4)  ‘Coming to’ a nuisance is no defence


This is the fourth in a short series of posts considering the consequences of the judgment of Leggatt JSC in Fearn v. Tate Gallery Trustees [2023] UKSC 4 [2023] 1 WLR 339, setting out what he described as a set of applicable principles relevant to the assessment of private nuisance.
Post (1) was a historical examination of relevant case law which showed that the contemporary notion of the “threshold” test is not lower than the test which was applied when it was first established in Walter v. Selfe (1851). Post (2) explains that whilst the “threshold” test is an objective one, it is also adapted by judges to reflect individual reactions to different nuisances.  Post (3) was concerned to find what the limits may be to the scope of the tort of private nuisance: nuisance has been described as Protean because like the god of that name it is constantly changing shape and form.
One of the first things that judges are inclined to do if they are not familiar with private nuisance is to ask whether the person alleged to be causing the nuisance was there before the person who complained of the nuisance. If the person who is carrying out the activities said to be causing the nuisance was doing so before the arrival of the complainant, then it is colloquially said that the complainant “came to” the nuisance.
Judges and others are always surprised to understand that “coming to” a nuisance is not a defence. That is that it is not a defence for a person who causes emissions which are said to cross the nuisance threshold, such as noise or odour, to point out that they were doing this because the complainant arrived on the scene.
The fact that “coming to” a nuisance is not a defence has been clearly recognised since Sturges v. Bridgman (1879).
In that case, the defendant was a sweet maker who had two giant pestles and mortars attached to the wall of his manufactory. He has been making sweets for more than 60 years. The plaintiff was doctor who owned adjoining premises. The doctor built a consulting room up against the manufactory and complained that the vibrations and noise meant that he could not practicably carry out investigations into his patients. The doctor succeeded in his claim, despite the fact that the sweet manufacturer complained that he had been doing the same thing for many years without objection.
Ultimately, the outcome on this particular issue was a matter of policy, the Court of Appeal taking the view that if the defendant was correct, then the use of land could effectively be sterilised for all time. They gave the example of the barren moor. If there was a forge in the middle of the moor, then if the defendant was correct, it would mean that the moor could never be developed, since the owners of any future development would not be able to object to the smell and fumes from the moor.
The law of nuisance, therefore, can have an incremental effect in bringing about a change in the nature and character of an area. An example in practice is R. v. Exeter City Council, ex p. Thomas & Co (1991), in which an attempt to stop the grant of planning permission by industrial users failed. The Court held that: “it was perfectly proper for a council to wish to encourage residential development in an area containing existing industrial users and to harbour the hope that the existing users would relocate their business … it did not follow that the interests of an existing user should prevail; … the council had to arrive at a decision solely in the light of public interest, even where the inevitable consequence of a grant of permission would be to force out an existing use”.
In Lawrence v. Fen Tigers (2014) Lord Neuberger PSC and Lord Carnwath JSC discussed the possibility that a change to the rule might be appropriate, at least where there was some physical modification of neighbouring land in the face of the activity giving rise to emissions, for instance where an extension is built on to a house already affected by noise. If the extension might give rise to an allegation of nuisance against a pre-existing use, then the suggestion was made that the defendant might be able to argue that “coming to” the nuisance could be a defence. To date this suggested change has not been tested.

Gordon Wignall
23 May 2023