The English High Court has issued an important judgement on whether compliance with environmental permits can constitute a defence to a claim of nuisance.

In Barr v Biffa Waste Services Ltd the High Court in England held that it is possible in certain circumstances for a waste operator's compliance with a permit to be a defence against neighbours who claim that odours produced by the operator's facility constitute an unacceptable nuisance to the use and enjoyment of their properties.

The High Court explained that neighbours have the right to take action where odours and other forms of nuisance are more than can reasonably be tolerated. This right exists as a matter of common (that is, non-statutory) law: anyone can bring such a claim. However, the Court contrasted this common law right with the detailed statutory law on environmental permits. The Court held that because the latter represented the reasoned judgement of Parliament, and because the permit demonstrated that the operator's actions were reasonable, the operator was not causing a nuisance in the circumstances.

The case curbs the circumstances in which a nuisance claim can be made: there must be evidence to suggest that a waste operator's activities go beyond reasonable use of their land, or there must be evidence of negligence or a breach of a permit. The waste management licensing regime is similar in Scotland as it is in England and Wales, and the law of nuisance is also equally applicable. It is therefore anticipated that, should a similar matter arise in the Scottish courts, the case will certainly be considered.