Barr & Ors v Biffa Waste Services Ltd

Compliance with an environmental permit does not itself make an interference with neighbouring land a reasonable use, nor does it displace private-law rights in nuisance. Unless statutory authority expressly or necessarily authorises the nuisance, the ordinary law continues to apply.

A claim for nuisance by odour does not require proof of negligence or breach of permit. The question is whether there has been a substantial interference with the ordinary comfort and convenience of living, assessed in all the circumstances, including the locality and duration. There is no general basis for imposing an arbitrary numerical threshold for intermittent and unpredictable odours. Each claimant’s evidence must be assessed on its merits.

Residents of the Vicarage Estate brought a group action in private nuisance against the operator of a nearby landfill site. They alleged that the tipping of pre-treated waste caused recurring offensive odours between 2004 and 2009.

Coulson J dismissed all claims. He held that compliance with the waste permit, coupled with the absence of pleaded negligence or permit breaches, meant that the use of the site was reasonable. Alternatively, he set a threshold of 52 odour-complaint days per year.

The residents appealed. The operator cross-appealed on statutory authority. The central issue was whether the regulatory regime and permit altered ordinary private-nuisance principles.

1. Appeal allowed; cross-appeal dismissed. Carnwath LJ, with whom Patten and Arden LJJ agreed, held that the judge had materially misstated the law of private nuisance. The claims could not be rejected on the basis that the operator was not alleged to have been negligent or in breach of its permit.

2. The conventional test remained applicable. Odour is actionable where it causes a real and sufficiently serious interference with the ordinary comfort and enjoyment of land, judged objectively and in the context of the locality. The duration and frequency of interference are relevant, but neither is decisive. A defendant may be liable despite exercising reasonable care.

3. The environmental legislation and permit did not require the common law to “march in step” with the regulatory scheme. Compliance with a permit may be relevant evidence, but it is not a complete defence to private nuisance. The statutory-authority defence was unavailable because no statute expressly or necessarily authorised the escape of nuisance-level odours. The permit imposed controls; it did not cut down residents’ common-law rights.

4. The 2003 waste permit neither changed the character of the neighbourhood nor licensed the new, more offensive odours from pre-treated waste. Public utility was not a defence.

5. The judge was wrong to impose a threshold of 52 odour-complaint days annually. The noise cases relied on concerned prospective control of organised activities and did not justify an arbitrary numerical threshold for transient, unpredictable odours. Although contemporaneous complaints were important evidence, their absence was not conclusive.

6. The individual claims required reassessment under the correct principles. The case was to be remitted to an appropriate forum, with consequential matters and the form of order to be addressed after further submissions.

• Court of Appeal (Civil Division): Allowed the residents’ appeal and dismissed the operator’s cross-appeal: [2012] EWCA Civ 312.
• Technology and Construction Court: Coulson J dismissed the group claims in nuisance on 19 April 2011.