Nuisance claims continue to grab headlines, with the UK courts considering what balance is to be struck between public and individual interests.
The Court of Appeal decisions in Barr v Biffa and Coventry Promotions v Laurence firmly closed the door on any reworking of the traditional nuisance principles.
Nevertheless, in a successful appeal by the defendant in Coventry Promotions, the Court of Appeal held pre-existing motor racing activities carried on for more than a decade and latterly with the activity being granted planning permission had become "part of the character of the neighbourhood".
In Barr v Biffa, Lord Justice Carnwath, who delivered the leading judgment, was not impressed by the reinterpretation of the law of nuisance that had been carried out by the High Court. In his view, the conventional principles on nuisance did not need to be updated.
Consistent with the views expressed in Coventry Promotions about the effect of planning permission, in Barr the Court of Appeal held that compliance with a statutory scheme did not provide a defence to a nuisance claim.
However, in Coventry Promotions the Court of Appeal accepted the presence of motor sports for 30 years had indeed changed the character of the locality. In contrast, in Barr, despite the presence of a waste plant in the vicinity for approximately 30 years, the Court of Appeal was not persuaded there had been a change in the character of the neighbourhood, distinguishing the old waste site and its activities from the new and "more offensive form of tipping". As is invariably the case, these situations are fact specific.
The Court of Appeal were equally dismissive of the High Court's attempts to set a threshold test but while the approach was a novel one, given these types of claim are on the increase, the High Court's attempt to set a more objective benchmark is to be welcomed.
The decision will provide a boost to those parties thinking of pursuing a nuisance claim. However, the risks for all sides are high. The costs in the Barr v Biffa case are estimated to be £6m ($9.3m) for both parties and provide a timely warning on costs for those considering litigation.
At the moment, permission is being sought to appeal against the Barr v Biffa decision to the Supreme Court and it will be interesting to see if the Supreme Court endorses the Court of Appeal's robust restatement of traditional principles.
This article was first published by Insurance Day on 14 June 2012.