Barr & Ors v Biffa Waste Services Ltd (No 3)

Environmental legislation and a detailed permit may materially shape common-law nuisance. Where a landfill operator uses land in accordance with its permit, applies the best available techniques and is not alleged to be negligent, that use may constitute reasonable user and defeat a claim based on the permitted activities alone. The operator does not thereby obtain a general defence of statutory authority. Odour nuisance remains a question of fact and degree. The court should identify a practical threshold, reflecting reasonable user and give and take, before deciding whether the threshold has been exceeded. Planning permission or regulatory approval does not generally authorise nuisance, but a detailed environmental permit may alter the character of the locality and define the legally acceptable level of emissions.

152 households near Biffa’s Westmill 2 landfill site brought claims in private nuisance concerning odour from pre-treated waste. The trial concerned 30 lead claimants. The claimants abandoned negligence allegations and did not rely on alleged breaches of the permit. Biffa relied on statutory authority and reasonable user, based on the environmental legislation and detailed permit governing the site.

The principal questions were whether Biffa had a defence of statutory authority; whether operation in accordance with the permit was reasonable user; and, if nuisance without negligence was legally possible, whether the evidence established an actionable level of odour.

1. Statutory authority. Biffa did not have a complete defence of statutory authority. It was a commercial operator with no statutory duty to provide waste-disposal services and no statutory powers comparable to those considered in Marcic v Thames Water Utilities Ltd and Dobson v Thames Water Utilities Ltd. The regulatory regime and permit therefore did not themselves confer immunity.
2. Reasonable user. The environmental legislation and permit were nevertheless directly relevant to the common-law nuisance claim. The permit expressly contemplated that some odour would be inevitable and required its prevention or reduction by best available techniques. It would be incoherent for conduct permitted by the detailed regime, and performed without negligence, to create liability under general nuisance principles. Operation in accordance with the permit was therefore reasonable user of the land.
3. The permit also affected the character of the locality. Westmill and its surroundings had a mixed history of quarrying, industry, agriculture, landfill and residential development. The permit confirmed that the area remained mixed-use and suitable for landfill. It did not excuse negligent operation or breach of permit conditions.
4. Alternative factual analysis. If nuisance without negligence had been legally available, the court would have required a threshold. On the evidence, an average of one odour complaint day per week, or 52 days per year, was adopted as the practical starting point. Twenty-three claimants had insufficient contemporaneous records. Only Mr Hobbs and Mr Clark exceeded the threshold, and only in 2005.
5. The pleaded claims were confined to nuisance arising from permitted activities, without negligence or reliance on permit breaches. They therefore failed as a matter of law. The 30 lead claims were dismissed. Had liability been established, general damages would have been assessed at £1,000 per household for each year in which the threshold was exceeded.