Nuisance has long existed as a means of allowing private landowners to claim against those who unlawfully interfere with the use and enjoyment of that person’s land.  The most common examples of actionable nuisances that become the subject matters of claims are noise, smell and emissions.

A recent Court of Appeal decision concerning smells has clarified that a private individual’s claim in nuisance will not necessarily be defeated by any statutory authority given to the creator of the nuisance as long an actionable nuisance can be proven according to the usual common law principles.

In Barr and Others -v- Biffa Waste Services Limited, a group of local residents brought a claim in nuisance against Biffa for smells emanating from a waste disposal and landfill site.  The smell was described by one resident as “… like a cross between a dustbin lorry and rotten fruit and veg.  It was a very bad smell, almost like you hadn’t emptied your bin in months.”

In the High Court, the Judge found in favour of Biffa supporting their argument that it was unfair and unrealistic to find them liable to the residents in nuisance where they had complied with all their obligations under environmental legislation and also with the detailed provisions of their permit which allowed them to dispose of waste at the site.

The residents appealed and the Court of Appeal overturned the Judge’s decision. The judgment confirmed that the principles of nuisance are well settled. Any claim requires an assessment of whether there has been real interference with the comfort or convenience of living according to the standards of the average man with account being taken of the character of the neighbourhood and the duration of the interference.  More importantly, it confirmed that authority given to a person or entity by legislation could only amount to a defence against nuisance to the extent that the legislation either expressly allowed that person to commit a nuisance or that this could be implied.  For it to be implied, it would have to be made very clear in the legislation that the user of the land was authorised in such a way that would inevitably involve nuisance.  Short of such authority, there is no basis for using a statutory scheme to defeat private law rights.

The case does not, of course, mean that a private landowner will automatically defeat any person authorised by statute to carry out a certain activity which the landowner considers may constitute nuisance, as the Court of Appeal was keen to point out that each decision on private nuisance was to be decided by reference to all the circumstances of the case and the existence of an actionable nuisance will need to proven. However, it is evidence that the Court will seek to uphold the private law rights of individuals and that these remain fundamental in the modern legal system.