Donal writes:

“There was no interference with the usability of the land in Victoria Park Racing. They just made a business being carried out there less profitable. I can do the same by opening up a supermarket next to your convenience store. Not a nuisance.”

 

I don’t agree.

 

The  “abstract usability” of the land (by looking down on it and broadcasting what was happening) did reduce the “abstract usability” of the land. It reduced its commercial value as a space.

 

You might say that in Fearn it was the staring alone that reduced the usability. But it wasn’t, it was the staring plus the fact that it would upset residents. Staring at land doesn’t do anything to land.

 

If someone sets up a supermarket next to your convenience store, that is almost certainly not actionable (today, in England) because it is reasonable. But it isn’t not actionable because it doesn’t interfere with the “abstract utility” of the neighbouring land. It does. It makes it less useful.

 

However, the reason it shouldn’t be actionable (and isn’t elsewhere) is that despite the reduction in the utility of the land on which the convenience store sits, it doesn’t interfere with any right to that land.