Stephen Anslow and Others v Norton Aluminium Limited [2012] EWHC 2610 (QB)

We previously reported on the case of Barr and others v Biffa Waste Services Limited, in which the Court of Appeal held Biffa liable in nuisance to pay damages to local residents for unpleasant odours emitted from Biffa’s landfill site in Ware, Hertfordshire.

Since the ruling, another private nuisance case has been successfully brought by local residents, this time regarding emissions from an aluminium foundry in Norton Canes near Birmingham.

Background

Norton Aluminium Limited (Norton) has operated an aluminium foundry at the site since 1952. The processes carried out on site are smelting and casting.

A group of 132 residents (the Claimants) applied for a Group Litigation Order (GLO) to pursue claims in nuisance against Norton in respect of odour, noise, smoke and fumes, particulate matter and dust from the site alleging an unreasonable interference with the use and enjoyment of their land. The nuisance alleged was for the period between 2002 and 2010, after which Norton implemented effective abatement measures.

The GLO was made and the Claimants commenced proceedings against Norton for damages and an injunction to restrain the alleged nuisance.

The trial began in July 2011 but was adjourned on the fourth day to allow for settlement negotiations, which unfortunately failed.

Judgment

At the resumed trial in September 2012, His Honour Judge McKenna (HHJ McKenna) sitting as a High Court Judge ruled in favour of the Claimants finding that the foundry had caused nuisance in respect of odours but not noise, smoke and fumes, and particulate matter/dust. He held that the affected Claimants’ eye witness evidence concerning odours was "overwhelming" and that the Environment Agency (EA) had on a number of occasions identified Norton’s foundry as their source.

HHJ McKenna followed the Court of Appeal in Biffa rejecting the argument that the conventional settled principles on the law of nuisance are too simplistic and require reshaping.

He confirmed that the law of nuisance is "relatively straightforward" and that the principles that have been in place since the 19th century remain valid today.

Again, following Biffa he held that:

  • Statutory authority may be a defence to an action in nuisance, but only if statutory authority to commit a nuisance is express or necessarily implied, and that there is no principle justifying the use of the statutory environmental permitting regime to cut down private law rights.
  • There is no requirement for the Claimants to allege or prove negligence or breach of condition of a statutory permit in order for their claim in nuisance to succeed.

History of the site

HHJ McKenna thoroughly reviewed the history of Norton’s interaction with its regulators, the EA and latterly the Local Authority, which included numerous enforcement, variation and prohibition notices and warning letters in response to breaches of permit conditions, odours and fugitive releases.

Audits undertaken by the EA in 2004 and by the Local Authority in 2008 placed Norton in the lowest bands for environmental performance. The Audits criticised its poor understanding of the permit, inefficient abatement equipment, environmental training and lack of structure in its environmental management system.

HHJ McKenna stated:

"It does seem to me that the history does demonstrate a failure on the part of Norton to comply with the conditions of its permit and from time to time a failure to ensure that necessary abatement equipment worked efficiently and a failure to control fugitive emissions and a rather unorthodox approach to the development and installation of abatement equipment …"

He agreed with the Claimants allegations that Norton was:

"Essentially reactive and not proactive and was more often than not prevailed upon to take some abatement action …"

As regards odour, he felt that a significant number of the complaints appeared to involve a "significant degree of interference with the enjoyment of the complainant’s property".

Whereas for noise, he felt that the complaints were no more to be expected in a mixed use area and for dust, there was no evidence as to causation and only occasional limited breaches of the permitting requirements.

Accordingly, he found that Norton had caused nuisance in respect of its odour emissions only.

Damages calculations

On the evidence HHJ McKenna held the odour nuisance had not caused a loss of market value to the Claimants’ houses, or loss of income from property use/letting. The damages were therefore restricted to loss of amenity between 2002 and 2010.

He assessed it in the same way as would be done in personal injury claims involving loss of amenity. He held that as this was a low value GLO claim, the Claimants could not expect the same attention to detail required in high value claims. He therefore made an annual award with reference to different contour mapped zones showing the likely seriousness of the nuisance. These varied from £2,000 to £750 per annum.

The maximum award in the worst category for the full period of claim was £16,000, the minimum award was £750 in the least affected zone for one year only. Total damages for all 132 claimants is estimated at around £1.4 million.

HHJ McKenna refused to grant an injunction because there was no ongoing unreasonable interference with the use and enjoyment of their property. Further, taking into account Norton’s recent improvements including investment of over £1 million in the latest furnace and filtration equipment designed to minimise environmental impact, he held that there were no realistic grounds for the Claimants’ belief that without an injunction there would be a repetition of the nuisance.

Comment

The case of Norton Aluminium does not change the law on nuisance, but affirms well established principles regarding it. The case again rejects arguments that the law on private nuisance should be reshaped to reflect the statutory regime on environmental permitting.

At the time proceedings were commenced, Norton had invested significantly in abatement technology such that there was no ongoing nuisance. With the benefit of hindsight it might well have been more economical to have made the investment in 2002 thereby avoiding completely or minimising the claims for nuisance, the cost of their settlement, and the significant legal costs which must have been incurred in the litigation. Unconfirmed reports suggest the company may now be forced into administration.