Barr & Ors v Biffa Waste Services Ltd [19.03.12]

Court of Appeal holds that compliance with environmental permit is no defence to nuisance claim. Nuisance is traditionally defined as an unreasonable interference with a neighbour’s comfortable and convenient enjoyment of their land. There must, therefore, be a real interference, taking location into consideration. In Thesiger LJ’s words, “What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. [Sturges v Bridgman (1879)]

In this case, 152 individuals sought damages for odorous emissions arising from a waste-tipping site in Hertfordshire operated by Biffa under a 2003 waste management permit. Biffa sought to argue, amongst other things, that the operation of the site pursuant to the terms of a permit gave rise to a defence of statutory authority.

At first instance, the Judge held that the correct test was whether Biffa was a “reasonable user” and the nuisance claim failed on that basis because Biffa had complied with its permit and had not acted negligently. He also noted that, in any event, a threshold of at least one complaint per week concerning the odorous smells had not been satisfied. The Claimants appealed.

Decision

At the heart of this dispute was the clash between the common law right to bring a claim in nuisance and the extent to which operating a landfill site under a permit provides a defence to such an action.

The Court of Appeal allowed the Claimants’ appeal (and dismissed Biffa’s cross-appeal), holding that:

  1. The “reasonable user” test was not the appropriate test. The conventional principles of the law of nuisance still applied.
  2. Whilst an activity that contravened a permit was unlikely to be reasonable, the converse did not necessarily follow.
  3. The permit did not authorise new types of smell emissions (which arguably was the case as Biffa deposited pre-treated waste which was more odorous) and it was for the Defendant to prove it had complied with the permit.
  4. “Short of express or implied statutory authority to commit a nuisance ... there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights.”
  5. The approach of setting a threshold number of claims per week for evaluating nuisance in odour nuisance cases was incorrect, and deprived some of the claimants of their right to have their claim assessed on its merits.

Comment

This is a very significant decision for the waste industry and their insurers. In effect, they cannot now rely simply on showing that they acted in accordance with their permits, as a defence to a nuisance claim. Although it may still be good evidence that they acted reasonably, the Court of Appeal has made it abundantly clear that a claim for nuisance must involve assessing the evidence against established common law legal principles.

Of equal significance, is that the Court of Appeal rejected the Judge’s attempt to impose an arbitrary threshold on what constitutes a nuisance, and what level of complaint would breach it. There was no general principle of law that supported such an imposition.

This case is likely to be referred to mediation or returned to the High Court for assessment of the individual claims against the principles set down by the Court of Appeal. That is, if Biffa does not seek leave to appeal to the Supreme Court. Definitely one to watch.