Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312 (19 March 2012)

Residents near a landfill sued the operator for odorous emissions. The operator argued its statutory permit provided a defence by changing the neighbourhood's character. The Court of Appeal rejected this, clarifying that a permit does not authorise a common law nuisance.

Facts

The claimants, a group of residents of a housing estate in Hertfordshire, brought a claim in private nuisance against Biffa Waste Services Ltd, the operator of the nearby Westmill landfill site. The claim concerned significant and offensive odours emanating from the site between 2004 and 2009. Biffa operated the site under a detailed environmental permit issued in accordance with the Pollution Prevention and Control (England and Wales) Regulations 2000. The source of the intense odour was the tipping of ‘pre-treated’ waste, which was not in its inert state as expected. The trial judge dismissed the residents’ claims, holding that no actionable nuisance had been established, in part by taking into account the nature of the permitted operations when assessing the character of the locality.

Issues

The Court of Appeal considered two primary legal issues:

1. The correct common law approach to nuisance where the defendant’s activities are conducted under a statutory environmental permit.
2. The relevance of the defendant’s permitted activities in assessing the ‘character of the locality’ for the purposes of determining whether a nuisance exists. Specifically, can a defendant rely on their own activities to argue that the local character has changed, thereby setting a new, lower standard of amenity?

Judgment

The Court of Appeal, in a leading judgment by Carnwath LJ, allowed the appeal and overturned the High Court’s decision.

The Test for Nuisance

Carnwath LJ reaffirmed the classic objective test for nuisance by smell, citing Aldred’s Case and Walter v Selfe (1851), which defines nuisance as:

“an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people.”

He held that the trial judge had erred by focusing on a ‘threshold of offensiveness’ rather than on the established principle of material interference with ordinary comfort.

Character of the Neighbourhood

The central part of the judgment dismantled the argument that the environmental permit and the landfill’s operations had become part of the character of the neighbourhood. Carnwath LJ heavily criticised the reasoning in Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343, which suggested a planning permission could alter a locality’s character. He stated that the activities causing the alleged nuisance cannot also be used to define the standard of what is acceptable in that locality. He concluded:

“a defendant cannot be allowed to be the judge in his own cause, by relying on his own authorised activities as setting the standard by which those activities are to be judged.”

This reasoning was supported by reference to the then-recent Supreme Court decision in Coventry v Lawrence, which affirmed that the grant of planning permission does not in itself remove a private citizen’s right to sue in nuisance.

The Role of the Statutory Permit

The court held that the existence of an environmental permit does not legitimise a nuisance or provide a defence to a private nuisance claim. While compliance with a permit may be relevant to the question of whether the defendant is making a ‘reasonable use’ of their land, it does not override common law rights. Carnwath LJ noted the problematic implications of the defendant’s argument:

“It would be a surprising outcome if a statutory scheme designed to protect the environment through a system of permits, not only failed to achieve that objective, but also removed the right of private citizens to complain of the resulting nuisance at common law.”

Implications

This decision is significant for clarifying the relationship between statutory regulation and the common law of private nuisance. It confirmed that regulatory permits, such as those for waste disposal, do not give operators immunity from nuisance claims. The judgment effectively curtails the ‘Gillingham defence’ by establishing that a defendant cannot use its own permitted activity to argue that the character of the area has been changed in its favour. It strongly reinforces the rights of individuals to enjoy their land without material interference, even in areas with significant industrial or commercial activity.

Verdict: Appeal allowed. The case was remitted to the Technology and Construction Court for determination of which claimants had established a claim and the quantum of any damages.

Source: Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312 (19 March 2012)