Simon Colvin on a ruling that suggests firms at risk of nuisance claims may be able to avoid injunctions
Nuisance is something that comes up frequently in relation to manufacturing and waste operations, as well as development activities.
In a legal context, nuisance means the “unlawful interference with another’s rights”, whether that is in relation to property or someone else’s health, safety or comfort. If the actions of another party amount to a nuisance, the affected individual might be able to seek damages and/or an injunction through the courts to prevent the alleged nuisance.
In February, the Supreme Court issued its judgment in the long-running case of Coventry v Lawrence ([2014] UKSC 13). The case concerned the impact of noise from a speedway and motor-racing track on a nearby residential property. The court confirmed that the activities at the track did amount to a nuisance and at the same time clarified a number of grey areas in relation to the law.
Some of these issues were also touched on in the case of Biffa v Barr in 2012 (see below). The case concerned whether odours from a landfill site amounted to a nuisance and whether the existence of an environmental permit provided a defence to a claim of nuisance. The Court of Appeal decided that it did not. In Coventry the court considered a number of important questions, two of which are particularly relevant for environment practitioners:
- Does planning permission provide a defence to a nuisance claim?
- When is an injunction available to someone bringing a nuisance claim?
Planning permission
Many operational sites will have detailed planning permissions that control the activity being undertaken. Often, such sites will also have environmental permits that run in parallel to the planning permission, and govern emissions to air, water and other possible impacts on the environment. The Biffa case confirmed that, just because an activity or an impact is permitted, the permit does not, in itself, provide a defence to a nuisance claim.
Coventry looked at whether planning permission might provide a defence to a nuisance claim. The answer from the Supreme Court is that it does not: planning permission might be relevant in terms of the extent of the nuisance and the remedy available to complainants, but it does not provide a defence.
Availability of injunctions
Understandably, the operators of industrial or waste sites are wary of the threat of an injunction if their activities give rise to the threat of a nuisance claim. While regulators might be prepared to allow an operator some time and space to get a site’s operations back into compliance with the planning permission and/or environmental permit, those neighbouring the site might not be so accommodating.
Historically, those affected by nuisance were said to have a prima facie right to an injunction to prevent the nuisance continuing, in addition to damages for the past impact of the nuisance. This has concerned operators because an injunction has the potential have a significant impact on commercial activities. Coventry makes it clear that injunctions should not be the default approach of the courts; they should be much more flexible in their approach to the appropriate remedy – such as awarding damages for future breaches instead of an injunction.
No green light
The Coventry case should not, however, be interpreted as a green light for operators to cause whatever level of nuisance they wish on the basis they will be able to pay off those affected. When deciding on the appropriate remedy, the courts will consider the cause of the nuisance and the steps taken by an operator to address the problems.
If an operator is proactively pursuing solutions to the cause of the nuisance and engaging with those that have been affected, the courts are more likely to consider that damages are appropriate redress for future breaches. On the other hand, if an operator appears to be doing nothing on the basis that damages will be the remedy, and they can afford to pay those affected, the courts are more likely to grant an injunction.
Practitioners need to consider the approach of the courts to injunctions when advising operators on how to deal with non-compliance with permits and planning permissions, as well as the likelihood and outcome of nuisance claims. A proactive approach by the operator to finding a solution to the cause of the nuisance and in engaging those affected is likely to help persuade the courts not to grant an injunction.
The Biffa case
In Barr & others v Biffa Waste Services Ltd [2012] EWCA Civ 312, the Court of Appeal reversed a landmark ruling by the High Court that compliance with an environmental permit could defeat a nuisance claim.
Thirty residents brought a claim against Biffa for smells arising from the operation of a nearby landfill site. Biffa held a waste management permit for tipping pre-treated waste, subject to conditions that included taking measures to “control, minimise and monitor” odours.
Despite the High Court finding in favour of Biffa, the Court of Appeal ruled that the permit did not authorise the emission of new smells and that there was no requirement for claimants to prove breach of the permit. For more information on the case visit: environmentalistonline.com/Biffa
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