Odour to joy

The Court of Appeal recently ruled in a test case that residents had potential claims for nuisance arising out of the smell from a landfill site. Stephen Tromans QC and Catherine Dobson analyse the judgment.

The case of Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312 raises an important question of principle: namely the extent to which operating a landfill site under a regulatory permit provides a defence to claims in nuisance arising from that activity.

The Court of Appeal, allowing Barr’s appeal and dismissing Biffa’s cross-appeal, held that it is not a defence to a claim for nuisance to show that waste disposal activities giving rise to a nuisance were carried out in accordance with a landfill permit and without negligence. The grant of a permit does not confer a statutory immunity on the operator of a landfill site and does not alter the character of the land such that use of that land in accordance with its terms is a reasonable use of land. The common law of nuisance remains unaffected by the enactment of parallel systems of regulatory control governing waste disposal and the question whether use of a waste disposal site gives rise to a nuisance is governed by conventional principles of nuisance.

The case

The case concerns a landfill site in Ware, Hertfordshire, operated by Biffa Waste Services Ltd. Biffa operated the landfill site under a Waste Management permit granted to them by the Environment Agency under the Pollution Prevention and Control (England and Wales) Regulations 2000. The permit was subject to detailed conditions, which included measures to “control, minimise and monitor” odours. Odour complaints began in 2004, when Biffa began tipping pre-treated waste at cells close to the neighbouring Vicarage Estate. Complaints to the Environment Agency (EA) resulted in a prosecution of Biffa in 2005 for breach of its licence under the Environmental Protection Act 1980. Despite the successful prosecution, odour problems continued until 2009. In 2008 the EA issued a formal warning to Biffa in respect of further incidents although no prosecution followed. 152 households on the Vicarage Estate brought a group action in private nuisance against Biffa.

Biffa ran the case as an important test case for itself, and indeed the waste industry generally. Biffa argued that it should not be liable to neighbours for odour emissions coming from its site because the site had been operated without negligence and fully in accordance with the terms of the permit. Biffa’s principal argument was that operation of the site pursuant to the terms of a permit gave rise to a defence of statutory authority. In the alternative they argued that the operation of the site in accordance with the terms of the permit would found a defence of reasonable user of land.

At first instance, Coulson J dismissed the claims in nuisance. He rejected Biffa’s primary case that its activities were protected by statutory immunity. However, he accepted that the same result should be achieved by linking the statutory framework to his interpretation of reasonable user. In so doing, he accepted Biffa’s argument that conventional principles of nuisance had to be modified to “march in step with” EU and domestic environmental legislation regulating waste disposal. He found that the grant of a waste permit for tipping of pre-treated waste altered the character of the neighbourhood and gave an implied statutory licence for “a certain amount of odour emission” which was “inevitable” such that activities carried out in compliance with the detailed terms of the permit and without negligence “must equate to a reasonable user of land”.

Coulson J added that, even if he were wrong on the reasonableness issue, nearly all of the claims would have failed as they could not show that odour went beyond that which might be regarded as acceptable within the ordinary principle of “give and take”. Coulson J considered it necessary, in light of Kennaway v Thompson [1980] EWCA Civ 1, [1981] QB 88 and Watson v Croft Promo-Sport [2008] 3 All ER 1171, to set a “threshold” to distinguish between acceptable and unacceptable levels of odour. In the absence of any alternative suggested by the claimants the judge set the threshold of 52 odour complaint days each year.

This outcome at first instance was a cause for some rejoicing in the waste industry, which is increasingly faced with similar class actions for nuisance caused by its activities. However, the residents appealed to the Court of Appeal against the judge’s finding that Biffa’s user of land was reasonable; Biffa then cross-appealed against the judge’s rejection of the statutory authority defence.

The Court of Appeal allowed the appeal and dismissed the cross appeal. Carnwath LJ, with whom Arden and Patten LJJ agreed, held that the case was governed by “conventional principles of the law of nuisance, which are well-settled, and can be found in any of the leading textbooks”[36].

He summarised his reasoning as follows at [46]:

i) “Reasonable user” is at most a different way of describing old principles, not an excuse for reinventing them.

ii) The common law of nuisance has co- existed with statutory controls, albeit less sophisticated, since the 19th century. There is no principle that the common law should “march with” a statutory scheme covering a similar subject-matter. Short of express or implied statutory authority to commit a nuisance..., there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights.

iii) Further,

a) The 2003 permit was not “strategic” in nature, nor did it change the essential “character” of the neighbourhood, which had long include tipping. The only change was the introduction of a more offensive form of waste, producing a new type of smell emission.

b) The permit did not, and did not purport to, authorise the emission of such smells. Far from being anticipated and impliedly authorised, the problem was not covered by the original Waste Management Plan...

iv)There was no requirement for the claimants to allege or prove negligence or breach of condition. Even if compliance with a statutory permit is capable of being a relevant factor, it would be for the defendant to prove compliance, not the other way round.

v) There is no general rule requiring or justifying the setting of a threshold in nuisance cases. The two cases mentioned [Kennaway and Watson] do not support such a general rule, and in any event concerned noisy activities which could readily be limited to specific days (unlike smelly tipping at Westmill).

vi) By adopting such a threshold, the judge deprived at least some of the claimants of their right to have their individual cases assessed on their merits.

Carnwath LJ was particularly critical of Coulson J’s finding that grant of the permit had altered the character of the land. He cautioned against any analogy with authorities suggesting that the character of the locality might be changed by a planning permission, saying at [82]: “Whatever the scope of that exception, it has no relevance to this case. Contrary to the suggestion in the passage of the judgment quoted above, there was no evidence of a pre-determined “strategy” of the Environment Agency, let alone the planning authority, to transform this area into one for tipping pre- treated waste. Had any such strategy been proposed, and had the possible consequences been explained, one would have expected there to have been consultation followed by strong objections. In any event, there is no authority for extending such principles to a waste permit: granted by the Environment Agency, not the planning authority; and for purposes concerned, not with the balance of uses in the neighbourhood (which remained unchanged), but with the regulation of one particular activity within it.”

Carnwath LJ concluded on a note of caution, stating at [146]: “This is a sad illustration of what can happen when apparently unlimited resources, financial and intellectual, are thrown at an apparently simple dispute such as one about nuisance by escaping smells. The fundamental principles of law were settled by the end of the 19th century and have remained resilient and effective since then... [The judge] should not have allowed himself to be deflected from his ordinary task of assessing the evidence against the established legal principles and exercising his judgment on the facts of the case.”

The Court of Appeal will remit the matter to an appropriate forum to assess the individual claims against the legal framework set out in the Court of Appeal’s judgment.

Stephen Tromans QC and Catherine Dobson of 39 Essex Street appeared for the appellants, Mr Barr and other residents, together with John Bates, instructed by Hugh James.