Dr Jeevan Hariharan cited by Australia’s top court

Research by Dr Jeevan Hariharan (Lecturer in Law at UCL Laws) on the UK Supreme Court case Fearn v Tate Gallery [2023] UKSC 4 has been cited in a recent judgment by Australia’s apex court, the High Court of Australia, when discussing the applicable test for the tort of private nuisance.

The case, Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53, concerned a class action by businesses seeking compensation for disruption caused by delays to the construction of Sydney Light Rail, a public transport system that runs through central Sydney. The lead plaintiffs included two businesses who suffered substantial interferences with the use and enjoyment of their premises, as a result of the loud noises, dirt, dust, hoardings and road blockages caused by the construction.

Overturning the decision of the NSW Court of Appeal and restoring the orders of the trial judge, the High Court held that the public authority responsible for the project was liable under the tort of private nuisance. The judgment is significant because it opens the door for hundreds of other businesses to seek compensation as well.

While the High Court of Australia reached a unanimous outcome, the court was divided on the test for when a substantial interference with land becomes an actionable nuisance. The majority chose to follow the UK Supreme Court in Fearn which focused on the “common and ordinary” use of land; the minority preferred a test of “reasonableness”. It was in this context that Chief Justice Gageler (dissenting on this point) quoted Dr Hariharan, who had argued in the Modern Law Review that the “common and ordinary” use test “over-simplifies the complex balance between competing interests” required in a nuisance claim.

In addition to his piece in the Modern Law Review, Dr Hariharan organised and chaired a public event on Fearn hosted by the UCL Laws Private Law Group in 2023. His work on Fearn also formed a central part of the analysis in a recent paper ‘Bridging the Gap between Privacy Theory and Privacy Law’ for which he was awarded the Hart Publishing Prize for best paper by an early career scholar at the Obligations XI conference at Harvard Law School in July 2025.

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• Dr Jeevan Hariharan