Patricia Andrews & Ors v Kronospan Limited

Private nuisance requires a substantial interference with the ordinary use and enjoyment of land, assessed objectively by reference to an ordinary person in the claimant’s position. Occasional dust deposits on cars, garden furniture or external sills will not ordinarily suffice unless their amount, visibility, frequency and duration make the interference unacceptable. The defendant’s emissions must be shown to be the principal cause of the substantial interference where background dust forms part of the established pattern of uses. Regulatory compliance and best available techniques are relevant evidence, but do not determine liability. The claims failed because the evidence did not establish nuisance-level dust, odour or noise.

This was the first stage of group litigation brought by residents of Chirk against the operator of a large wood-products factory. Sixteen lead claimants sought damages for alleged dust, odour and noise nuisance during the six-year period from 18 July 2011 to 18 July 2017. The issues included substantial interference, causation, the character of the locality, ordinary user, prescription, compliance with environmental permits and damages. The court assessed extensive factual, documentary and expert evidence, including dust monitoring, dust characterisation and dispersion modelling.

1. Claims dismissed. The nature, extent, impact and frequency of the emissions did not amount to a substantial interference with the ordinary use of any lead claimant’s property. Odour and noise were materially below nuisance level, whether considered alone or together with dust.
2. Under Fearn v Tate Gallery, substantial interference is judged objectively by the standards of an ordinary person in the claimant’s position. Visible dust on a car, garden furniture or external sill may be capable of amounting to substantial interference, but only where its quantity, frequency and persistence make it objectively unacceptable. The court rejected the suggested level of interference on the evidence.
3. Where a property is already affected by substantial background dust from vegetation, roads and traffic, the defendant is not liable merely because its emissions make a material contribution to a cumulative level which would not otherwise be a nuisance. The defendant’s emissions must be the principal cause of the substantial interference.
4. The character of the locality was a mixed residential and industrial setting. The established pattern of uses included the factory’s activities as they existed by about 2000, but the court stated that, if nuisance had been established, ordinary user would not have been available because the substantial expansion between about 1992 and 1999 was not merely gradual or modest.
5. Environmental permits, planning permissions and compliance with BAT were relevant starting points but were not conclusive. The court nevertheless found that Kronospan had taken reasonable steps overall to keep emissions to a reasonable minimum. No prescriptive right was established, and the hypothetical public-nuisance claim would have failed because the impact was neither general nor widespread.
6. The provisional damages assessments were unnecessary to the result. They reflected loss of amenity to property, not personal sensibilities, and excluded separate recovery for co-occupiers.