Colleen Theron and Deirdre Lyons, from LexisPSL, explain the Court of Appeal's decision to refuse Biffa's defence of holding an environmental permit negated nuisance claims
The Court of Appeal has handed down its judgment in the test case of Barr & others v Biffa Waste Services Ltd [2012] EWCA Civ 312, reversing the landmark judgment last year by the High Court that compliance with an environmental permit could defeat a claim in nuisance.
Prior to this judgment the law on nuisance had been in a state of flux pending the appeal. The facts of the case involve a landfill site that is situated close to a housing estate – the Vicarage estate, in Ware, Hertfordshire.
Thirty claimants, including Barr, brought a nuisance claim against Biffa – the operators of the landfill site – for smells arising from the operation.
Biffa had been granted a waste-management permit for tipping “pre-treated waste” in 2004. The permit was subject to detailed conditions that included requirements that Biffa comply with a defined working plan and measures to “control, minimise and monitor” odours.
Complaints began within one week of tipping operations beginning in 2004 and problems of smell continued despite efforts by Biffa, encouraged by the Environment Agency, to find a solution to the problem.
In June 2005, the agency prosecuted Biffa for breaches of permit conditions, which resulted in convictions in October 2007 on four charges. Despite the prosecution, complaints continued, culminating in a nuisance court case and the High Court finding in favour of Biffa.
Lord Carnwath stated in his decision on appeal that the case was governed by the conventional principles of the law of nuisance. He found that the common law of nuisance has coexisted with statutory controls since the 19th century and, short of an express or implied statutory authority to commit a nuisance, there is no basis for using a statutory scheme to cut down private law rights.
The permit did not authorise the emission of the new type of emission smells. The court also stated that there was no requirement for the claimants to allege or prove negligence or breach of condition; it would be for Biffa to prove compliance. The common law rights and duties remain unaffected.
The appeal succeeded, remitting the case to an appropriate forum to complete the assessment.
Companies’ activities that could lead to complaints are still vulnerable to nuisance claims whether or not they are in compliance with their permits.
The practical effect of this is that if they try to determine their potential liability they will have to assess many different factors, such as the character of the neighbourhood and the timing, frequency, duration and intensity of emissions. Lawyers carrying out due diligence enquiries for their clients should bear these issues in mind.
