Traditionally, courts approached private nuisance with a “reasonableness” test. This meant asking whether the interference was something a normal person in that area should reasonably have to tolerate. Context matters: what would be a nuisance in a quiet residential square might not be a nuisance in a busy industrial area. Judges would weigh factors like the locality, the duration and timing of the interference, and whether the affected neighbour was being unusually sensitive.
What is Private Nuisance?
Private nuisance occurs when a person does something on their own land that they may lawfully be entitled to do, but the consequences wrongfully interfere with a neighbour’s ordinary use and enjoyment of their land.
It may cause actual physical damage to the neighbour’s property, such as oil leaking from a tank and contaminating soil, or flooding damaging a building. Alternatively, it may unreasonably interfere with the neighbour’s enjoyment of their property without causing physical damage, such as excessive noise or offensive smoke and fumes.
A New Approach – “Common and Ordinary” Use
Recent cases have reshaped the test by focusing on whether each neighbour’s use of their land is “common and ordinary.” This shift became prominent with the UK Supreme Court’s decision in Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4. This was the famous Tate Modern viewing platform case. Residents complained that the gallery’s open viewing platform allowed hundreds of thousands of visitors to peer directly into their homes, ruining their privacy. The Supreme Court agreed that this visual intrusion could amount to a nuisance.
Importantly, the majority of the Supreme Court in Fearn v Tate introduced a more categorical test. They said the old reasonableness balancing was essentially a shorthand for a clearer rule. Under this new framework, the court will consider the following:
- Is the claimant (i.e. the party who is claiming that there is a nuisance) using their property in a common and ordinary way? If not, and they have an unusually delicate use of the land that most people wouldn’t have, then it will be harder to claim that their neighbour’s use is causing a nuisance.
- Is the defendant (i.e. the party alleged to be causing the nuisance) using their property in a common and ordinary way? If the activity causing the problem is just a normal, everyday use of land for that area, and it’s carried out in a reasonable manner, then it is unlikely to be considered a nuisance. Neighbours are expected to tolerate ordinary use. However, if the activity is “something other than common and ordinary” for that location, then a nuisance can arise.
In the Tate Modern case, the flat owners’ use of their properties (living in a residential flat) was deemed ordinary, and the court treated the Tate’s viewing platform as an exceptional use of its land. Therefore, the court found it was a nuisance.
The Nicholas v Thomas Case (2025) – Applying the New Test
In the High Court case, Nicholas & Ors v Thomas & Anor [2025] EWHC 752 (Ch), illustrates how this new approach plays out, even outside big-city scenarios. The claimants were breeding valuable gyrfalcons for export, and these birds are extremely sensitive to noise and disturbances, especially during breeding season. The defendants decided to construct a large barn right next to the falcon aviaries during breeding season despite being warned that the disturbance could harm the birds. Sadly, the commotion caused by the construction led to the death of three falcons and many lost eggs.
The falcon breeders sued for private nuisance. The defendants claimed that raising gyrfalcons is not a common use of land in a farming area, whereas their building of a barn should be considered a typical farming activity.
The High Court disagreed and sided with the falcon breeders. The judge, applying the Fearn v Tate principles, took a practical view. Building a barn can be a normal activity on a farm but doing it right next to a sensitive operation at the worst possible time and ignoring warnings was not a reasonable way to go about it. The court emphasised that the “common and ordinary use” test must be applied in context, looking at the actual use of the land, not just some abstract idea of what is typical for the area. Therefore, the court found their activity constituted an unlawful interference (i.e. a nuisance) and even negligence, and the breeders were awarded significant damages for their losses.
What Does This Mean for Landowners?
These developments mean that when neighbour disputes arise over disturbances, the court will likely first look at what each party is doing with their land.
- If you’re carrying out a typical, everyday use of your property in a considerate way the law is more likely to say your activity is within your rights. Your neighbours are expected to tolerate reasonable levels of ordinary behaviour.
- If you’re doing something unusual or special on your land and it causes substantial interference with your neighbour’s ordinary use of their property, you’re at higher risk of being found liable for nuisance.
- Likewise, if you are the one affected, you’ll have a stronger case if your own use of your property is ordinary. The courts are less sympathetic if the problem only arises because of some abnormal sensitivity on your part.
If the occupier of neighbouring property is using or developing their property in an unnatural way which may cause nuisance to the occupiers of adjoining property, then there is a risk that the party adversely affected may issue proceedings for an injunction or damages.
Conclusion and Getting Advice
Private nuisance disputes can be complex, and the law is adapting to disputes as they occur. If you’re facing a situation where the use of your neighbour’s land is uncommon and causing you loss, or concerned that your own development plans might affect adjoining property, leaving you exposed to a potential claim, then it’s wise to obtain early legal advice specific to your circumstances. Understanding whether an activity is a “common and ordinary” use of land, or an unreasonable interference, is crucial and sometimes not obvious.
Want to speak to a nuisance claims specialist? Don’t hesitate to speak to a member of the DTM Legal Property Litigation team for guidance. You can contact James Holton, by emailing james.holton@dtmlegal.com or calling 01244 354824.
