Biffa Waste Services operated a dump for industrial and household waste, beginning in 2004, on land that had been zoned for the purpose since the 1980s. Biffa also had a permit for its operations from the environmental regulator, which specified that Biffa was to take appropriate measures to ensure that the site did not produce odours at levels likely to cause pollution, harm to human health or detriment to the environment. The site was located near a housing development, and complaints about bad smells were made from day 1 of Biffa’s operations, resulting in acrimonious exchanges and eventually litigation.

The trial judge held that Biffa’s permit had changed the character of the locality, which meant in this case that otherwise offensive activities ceased to constitute a nuisance. He also thought that the modern law of nuisance should be predicated on reasonable use: if the defendant has acted reasonably and not negligently, a nuisance claim should fail. The permit did not amount to statutory authority (and thus a defence to a nuisance claim), but informed the analysis of Biffa’s activities and whether they were reasonable. The English Court of Appeal took a different view, noting that good old 19th-century principles of the law of nuisance for the most part remain valid and didn’t need to be modified to accommodate modern statutory schemes. Statute and common co-exist, and the one does not displace the other. The residents’ appeal was allowed: Barr v Biffa Waste Services Ltd, [2012] EWCA Civ 312.

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