19 April 2012
The tort of private nuisance upholds the right of an individual not to have his or her enjoyment of land interfered with by a neighbour through irritants such as noise. But what if a party has obtained planning permission or a statutory permit under which they can have the right to carry out a potentially infringing activity?
The rule is that statutory frameworks such as planning permissions should not encroach upon private rights. However, such permissions can be held to change the nature of a neighbourhood such that what might otherwise be an unlawful nuisance may in fact be reasonable.
The case of Barr & Others v Biffa Waste Services Limited at first instance challenged this assumption by implying that an environmental permit could sanction a nuisance. However, the Court of Appeal held that this conclusion was wrong in law and overturned the ruling. Background
The case of Barr v Biffa was collectively brought against Biffa Waste Services Limited (the defendant) by 152 households (together, the claimants) who occupied private residences in the Vicarage Estate in Ware, Hertfordshire. Nearby, the defendant carried out odorous waste tipping activities.
Site tipping had begun in 1984 further to an environmental permit granted in 1980. In 2003, the Environmental Agency (EA) granted a second permit allowing tipping of ‘pre-treated waste’ (later found to be more odorous than non-treated waste). This permit was conditional on compliance with various measures.
Shortly after tipping of the ‘pre-treated waste’ began in 2005, the residents started to complain. The odours (and complaints) continued intermittently until October 2009. In the interim period, the EA secured convictions against the defendant for breaches of the permit vis-à-vis odour production and issued a formal warning.
Proceedings commenced in 2009. ARGUMENT
The claimants contended that the odours emitted by the defendant’s waste management activities constituted a nuisance. The smells were of a continuing ‘state of affairs’. Their common law rights in nuisance could not be excluded by environmental legislation and an uncommon use of land such as waste tipping should not benefit from a principle of reasonableness or ‘give and take’.
The defendant denied the nuisance claim. This was not a simple case and the principles of the law of nuisance needed to be modified to ‘fit the modern world’, in particular the system of statutory permissions. A complete defence of statutory immunity should apply, and thus the existence of the 2003 permit should negate any common law claim. In the alternative, the defendants contended that they could only be liable if the claimants could prove negligence, which the claimants had not alleged. INITIAL HEARING
At trial, the judge dismissed the claimants’ action on the principle of ‘reasonable user’: if use of the land was reasonable and there was no negligence, a nuisance claim would fail. Considering the 2003 permit, the judge ruled that the common law must “march in step with” environmental legislation. Although the judge disagreed that the permit granted the defendant statutory immunity, the defendant’s use of the property should be deemed ‘reasonable’ if it complied with its terms.
The judge held that the 2003 permit had changed the character of the neighbourhood because it was a ‘strategic’ permit, being the first permit issued for pre-treated waste. The defendants were impliedly authorised to produce a certain level of odour, which the judge set at 52 complaints a year and which only two of the individual claimants’ cases met.
The claimants appealed. The defendant cross-appealed against the rejection of the statutory immunity defence.
The Court of Appeal unanimously ruled in favour of the claimants, reversing the first instance decision. The trial judge had erred in law in dismissing the claimants case as follows.
The ‘reasonable user’ principle that the judge had relied on did not change the fundamental principles of nuisance. In the absence of express or implied statutory authority, a statutory framework should not infringe upon individual’s rights.
Furthermore, the EA permit was not ‘strategic’ and had not changed the neighbourhood character; it had introduced a new (more odorous) waste. Nor could the permit constitute an implied statutory authority to authorise the odours, which appeared to have not been anticipated by the defendant and the EA.
Finally, the trial judge had wrongly interpreted the law as justifying the setting of a threshold for the level of smells emitted, for which there is no general rule in English law.
Beverley Vara is a partner and head of real estate litigation at solicitors Allen & Overy LLP
- Statutory authority can be a defence to an action in nuisance, but only if the authority expressly or impliedly permits the nuisance
- Statutory permits can, depending on the circumstances, change the nature of an area so that an otherwise unlawful activity is rendered reasonable and therefore lawful.