff) ‘reasonable user’.

29. Antrim Truck Center Ltd v Ontario (Ministry of Transportation) 2013 SCC 13 [19]; Jalla v Shell International Trading and Shipping Co Ltd [2023] UKSC 16, [2023] 2 WLR 1085, [2].

30. Fearn (n 1) [18], [23] (Lord Leggatt).

31. Manchester Ship Canal Co Ltd v United Utilities Water Ltd (No 2) [2024] UKSC 22 [6]; Jalla (n 29) [3].

32. Hunter v Canary Wharf, Ltd [1997] AC 655, 702 (Lord Hoffmann): ‘Nuisance is a tort against land, including interests in land such as easements and profits. A plaintiff must therefore have an interest in the land affected by the nuisance’; Smith v Inco, 2011 ONCA 628 at [43]: ‘all nuisance is a tort against land predicated on an indirect interference with the plaintiff’s property rights’. See also, Jalla (n 29) [18]; Thomas v Rio Tinto Alcan Inc, 2024 BCCA 62 [45].

33. We thank Arthur Ripstein for helping us to clarify this point.

34. As so named by Nolan, ‘A Tort Against Land’ (n 26) 464-465.

35. S A Smith, Contract Theory (OUP, 2004) 5 [emphasis in original].

36. Hunter (n 32) 685 (Lord Goff). See St Helen’s Smelting Co v Tipping (1865) 11 HL Case 642; Walker v McKinnon Industries Ltd [1951] 3 DLR 577 (PC Can) (fumes); Rapier v London Tramway Corp [1893] 2 Ch 588 (CA) (smells); Halsey v Esso Petroleum Co Ltd [1961 1 WLR 683 (noise); Drysdale v Dugas (1896) 26 SCR 20 (odours and noise); Dufferin Paving and Crushed Stone Ltd v Anger [1940] SCR 174 (vibrations); Chandler Electric Co v HH Fuller & Co (1892) 21 SCR 337 (steam).

37. Dalton v Angus (1881) 6 App Cas 740, 794–795 (Lord Selborne LC), 824 (Lord Blackburn); Hunter (n 32) 685 (Lord Goff). See also Earl Putnam Organization Ltd v Macdonald (1978) 21 OR (2d) 815 (CA) 818: ‘a landowner may so build on his land so as to prevent any light from reaching his neighbour’s window, unless the neighbour has acquired an easement by way of prescription or by an express or implied grant’.

38. [1997] A.C. 655, 685 (Lord Goff) citing Bland v Mosely (1587) 9 Co Rep 58a; Bryant v Lefever [1879] 4 CPD 172 (CA). See also Chastey v Ackland [1895] 2 Ch 389 (CA): ‘But can an interference with light or air which is not otherwise actionable be restrained on the ground of nuisance? … Suppose a man were to build a house on the edge of his own land, with windows for the admission of light and air looking over his neighbour’s land. Nothing could be a greater nuisance than completely to block such windows by building a wall immediately opposite to them. But it cannot be doubted that the neighbour might do this at any time within twenty years.’

39. The Mayor of Bradford v Pickles [1895] AC 587; Pilgrim v Milner (n 28).

40. Attorney-General v Doughty (1752) 2 Ves Sen 453; Fishmongers’ Co v East India Co (1752) 1 Dick 163; Hunter (n 32) 685 (Lord Goff); St. Pierre v Ontario (Minister of Transportation and Communications) [1987] 1 SCR 906 [13]: ‘From the very earliest times, the courts have consistently held that there can be no recovery for the loss of prospect’ citing William Aldred’s Case (1610), 9 Co Rep 57 b, 77 ER 816; Foli v Devonshire Club (1887) 3 TLR 706.

41. As Lord Selburne LC stated in Dalton (n 37) 797: ‘it is difficult to conceive anything more needful for the comfort of life and enjoyment of house property than the unobstructed enjoyment of light’. See also Pilgrim v Milner (n 28) [24]: ‘There is clearly no interference with the exercise of a right, - the appellants have not established the existence of an easement or profit à prendre to continue to take water from the well, nor is there some natural right to water in a pipe. … It was no doubt difficult for the land owners to find themselves without water as it would have been to find themselves without heat if they had not been able to reach an agreement with an oil company to supply fuel. But, there was no material damage to the land (the lots of the appellants), nor were noxious substances diverted to the land to interfere with the occupier’s enjoyment of it.’

42. Hunter (n 32) 709.

43. A term used by Nolan, ‘A Tort Against Land’ (n 26) 463.

44. Hunter (n 32) 702; Smith v Inco (n 32) [43]; Jalla (n 29) [18]; Thomas v Rio Tinto (n 32) [45].

45. Hunter (n 32) 687 (Lord Goff) citing FH Newark, ‘The Boundaries of Nuisance’ (1949) 65 LQR 480, 482.

46. See Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380 (HL) [26] where the Lord Hope noted that the ‘airspace above a height which may interfere with the ordinary user of land’ is regarded as ‘as a public highway to which only the public had a just claim’ but that the ‘same cannot be said of the strata below the surface.’ In relation to that space, he said at [27]: ‘The owner of the surface is the owner of the strata beneath it, including the minerals that are to be found there, unless there has been an alienation of it by a conveyance, at common law or by statute to someone else. … There must obviously be some stopping point, as one reaches the point at which physical features such as pressure and temperature render the concept of the strata belonging to anybody so absurd as to be not worth arguing about.’

47. See R v Patrick 2009 SCC 17 [44]: ‘The maxim cujus est solum ejus est usque ad coelum et ad inferos (“whoever owns the soil, owns all the way up to the heavens and down to the depths of the earth”) may be “so permeated with qualifications that it is best regarded as a ‘colourful’ and ‘fanciful phrase’ of limited validity” … Nevertheless, in Lacroix v. The Queen, [1954] Ex. C.R. 69, the court held that the owner of land has a right in the airspace over his property limited by what he can possess or occupy for the use and enjoyment of his land. In Dahlberg v. Naydiuk (1969), 10 D.L.R. (3d) 319 (Man CA), it was held that firing a gun over a farmer’s land was a trespass to the land. In Lewvest Ltd. v. Scotia Towers Ltd. (1981), 126 D.L.R. (3d) 239 (Nfld SCTD), a trespass was found to have occurred when the boom of a sky crane swung over the plaintiff’s land. … Without reviewing these cases in any detail, it seems obvious that the police could not with impunity position a cherry picker in the laneway behind the appellant’s house and, without “setting foot” on the property, grab various objects off the appellant’s lawn and porch for inspection.’

48. See Ernest J Weinrib, ‘Ownership, Use, and Exclusivity: The Kantian Approach’ [2018] 31 Ratio Juris 123, 132: ‘Use and exclusion thus form the positive and negative poles of the idea of usability, postulating respectively the subjection of the thing to the owner’s will and its subjection to no one else’s will. The implication of this polarity is that… neither use nor exclusion is conceptually prior to or independent of the other.’ For this reason, it seems to be a mistake to think that either impairment of useability, see Nolan, ‘The Essence of Private Nuisance’ (n 25) 71-72, or the right to exclude see S Douglas and B McFarlane, ‘Defining Property Rights’ in J Penner and HE Smith (eds), Philosophical Foundations of Property Law (OUP 2014) 231, by themselves, and in isolation, can be the conceptual core of private nuisance.

49. See Simon Douglas, ‘The Content of a Freehold: A “Right to Use” Land?’ in N Hopkins (ed), Modern Studies in Property Law, vol 7 (Hart 2013) 367-8: ‘A freeholder, A, is clearly owed a legal duty by all others … not to interfere physically with A’s land … [The] ad coelum principle … effectively means that there is an invisible boundary demarcating the freeholder’s land, and an “interference” with land can take the form of a physical crossing of this boundary’.

50. See Lord Sales in Fearn (n 1) when he says [157]: ‘Private nuisance … involves … interference with the amenity of the land, i e the right to use and enjoy it, which is an inherent facet of a right of exclusive possession.’

51. See Peter Benson, ‘Misfeasance as an Organizing Normative Idea in Private Law’ (2010) 60 UTLJ 731; Arthur Ripstein, Private Wrongs (Harvard University Press 2016) ch 3. See also Douglas (n 49), 365-66.

52. See Childs v Desormeaux [2006] 1 SCR 643; Michael v The Chief Constable of South Wales Police [2015] UKSC 2. In the language of the classic cases, this would merely be damnum absque injuria, loss without violation of right.

53. Through the laws of nature from the ownership of the soil: ex jure naturae rights are those which would be enjoyed by the owners without any human intervention through laws of gravity or the laws of physics. See Chasemore v Richards (1859) 7 HLC 349, 382; Peter Halkerston, Translation and Explanation of the Principal Technical Terms and Phrases Used in Mr. Erskine’s Institute of the Law of Scotland (Edinburgh, Printed 1820); ‘ex jure naturae’ (LSD Law) < https://www.lsd.law/define/ex-jure-naturae > accessed 15 November 2024. As Lord Wensleydale said in Chasemore v Richards, ibid, 382: ‘the right to the enjoyment of a natural stream of water on the surface ex jure naturae belongs to the proprietor of the adjoining lands as a natural incident to the right to the soil itself; and that he is entitled to the benefit of it, as he is to all the other advantages belonging to the land of which he is the owner … upon the same principle that he is entitled to the support of his neighbour’s soil for his own in its natural state. His right in no way depends on prescription or the presumed grant of his neighbour, nor from the presumed acquiescence of the proprietors above and below.’

54. William Lyon v The Wardens of the Fishmongers Company and the Conservators of the River Thames (1876) 1 AC 662, 684 (Lord Selborne).

55. Groat v Edmonton [1928] SCR 522, 733.

56. Chasemore (n 53) 382. See also Queen’s County (Municipality) v Cooper [1946] SCR 584, 599-600; Upper Ottawa Improvement Co v Ontario Hydro-Electric Power Commission) [1961] SCR 486, 493; Tate & Lyle Food & Distribution Ltd v Greater London Council [1983] 2 AC 509 (HL) 531; and more recently, Saik’uz First Nation v Rio Tinto Alcan Inc 2015 BCCA 154 [43]; Manchester Ship (n 31) [108]-[109].

57. Including tidal bodies of waters, see William Lyon (n 54); Tate & Lyle (n 56).

58. Rameshur v Koonj (1878) 4 App Cas 121 (PC); Ostrom v Sills (1898) 28 SCR 485 aff’g (1897) 24 OAR 526 (CA); Baily & Co v Clark, Son & Morland [1902] 1 Ch 649 (CA); Wakelin v Superior Sanitation Services Ltd (1995) 125 Nfld & PEIR 267 (PEISC AD) aff’g (1994) 116 Nfld & PEIR 239 (PEISC TD).

59. Chasemore (n 53) 150. See also Groat (n 55).

60. Dalton (n 37); Cleland v Berberick (1916) 36 OLR 357 (CA). There is no natural right to lateral support from subterranean water, but there is for any other substance (such as asphaltum) that is not water, and which is therefore considered part of the land, see Trinidad Asphalt Co v Ambard [1899] AC 594 (PC); Philip Girard, ‘An Expedition to the Frontiers of Nuisance’ (1980) 25 McGill LJ 565, 567-68. Compare Canada (National Capital Commission) v Pugliese, [1979] 2 SCR 104 suggesting that as a result of statutory modifications, there is now a limited right of support from water.

61. Dalton (n 37) 808.

62. Dalton (n 37); Iredale v Loudon (1908) 40 SCR 313; Gallant v FW Woolworth Co [1971] 1 WWR 336 (SKCA).

63. Davies v James Bay Railway Company [1914] AC 1043 (PC); Crow’s Nest Pass Coal Co Ltd v Alberta Natural Gas Co [1963] SCR 257.

64. Pountney v Clayton (1883) 11 QBD 820, 840, 841.

65. Rowbotham v Wilson (1857) 8 HLC 348.

66. See William Lyon (n 54).

67. [1935] SCR 455, 457, citing Marshall v Blackpool Corporation [1935] AC 16. See also Cusack v Harrow London Borough Council [2013] UKSC 40.

68. Empringham Catering Services Ltd v Regina (City) 2002 SKCA 16 [11].

69. Hunter (n 32) 702 (Lord Hoffmann).

70. Hunter (n 32) 685 (Lord Goff)

71. As one treatise states: ‘No natural rights exist to a single ray of light’, see S Bridge, E Cooke, M Dixon (eds), Megarry & Wade: The Law of Real Property (9^th ed, Sweet & Maxwell 2024) [26-031].

72. See Hunter (n 32) 709 where Lord Hoffmann makes this point (in Latin). See also the discussion in JW Neyers & J Diacur, ‘What (is) a Nuisance?’ (2011) 90 Canadian Bar Review 215, 221-22; Epstein (n 26) 59.

73. Hunter (n 32) 699 (Lord Lloyd). See also Girard (n 60) 566.

74. For a similar view, see Nolan, ‘A Tort against Land’ (n 26) 463: “most private nuisance cases concern [situations] … where the existence of protection against the type of interference in question is a given”; Donal Nolan, ‘Nuisance and Privacy’ (2021) 137 LQR 1, 4.

75. See Dalton (n 37) 794–795 (Lord Selborne LC), 824 (Lord Blackburn); Hunter (n 32) 685 (Lord Goff); Earl Putnam (n 37) 818.

76. Chastey v Auckland (n 38) 395-96.

77. Nolan, ‘A Tort Against Land’ (n 26) 457.

78. For a similar view, see J Gaunt and P Morgan (eds), Gale on Easements (18^th edn, Sweet & Maxwell 2020) [10-34].

79. McBride, ‘A Straightforward Case of Nuisance’ (n 24) 5. For a similar concern, see Nolan, 'Private Nuisance After Fearn’ (n 17) 42-44; Lee (n 24) 541: ‘Fearn amounts to a major extension of the tort’.

80. Fearn (n 1) [36] – [37].

81. (n 39). See also McBride, ‘A Straightforward Case of Nuisance’ (n 24) 5; Nolan, 'Private Nuisance After Fearn’ (n 17) 44.

82. See Nicholas J McBride and Roderick Bagshaw, Tort Law (7th edn, Pearson 2024) §17.8, who rely on Hurdman v North Eastern Railway Co (1878) 3 CPD 168 and Partakis-Stevens v Sihan [2022] EWHC 3249 (TCC) (rainwater).

83. As Lord Leggatt suggested in Fearn (n 1) [76]-[77].

84. (n 38) 176.

85. Nolan, 'Private Nuisance After Fearn’ (n 17) 45 .

86. Hunter (n 32) 709 (Lord Hoffmann) citing Bury v Pope (1587) 1 Cro Eliz 118.

87. This concern with creating incoherence with the rules of property was one of the reasons why their Lordships did not find that the interference with television reception was an actionable nuisance in Hunter (n 32), see especially 727 (Lord Hope): ‘I do not think that it would be consistent with principle for such a wide and novel restriction to be recognized. If that is so for easements, then the same result must follow so far as a remedy in nuisance is concerned.’ See also, Wright (n 26) 510: a ‘physical invasion’ is necessary, since ‘otherwise a property owner would be able to acquire easements … without the consent of the owners of other property and with paying’.

88. Dalton (n 37) 824 (Lord Blackburn); Hunter (n 32) 709 (Lord Hoffmann).

89. See Chasemore (n 53).

90. Musumeci v Leonardo 75 A 2d 175 (RI CA 1950) 177 quoted in Fontainebleau (n 107) 360. See also Bryant v LeFever (n 38) at 179.

91. As Nolan, ‘A Tort Against Land’, (n 26) 465, notes: ‘although it is tempting to discern in the no rights [cases] in respect of views and television reception a positive common law liberty … to build whatever one likes … this liberty may in fact be constrained by acquired rights’.

92. See the discussion in Nolan, 'Private Nuisance After Fearn’ (n 17) 44-45.

93. Fearn (n 1) [96]-[97].

94. See also, Cheng Lim Saw & Aaron Yoong, ‘“Being on Display in a Zoo”: an arguable case of Nuisance’ [2023] TLJ 28 [13] who, in our opinion, wrongly argue that ‘properly understood, these authorities dealt mainly with the opening of new windows and the obstruction of ancient lights, and are not “true” nuisance cases.’ [emphasis in the original]. See also, Saw Cheng Lim & Aaron Yoong, “Whither Privacy Protection in the Law of Nuisance” (2022) 34 Singapore Academy of Law Journal 505 [39]–[47].

95. See Copeland v Greenhalf [1952] Ch 488 (the right to park as many lorries for as long as the claimant wished was too extensive to constitute an easement in law, as it amounted practically to a claim to the whole beneficial user of the land over which it would be exercised). See also Bryant v LeFever (n 38) 178; Halifax County Condominium Corp No 277 v Halifax Regional Water Commission 2024 NSCA 1 [29] citing Robinson v Pipito, 2014 BCCA 200 [18]-[22]; Niata Enterprises Ltd v Snowcat Property Holdings Ltd, 2023 MBCA 48 [24]-[26].

96. For a discussion of this Kantian idea, see Ernest J Weinrib, Reciprocal Freedom: Private Law and Public Right (OUP 2022) 75-79.

97. A similar process can be seen in the modern tort of negligence where the courts invented numerous different policies and counter-policies in order to explain why reasonably foreseeable pure economic loss was generally not recoverable outside of situations of an assumptions of responsibility, when the answer was quite easy using an ordered sequence that emphasized that the thing negligently interfered with must first have the status of a right before one could proceed to questions of the reasonable foreseeability of the interference. In the famous words of Cardozo CJ in Palsgraf v Long Island Railroad Co 248 NY 339, 162 NE 99 (NY 1928) 99: ‘negligence is not actionable unless it involves the invasion of a legally protected interest, a violation of a right’. For a discussion, see P Benson, ‘The Basis for Excluding Liability for Economic Loss in Tort Law’ in D Owen Philosophical Foundations of Tort Law (OUP 1995) 427; R Stevens, Torts & Rights (OUP 2007) ch 3; JW Neyers, ‘Tate & Lyle Food & Distribution Ltd v GLC’ in C Mitchell & P Mitchell (eds), Landmark Cases in the Law of Tort (Hart 2010).

98. Fearn (n 1) [36].

99. He also makes this assumption in relation to overlooking and visual intrusion, see Fearn (n 1) [98]-[99], discussed below in text surrounding Fn 174-187.

100. See Miner v Gilmour (1859) 12 Moo PCC 131, 14 ER 861; Upper Ottawa Improvement Co v Ontario Hydro-Electric Power Commission) [1961] SCR 486.

101. Bradford v Pickles (n 39).

102. See Carter v Grasett (1888) 14 OAR 685 (CA); Jolly v Kine [1907] AC 1 (HL); Fishenden v Higgs & Hill Ltd [1935] 153 LT 128 (CA).

103. Bank of New Zealand v Greenwood [1984] 1 NZLR 525 (CA).

104. Earl Putnam (n 37); Fontainebleau Hotel Corp v Forty-Five Twenty-Five Inc 114 SO 2d 357 (Fla CA 1959).

105. Hunter (n 32).

106. Cf Nor-Video Services Ltd v Ontario Hydro (1978) 84 DLR (3d) 221 (Ont HCJ). See also the discussion in Wright (n 26) 511.

107. Nolan, ‘The Essence of Private Nuisance’ (n 25) 81–83.

108. Christopher Essert, ‘Nuisance and the Normative Boundaries of Ownership’ (2016) 52 Tulsa L Rev 85, 96–98. See also his discussion in Christopher Essert, Property Law in the Society of Equals (OUP 2024) Ch 4, which builds upon the analysis of the court in Fearn.

109. (n 48). See also, Douglas (n 49). For other physicalist theories, which are often said to suffer from the same explanatory faults as Douglas and McFarlane, see Epstein, (n 26); Wright (n 26); Bagshaw (n 17).

110. See also the critique and discussion in JCP Goldberg, ‘On Being a Nuisance’ (2023) 99 NYU LR 864, 878-886.

111. Fearn (n 1) [12]-[13].

112. Toronto Transit Commission v Swansea (Village) (n 67); Marshall v Blackpool Corporation (n 67).

113. Cleland v Berberick (n 60); Dalton (n 37).

114. Dalton (n 37) 804; see also Dalton (n 37) 797 (Lord Selburne LC). To similar effect, see Xpress Print Pte Ltd v Monocrafts Pte Ltd [2001] 3 LRC 735 (Sing CA) [34] describing the Anglo-Canadian law thusly: ‘If my neighbour’s land is in its natural state, I may not remove the soil on my land without providing alternative support for his land; but if my neighbour expends money and effort in building a bungalow on his land, then I may excavate with impunity, even though his bungalow may crumble to the ground.’

115. See Hunter (n 32) 702 (Lord Hoffmann); Fearn (n 1) [9].

116. For example, it is mentioned only once in Fearn, (n 1) [183], and only in response to natural rights arguments adduced in Victoria Park (n 9). It does not appear in any of the discussions in Hunter (n 32). But see Nolan, ‘A Tort Against Land’ (n 26) 463-68, where the importance of understanding natural rights is discussed.

117. Fearn (n 1) [38].

118. Barratt Homes Ltd v Dŵr Cymru Cyfyngedig (Welsh Water) (No 2) [2013] EWCA Civ 233; [2013] 1 WLR 3486, [58]-[60] (Llyod Jones LJ); 81 Arden LJ [81].

119. ibid [38].

120. See Earl of Harrington v Corp of Derby 1 [1905] Ch 205, 219-20 discussing the principles from Glossop v Heston and Isleworth Local Board (1879) 12 Ch D 102 (CA); Attorney-General v Dorking Union (1882) 20 ChD 595 (CA); Brown v Dunstable Corporation [1899] 2 Ch 378.

121. Bryant v Lefever (n 38) 181.

122. Fearn (n 1) [170]-[179].

123. [1984] 1 NZLR 525.

124. [1899] 1 Ch 255 (CA).

125. [1956] 1 WLR 335 (CA).

126. [1981] 1 All ER 659.

127. For a similar view see Wright (n 26) 511.

128. Lyons & Sons (n 124) 270 (Chitty LJ).

129. Protection of Property Act 1875, s 7.

130. Ward, Lock and Co Ltd v Operative Printers’ Assistants’ Society [1906] 22 TLR 327 (CA) 329 (Moulton LJ): ‘I cannot see that this section affects or is intended to affect civil rights or civil remedies. It legalizes nothing, and it renders nothing wrongful that was not so before. Its object is solely to visit certain selected classes of acts which were wrongful, ie were at least civil torts, with penal consequences’.

131. Lyons & Sons (n 124) 267.

132. See also ibid 271-72 (Chitty LJ): “The acts of watching or besetting here proved … constitute a nuisance at common law. True it is that every annoyance is not a nuisance; the annoyance must be of a serious character, and of such a degree as to interfere with the ordinary comforts of life. To watch or beset a man’s house for the length of time and in the manner and with the view proved would undoubtedly constitute a nuisance of an aggravated character.” Vaughan Williams did not think that a common (public) nuisance had been proven on the facts. ibid 273-74.

133. (1862) 3 B & S 66 (Ex Ct).

134. (1851) 4 De G & Sm 315.

135. (1867) LR 3 Eq 409.

136. (1876) 2 Ch D 692.

137. The then current judicial distrust of trade union activity and a fondness for the legal idea that all intentional and unjustified infliction of loss or interferences with “rights” to trade was tortious (which was abandoned as a general principle in Allen v Flood [1898] AC 1 (HL), but resuscitated (by the now Lord Lindley) in the narrow confines of conspiracies to injure in Quinn v Leathem [1901] AC 495 (HL) in order to hold union officers liable) also no doubt influenced the reasoning and result in Lyons & Sons (n 124). As Kerwin & Estey JJ said in Williams v Aristocratic Restaurants [1951] SCR 762, 780: ‘It is difficult to reconcile all the statements that appear in [Lyons & Sons and Ward]… but I think one fact emerges and that is that the approach to labour questions had changed materially down through the years. This change of approach is evidenced particularly in the decision of the House of Lords in Crofter Hand Woven Harris Tweed Company Limited v Veitch [[1942] AC 435.]. Such an approach places workmen and unions in a position, comparable at least to some extent to that held by employers’. See also, the discussion in RWDSU v Pepsi-Cola Canada [2002] SCC 8 [55].

138. [1976] QB 142, [1975] 3 All ER 1 (CA) 175.

139. ibid 177. Since he could see no evidence of any obstruction, and concluded that Ward (n 130) made it clear that there was no independent wrong of watching and besetting, Lord Denning MR would have discharged the interlocutory injunction ordered by the trial judge. In contrast, the other members of the court (Stamp and Orr LJJ) held the injunction had been properly granted and should continue since it was arguable that: (1) there was such an obstruction on the facts; and (2) despite the later decision in Ward, there might still exist some special principles surrounding picketing, see 183, 188-89). In the later case of RWDSU (n 137) the Supreme Court of Canada made it clear that Lord Denning had been correct, and that picketing was not problematic (ie per se illegal) unless it involved otherwise criminal or tortious conduct (n 140) [66], [103].

140. JE Penner, Property Rights: A Re-Examination (OUP 2020) 153. See also, Nolan, ‘A Tort Against Land’ (n 26) 465 where he classifies Lyons & Sons and Hubbard as cases concerning ‘obstructing access’.

141. See Tate & Lyle (n 56) 537-38.

142. See also, the discussion Lord Denning MR in Hubbard (n 138) 175; Cartwright J in Williams (n 137) 798.

143. Nolan, ‘The Essence of Private Nuisance’ (n 25) 77.

144. See R Kidner, ‘Nuisance and Rights of Property’ (1998) Conveyancer and Property Lawyer 267, 278 criticizing the cases as protecting the character of the neighborhood, which cannot ‘be a protectable interest which injures the land, for the character of a neighbourhood is always subject to demographic change’; Allan Beever, The Law of Private Nuisance (Hart Publishing 2013) 22 fn 30: ‘it is difficult to read the judgment in Laws … without thinking the case against the defendant, as expressed by the plaintiff and the judge, to be more than a little hysterical.’

145. Hunter (n 32) 686.

146. (n 126).

147. ibid.

148. ibid 664.

149. ibid.

150. (n 125).

151. Laws v Florinplace (n 126) 665.

152. ibid 664.

153. ibid 667.

154. ibid 668.

155. For a similar view, see Wright (n 26) 512.

156. R v Rimmington [2006] 1 AC 468 (HL) [10]. See also, Criminal Code, RSC 1985, c C-46, s 180(2).

157. See eg, Ware v Garston Haulage Ltd [1944] KB 30 (CA); Marsden Kooler Transport Ltd v Pollock Estate [1953] 1 SCR 66; Morton v Wheeler (CA, No 33 of 1956, January 31, 1956 unreported); Dymond v Pearce [1972] 1 QB 496 (CA); Chessie v JD Irving Ltd (1982) 42 NBR (2d) 192 (CA), Ryan v Victoria (City) [1999] 1 SCR 201. See also Goldberg (n 110) 920: ‘Insofar as brothels and other establishments are public nuisances, it is not simply because of the (putative) immorality of what goes on inside of them, but because they are … “disorderly”—they tend to come with various unpleasant accoutrements that confront persons in a way that significantly disrupts their ability to use or be in public spaces.’

158. See R v Rimmington (n 156) [36] where the court decided that that offense of public nuisance was sufficiently clear, precise, and adequately defined to pass scrutiny under article 7(1) of the European Convention provided that the traditional definition removed reference to morals.

159. Laws v Florinplace (n 126) 668.

160. Nolan, ‘The Essence of Private Nuisance’ (n 25) 77.

161. Laws v Florinplace (n 126) 662. Interestingly, that plaintiff was Andrew Leggatt, QC, the father of Lord Leggatt.

162. ibid 663-64.

163. See the statement of the case in Thompson-Schwab (n 128) 336, and the responsive discussion by Lord Evershed MR on 339-40.

164. Nolan, ‘The Essence of Nuisance’ (n 25) 77.

165. Nolan, ‘A Tort Against Land’ (n 26) 462.

166. See Smith v Inco (n 32) [59]-[65]; Harrison v Good (1871) LR 11 Eq 338 (Ch) 351 (Sir James Bacon V-C); Moy v Stoop (1909) 25 TLR 262 (KB) 263 (Channell J); Williams v Network Rail Infrastructure Ltd [2018] EWCA Civ 1514; [2019] QB 601, [46]-[48]. See also, Goldberg (n 110) 878 and Nolan, ‘A Tort Against land’ (n 26) 462: ‘while diminution in market value may be evidence of substantial interference with the claimant’s use and enjoyment of his or her land, it does not itself amount to such an interference—a company which triggers a collapse in house prices in an area by closing down the main source of local employment does not thereby create a nuisance.’

167. Shuttleworth v Vancouver General Hospital (1927) 38 BCR 300 (SC) [6].

168. Penner, Property Rights (n 140) 153. See also Kidner (n 147) 277-78.

169. See Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243; Caledonian Railway Company v Walker’s Trustees (1882) 7 AC 259; R v MacArthur [1904] 34 SCR 570; Toronto (City) v JF Brown (1917) 55 SCR 153. As Lord Penzance explained in McCarthy, ibid 263: ‘If, then, the lands of any owner have a special value by reason of their proximity to any particular highway, surely that owner will suffer special damage in respect of those lands beyond that suffered by the general public if the benefits of that proximity are withdrawn by the highway being obstructed. And if so, the owner of such lands appears to me to fall within the rule under which an action is maintainable, though the right interfered with is a public one.’ For a discussion of these cases, see Neyers & Diacur (n 72); JW Neyers & E Andrews, ‘Loss of Custom and Public Nuisance: The Authority of Ricket’ (2016) Lloyd’s Maritime and Commercial Law Quarterly 135.

170. Fearn (n 1) [7].

171. See McBride, ‘A Straightforward Case of Nuisance’ (n 24) 4: if the physicalist understanding is correct, 'Fearn is indeed a “straightforward case” … as there was no physical interference with the claimant’s land or a right attached to the land in Fearn’.

172. Victoria Park Racing (n 9) 506-7.

173. Tapling (n 7) 1078.

174. Fearn (n 1) [98].

175. Fearn (n 1) [99].

176. Victoria Park Racing (n 9) 504.

177. Victoria Park Racing (n 9) 520-21.

178. PH Winfield, “Privacy” (1931) 47 LQR 23, 27.

179. Victoria Park Racing (n 9) 521.

180. ibid 494.

181. Tapling (n 7) 1078 [emphasis added].

182. ibid 1073. We have added ‘of nuisance’ to recognize that, at least in Canadian law, some invasions of privacy are actionable under the tort of intrusion on seclusion or relevant statutory provisions, see our discussion below in Section V.

183. ibid [emphasis added].

184. ibid 1074.

185. ibid.

186. ibid 1075.

187. Victoria Ball, ‘The “property” in [Tate] modern nuisance: case comment on Fern v Trustees of the Tate Gallery’ [2023] 2 Conv 205, 210.

188. See Ball (n 187) 211: ‘the Court of Appeal decision determined that being free from visual intrusion is not part of what English law recognises as a property right, or put another way, privacy is not an element of any property entitlement that can be protected through the property torts. The Supreme Court, however, changed this shaping. Freedom from visual intrusion, or some degree of privacy, is now part of the property that nuisance can protect, and thus is part of what constitutes a property right.’

189. Which seems to have been Lord Penzance’s view, see Dalton (n 37) 808: ‘So far as my opinion goes this right, to the lateral support of the soil for an ancient house, stands upon the positive authority of a series of cases and a long acceptance in the Courts of Law, and the ratification of it by your Lordships ought not to be considered as the adoption of principles which might have a wide application in analogous cases.’

190. For an attempt, see Xpress Print Pte Ltd (n 114) 753-54 (Sing CA) where the court created a natural right to lateral support for the weight of buildings on the basis of Singaporean high intensity land-use patterns and in order to protect life, limb and property from physical damage.

191. Although discussions of natural rights in the law of property and their interrelationship with private nuisance is already rare, where discussion is found it generally just catalogues the existence and content of the natural rights (and the cases which establish them), as opposed to offering any unifying theory of them. For some exceptions, see Harry A Bigelow, ‘Natural Easements’ [1915] 9 Illinois L Rev 541; Epstein (n 26); Robert E Beck, ‘Protecting the Public Interest or Surface Owners from Their Own Folly: A Close Look at Preventing Subsidence under the Surface Mining Control and Reclamation Act of 1977 (SMCRA)’ (1997) 21 S Ill U LJ 391, 395-398.

192. For a similar view, see Bigelow (n 191) 545: ‘What we are dealing with is not B’s rights in A’s property but his rights in his own property…. Just as A is under a duty not to break B’s windows, so he is under a duty not to make B’s land subside; just as he is under a duty not to dump rubbish on B’s land, so he is under a duty not to pollute the air over B’s land or the stream that flows by B’s land.’

193. See Humphries v Brogden (1850) 116 ER 1048 (QB) 1050. For a similar view, see Beck (n 197) 396: ‘The basic point, however, is that whether there is vertical severance, as in lateral support cases, or horizontal severance, as in subjacent support cases, the courts presume that the parties intend to create two viable estates. To have a viable adjacent estate it is necessary to have lateral support. To have a viable surface estate it is necessary for the surface to have subjacent support. The physical fact of need in both instances was created by nature; adjacent tracts are supported by the adjacent soil and this renders the surface useful, and surface tracts are supported by strata below and this renders the surface useful. It is thus nature and not the parties that created the “right” to support.’ (citations omitted, relying on Humphries v Brogden, ibid. See also Davies v James Bay Railway Company (n 63) 1050.

194. Gaved v Martyn (1865) 19 CB (ns) 732, 759.

195. See Dalton(n 37) 791-92 (Lord Selborne LC): ‘In the natural state of land, one part of it receives support from another, upper from lower strata, and soil from adjacent soil. This support is natural, and is necessary, as long as the status quo of the land is maintained … Support to that which is artificially imposed upon land cannot exist ex jure naturae because the thing supported does not itself so exist; it must in each particular case be acquired by grant, or by some means equivalent in law to grant, in order to make it a burden upon the neighbour’s land, which (naturally) would be free from it.’

196. Rameshur v Koonj (n 58); Ostrom v Sills (n 58). See also, the definition of a watercourse (which emphases this inherent and natural interrelationship) given in Gale on Easements (n 78) [6-02]: ‘To constitute a watercourse … the flow of water must possess that unity of character by which the flow on one person’s land can be identified with that on his neighbour’s land’. For similar definitions, see Edwards v Scott (Rural Municipality) [1934] 1 WWR 33 (Sask CA); Wakelin v Superior Sanitation (n 58).

197. See Beck (n 191) 396: ‘the English courts distinguished the situation of the back lot owner who needed access over the surface of the front lot … from the lateral and subjacent support situations … [since] those needs arose because of human action’. For a similar argument, cast in utilitarian terms, see Epstein (n 26) at 95-96, where he distinguishes between unimproved land (where it is ‘unlikely that the implied reciprocal easements will work any dramatic shift in wealth, as virtually all neighbors will be better off by sharing the benefits and burdens in roughly equal proportion’ at 95) and improved land (where ‘unqualified obligation of additional support will in fact be unacceptable because of the substantial redistribution of wealth that it can work among neighbors [since] … the more comprehensive duty of support could result in the unhappy situation whereby the intensive and early development of B’s land will deprive A of any opportunity (short of buying out B) of making like use of his own property’ at 96).

198. On systematicity, see Weinrib, Reciprocal Freedom (n 96) 73-75.

199. (n 54).

200. Such as The Attorney General v The Conservators of the Thames (1862) 1 H & M 1, 71 ER 1 (Ch); Rose v Groves, 5 Man. & G. 613, 134 Eng. Rep. 705 (CP 1843).

201. William Lyon (n 54) 676.

202. See Upper Ottawa Improvement Co v Ontario (Hydro-Electric Power Commission) [1961] SCR 486.

203. Tate & Lyle (n 56) 531-34; 536-38. For a detailed discussion of the case, see JW Neyers and A Botterell, ‘Tate & Lyle: Pure Economic Loss and The Modern Tort of Public Nuisance’ (2016) 53 Alberta Law Review 1031.

204. See Harper v GN Haden & Sons Ltd [1933] 1 Ch 298 (CA); Belliveau v Keddy (1962) 33 DLR (2d) 750 (NSSC). As explained in Trevett v Lee [1955] 1 WLR 113 (CA) 11 (Evershed MR): ‘there are two kinds of rights: there is the right of the ordinary person . . . to use the highway for passage from one point to another; and there is the right of the householder to use the highway for access to his house … And the question whether a householder is or is not obstructing the highway so as to give rise to a cause of action is to be judged by balancing, on standards of reasonableness, the claims and conduct of the householder on the one side and the members of the public on the other.’

205. Iredale v Loudon (1908) 40 SCR 313 [96] (Duff J).

206. Compare Xpress Print (n 114) 753 (Sing CA) where the court emphasized that one of the reasons for expanding the natural right of support to include the weight of buildings, a reason which was implicit in the more limited natural right, was to prevent physical damage to the property. See also Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] QB 836 (CA) 855 where one of the reasons for which the court concluded that the natural right to support was violated by a defendant who allowed natural causes to undermine support, using the principles outlined in Goldman v Hargrave [1967] 1 AC 645 (PC) and Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 (CA), was the physical nature of the damage.

207. Bryant v Lefever (n 38) 180.

208. Fearn (n 1) [101], [186].

209. [2009] BCSC 1318.

210. [2009] BCSC 1403.

211. See Wasserman (n 209) [4] and Suzuki (n 210) [31].

212. The analysis of private nuisance caused by noise in Suzuki seems entirely orthodox and in keeping with the theory herein presented.

213. British Columbia, Privacy Act, RSBC 1996 c 373; Manitoba, Privacy Act, RSM 1987 c P125; Saskatchewan, Privacy Act, RSS 1978 c P-24; and Newfoundland, Privacy Act, RSN 1990, c P-22. See also, Lee (n 24), 537 suggesting that these cases could have been handled in England by using the civil offence created in the Protection from Harassment Act 1997.

214. Privacy Act, RSBC 1996, C 373, s 1, discussed [73]-[75].

215. Wasserman (n 209) [88], [94]-[96].

216. In that they were intentionally done to provoke and annoy with little claim of justification and covered more areas of the plaintiff’s property than in Wasserman, see Suzuki (n 210) [98]-[99].

217. [2019] OJ No 6847 (SCJ).

218. Interestingly the court did the two analyses together (‘Nuisance/Invasion of Privacy’) suggesting that it did not think that there were two wrongs or perhaps that this could be seen as almost a hybrid claim that intermixed aspects of each, see [79], [91]. We suggest that the better way to analyze these fact patterns is to examine each right separately.

219. Cecchin (n 217) [91].

220. Cecchin (n 217).

221. Cecchin (n 217).

222. Cecchin (n 217) [100].

223. [2012] ONCA 32. See also Owsianik v Equifax Canada Co [2022] ONCA 813 [1], [54].

224. Ball (n 187) 211. For a similar view, see Emma Lees, ‘Fearn v Tate Galleries: Privacy and the law of nuisance’ [2021] Environmental Law Review 23.

225. See R v Henderson (2008) 292 DLR (4th) 114 (Ont Div Ct) [24]: ‘It is well-established in the case law and academic writing that the tort of nuisance is rooted in an interest in land, either actual ownership or an exclusive right to occupy, and further that a mere licensee does not have a sufficient interest to sue in nuisance’ citing Hunter (n 32); Vaughn v Halifax-Dartmouth Bridge Commission (1961) 29 DLR (2d) 523 (NSSC); Tock v St John’s Metropolitan Area Board [1989] 2 SCR 1181. Similarly, in Sutherland v Canada (Attorney General), 2001 BCSC 1024 [233], rev’d on other grounds 2002 BCCA 416, the court applied Hunter in preference to the older cases of Motherwell v Motherwell, [1976] 6 WWR. 550 (Alta CA) and Devon Lumber Co v MacNeill (1987), 45 DLR (4th) 300 (NBCA) since Hunter was ‘more consistent with the nature and the origin of claims in nuisance’. See also, Smith v Inco (n 32) [43]; Jalla (n 29) [18].

226. As Maria Lee perceptively notes: ‘It is not intuitive to characterise loss of privacy as harm to land rather than people’: Maria Lee, 'Visual Intrusion, Public Interests and Private Nuisance: Fearn v Tate’ [2023] CLJ 208, 209. For an examination of the juridical justification for the right to privacy, see Weinrib, Reciprocal Freedom (n 96) 138-140.

227. We thank Robert Stevens for originally making this point to us.

228. See Paula Giliker, ‘Protecting Privacy though the Tort of Private Nuisance: Fearn v Tate Gallery in the UK Supreme Court’ (2024) 5 Journal of Commonwealth Law 1, 25-26; Jeevan Hariharan, 'The view from the top: visual intrusion as nuisance in Fearn v Tate Gallery’ (2024) 87 MLR 697, 712-13.

229. Fearn (n 1) [49], [142].

230. Fearn (n 1) [1], [142].

231. See Owsianik (n 223) [59] (Doherty JA for the court): ‘The first element, the conduct requirement, requires an act by the defendant which amounts to a deliberate intrusion upon, or invasion into, the plaintiffs’ privacy. The prohibited state of mind, whether intention or recklessness, must exist when the defendant engages in the prohibited conduct. The state of mind must relate to the doing of the prohibited conduct. The defendant must either intend that the conduct which constitutes the intrusion will intrude upon the plaintiffs’ privacy, or the defendant must be reckless that the conduct will have that effect. If the defendant does not engage in conduct that amounts to an invasion of privacy, the defendant’s recklessness with respect to the consequences of some other conduct, for example the storage of the information, cannot fix the defendant with liability for invading the plaintiffs’ privacy.

232. See The Koursk [1924] P 140; Cook v Lewis, [1951] SCR 830; Sea Shepherd UK v Fish & Fish Limited, [2015] UKSC 10 at [58] (Lord Neuberger): ‘mere assistance by the defendant to the primary tortfeasor, or “facilitation” of the tortious act, will not do, as explained by Lord Templeman in CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013, 1057b–c, and 1058g–h, and by Hobhouse LJ in Credit Lyonnais Bank Nederland NV (now known as Generale Bank Nederland NV) v Export Credits Guarantee Department [1998] 1 Lloyd’s Rep 19, 46. There must be a common design between the defendant and the primary tortfeasor’. For a very different analysis of the facts, suggesting that there might be an aspect of common design, see Beever, ‘Nuisance and Private Space’ (n 24) 177-178.

233. In relation to the English law, see Giliker (n 228).

234. Fearn (CA) (n 5).

235. See Fearn (n 5) [74]: ‘The reason for … (no general right to light, air flow and prospect) has been judicially explained as being that such a right would constrain building in towns and cities.’ And [78]: ‘this was, therefore, purely a matter of policy’.

236. See Fearn (n 5) [81]: ‘Unlike such annoyances as noise, dirt, fumes, noxious smells and vibrations emanating from neighbouring land, it would be difficult, in the case of overlooking, to apply the objective test in nuisance for determining whether there has been a material interference with the amenity value of the affected land.’

237. See Michael (n 52); Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [2018] AC 736; and most recently Manchester Ship (n 31).

238. See Lord Leggatt’s response, Fearn (n 1) [107], to the second policy concern raised by the Court of Appeal: ‘This appears to be an argument that, because there may be cases of intrusive viewing in which it is difficult to decide whether or not the objective test of nuisance is met, there should be no liability in a case where the test is clearly met—of which the Court of Appeal seem (rightly in my view) to accept that this case is an example. This argument is deeply unpersuasive. The law would be utterly ineffectual if the possibility of hard cases were treated as a reason to deny relief in clear cases.’

239. See Lord Leggatt at Fearn (n 1) [94]: ‘I do not understand the Court of Appeal’s judgment to suggest that there is any conceptual reason why visual intrusion cannot be an actionable nuisance. The judgment recognises that different categories of nuisance are merely examples and that no rigid categorisation of relevant factual situations is possible … Rather, their suggestion is that “overlooking” is one of a small number of specific types of interference with the use and enjoyment of land which are excluded from the scope of the law of private nuisance as a matter of legal precedent and policy.’

240. See Nolan, ‘The Essence of Private Nuisance’ (n 25); Essert, ‘Nuisance and the Normative Boundaries’ (n 108). For another analysis supportive of Fearn, see Goldberg (n 110) 882-83.

241. Fearn (n 1) [12].

242. According to McBride & Bagshaw (n 17) §17.4(C), in lieu of the traditional doctrine, Fearn now mandates an examination of: (1) the substantial interference principle; (2) the claimant’s ordinary use principle; (3) the defendant’s ordinary use principle; and (4) the defendant’s rightful use principle, at this stage of the nuisance analysis.

243. Hunter (n 32) 702 (Lord Hoffmann) ; Smith v Inco (n 32)[43].

244. Nolan, ‘A Tort against Land’ (n 26) 457.

245. Beever, ‘Nuisance and Private Space’ (n 24) 186. See also, Hariharan (n 234) 714.

246. Nolan, 'Private Nuisance After Fearn’ (n 17) 74.