A Practical Guide to Visual Intrusion and the Tort of Nuisance

Following the Supreme Court’s landmark decision in Fearn v Board of Trustees of the Tate Gallery, ‘visual intrusion’ is now established as an act that can give rise to liability in the tort of nuisance. The facts of that case, in which the gallery’s use of its viewing platform was found to interfere with the property rights of its residential neighbours, are unlikely to reoccur. Nevertheless, the judgment has opened the door for the law of visual intrusion to expand and develop, especially in the context of disputes between neighbours.

This book explores the meaning of the term ‘visual intrusion’, including an assessment of the acts which might fall within its scope, and its place within the wider tort of nuisance. It examines the various elements of the cause of action which any claimant will need to establish, as well as the remedies they may be able to obtain and the defences that may prevent them from doing so. This book also considers in detail the Supreme Court’s consideration of the test for liability in cases of nuisance for interference with the use and amenity of land.

ABOUT THE AUTHOR

Tom Frazer is a barrister practising from Selborne Chambers in all areas of property and commercial chancery law. He is based in London, but frequently acts in proceedings across the breadth of England and Wales. Tom is also called to the Bar in the British Virgin Islands, acting as a consultant to, and appearing on behalf of, law firms within that jurisdiction. Tom has a first-class degree in ancient history from the University of Bristol and studied for his Graduate Diploma in Law at City University London. He is qualified to accept direct access work.

CONTENTS

Introduction – ‘Visual Intrusion’ And the Case of Fearn
Fearn v Board of Trustees of the Tate Gallery
‘Visual Intrusion’

Chapter One – Visual Intrusion in the Context of Nuisance
Locating ‘Visual Intrusion’ In Nuisance
Essential Elements of the Cause of Action

Chapter Two – Actionable Interference and ‘Unreasonable User’ In Light of Fearn
The Judgment of the Majority in Fearn
The Locality Principle
The Dissenting Judgment in Fearn

Chapter Three – What Constitutes Visual Intrusion?
The Complaint in Fearn and ‘Overlooking’
Examples of Conduct That May Give Rise to Liability
Visual Intrusion Distinguished From Other Species of Nuisance

Chapter Four – Defences to Visual Intrusion
The Defendant’s Right to Carry on an Activity
Coming to the Nuisance
Sensitivity of the Claimant’s Property
Protective Measures
Public Interest and Planning Permission

Chapter Five – Remedies for Visual Intrusion
Injunctive Relief
Damages
Limitation

Conclusion