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Nuisance, amenity and praediality: Fearn’s implications in Scotland

Nuisance, amenity and praediality: Fearn’s implications in Scotland

Published 18th April 2023

by John MacLeod, Senior Lecturer in Private Law at the University of Edinburgh.

The UK Supreme Court’s decision in Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2023] 2 WLR 339 generated an unusual degree of interest for a private law decision with reports and commentary in a number of newspapers (helpfully collated here). Much of this is no doubt due to the Tate being such a well-known institution but the case also represents an interesting development in the law of nuisance.

The claimants were the leaseholders of flats in London directly opposite the viewing gallery at the top of the Blavatnik Building, which is part of the Tate Modern. The flats had floor-to-ceiling windows. This meant that the viewing gallery’s visitors (who numbered several hundred thousand per year) had a direct view into the claimants’ flats. It can readily be imagined that this was undesirable for the claimants but there was considerable doubt about whether they had any remedy of in the law of nuisance.

Doubts focused on two questions: 1) whether “overlooking” can, as a matter of principle, ever amount to a nuisance and 2) how courts should approach the question of determining whether a given interference in a particular case.

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Moveable Transactions (Scotland) Bill

Moveable Transactions (Scotland) Bill

Published 2nd June 2022

by Andrew Steven, Professor of Property Law, University of Edinburgh.

The Moveable Transactions (Scotland) Bill was introduced to the Scottish Parliament on 25 May. The Scottish Government is therefore implementing the recommendations made by the Scottish Law Commission in its three-volume Report on Moveable Transactions (Scot Law Com No 249, 2017). The Public Finance Minister, Tom Arthur MSP has described the Bill as “vital to helping businesses and the wider economy”.

The report was the culmination of a large project conducted by the Commission. Its Discussion Paper of 2011 (Scot Law Com DP No 151, 2011), on which Professor George Gretton, Lord President Reid Professor of Law Emeritus in Edinburgh Law School was lead Commissioner, was the subject of a symposium by the Edinburgh Centre for Private Law in October 2011. The papers presented were published in the May 2012 issue of the Edinburgh Law Review. Following this symposium and consultation, I was responsible as lead Commissioner for taking the project through to the 2017 Report.  It has a draft Bill annexed to it, on which the Scottish Government Bill is based.  The Bill is arguably the largest reform to Scottish moveable property law since the Sale of Goods Act 1893, although its successor, the Sale of Goods Act 1979, falls outwith scope because of its UK-wide application.

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Electronic trade documents in Scots law

Electronic trade documents in Scots law

Published 14th April 2022
By Andrew Steven, Professor of Property Law, University of Edinburgh

Economic importance

In 2021 international trade was worth approximately £1.266 trillion to the UK. The moving of goods across borders still heavily relies on paper documents and practices which developed centuries ago. A trade finance transaction typically involves 20 entities and between 10 and 20 paper documents, totalling over 100 pages. Recent technological developments have enabled the use of secure forms of electronic documents. But the law requires to catch up.

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Delictual Liens

Delictual Liens

Published 30th September 2020
By Andrew Steven, Professor of Property Law, University of Edinburgh

In Scotland, the law of rights in security develops slowly. There are reasons for this. First, there is limited legislative time for reform of private law. Second, it is an area which has been relatively neglected in terms of doctrinal study. Third, we are a small jurisdiction and case law is limited.

Nevertheless, there are some grounds for optimism. The Scottish Government’s legislative programme for 2020/21 published on 1 September contains a commitment to “work towards implementation of the Scottish Law Commission proposals on reforming the law relating to Moveable Transactions, with a view to introducing a Bill early in the new Parliament” and accepts that this would “make it easier for businesses and individuals to raise finance, thereby assisting economic recovery”. The last month has also seen the successful defence by Andrew Sweeney of his University of Edinburgh doctoral thesis on the landlord’s hypothec. In addition, an earlier Edinburgh thesis on floating charges by Dr Alisdair MacPherson, now Lecturer in Law at the University of Aberdeen, has been published in book form.#

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Climate Change and Scottish Property LawDry soil

Climate Change and Scottish Property Law

Published 5th August 2020
By Andrew Steven, Professor of Property Law, University of Edinburgh

In the pre-pandemic days of last autumn, the Scottish Government placed addressing climate change at the heart of its Programme for Scotland 2019-2020. The First Minister, Nicola Sturgeon, in her introduction to that publication, stated: “The consequences of global climate change will be severe. While in some parts of the world its effects are existential, we will also feel the impact here at home. We must act.” The Climate Change (Emissions Reduction Targets) (Scotland) Act 2019 is an example of the Scottish Government so acting.

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