Anslow & Ors v Norton Aluminium Ltd [28.09.12]

Complaints by residents are not a prerequisite to nuisance; substantial interference in comfortable and convenience enjoyment of land required.

Comment

The decision of the High Court confirms that while complaints by residents are a useful indicator of interference giving rise to a possible nuisance, they are not a prerequisite. For the moment the courts are not prepared to set a bench mark threshold to test for odours based on complaints. The Judiciary appears to prefer the more nebulous concept of substantial interference in the enjoyment of property.

The success of claimants in yet another odour group action raises the prospects of more of these types of claims in the future.

Background

The Claimants were 132 residents who lived in or around Norton Canes, Birmingham. The Defendant operated an aluminium foundry (the foundry) at Norton Canes. The foundry had been in operation at the site since 1952, prior to which the site had operated as a coal mine. The Defendant had been granted an environmental permit in January 1996 and since 1998 it had also operated the foundry as a sand casting business.

Throughout its operation the foundry has produced aluminium alloys by combining scraps and various metallic elements and melting them in a range of furnaces. The alloys that are produced are then cast into ingots before being stacked and prepared for sale ("smelting").

The Claimants alleged that the operation of the foundry had created excessive dust, noise and odour over an extended period of time and in particular, over the period of the claim from 2002 to 2010.

The foundry had been the subject of regular complaints over the years. In 2002, the local parish council had written to the Environmental Health Department describing many complaints of odours by residents. The Environmental Agency issued a prohibition notice in March 2004 to shut down the foundry, as a result of a number of failures by the Defendant, including failure to carry out an odour survey of the foundry. The prohibition notice was, however, lifted the next day. In 2008, Cannock Chase District Council wrote to the Defendant about significant justified odour complaints.

For its part the Defendant contended that given the character of the area, the use of the foundry had, at all material times, been that of a reasonable user. It also highlighted its investment in abatement technology as evidence that it had worked hard to minimise emissions of all kinds.

Decision

Sitting in the High Court, Judge McKenna held that in all cases but one of the 16 lead Claimants, there had been unreasonable interference with the Claimants’ enjoyment of property because of odour between 2003 and 2010.

In his review of legal principles, McKenna J paid careful attention to the recent Court of Appeal decision in Barr & Ors v Biffa Waste Services Ltd [2012] and noted that the decision had highlighted: that for Claimants to establish a nuisance, there is no requirement for the Court to set a precise "threshold" in terms of a number of days per year on which complaints of odour had been made.

McKenna J concluded that the key issue in determining nuisance was not how the odours affected some individuals in the locality but how it affected the Claimants. In reviewing the cases on legal nuisance, McKenna J considered that the Court of Appeal had felt the trial judge in Barr had been wrong to regard the making of complaints as critical to establishing the case in nuisance. In order to succeed in a nuisance claim, the Claimants had to demonstrate that interference had been substantial.

On the issue of damages, the Court advised that in a group litigation action, claimants had to take the 'rough with the smooth'’ and proposed an annual award in respect of the odours. McKenna J stated that compensation should be determined by the extent to which households were affected and advised that this could be done by reference to the odour plans drawn up by the experts which indicated which households were most affected by odours. He concluded that for those in the most affected area, the annual figure should be £2,000 and for those in the lowest band, the annual figure was £750.

The Court refused the Claimants’ request for an injunction on the basis that the foundry was now complying with the conditions attached to its licence.