• On 19 March 2012 the Court of Appeal gave judgement in the case of Barr and others v Biffa Waste Services Ltd [2012] EWCA Civ 312. The Court of Appeal overturned an earlier controversial ruling in the High Court which had made significant changes to the way in which private law nuisance actions were to be considered.

    The claim began in 2009 when a group of local resident commenced proceedings against Biffa Waste Services Ltd for nuisance as a result of odour being emitted from one of its landfill sites. Biffa had already been successfully prosecuted by the Environment Agency for breaches of conditions in its operating permit limiting odour emissions.

    The High Court decision

    Biffa put forward a number of arguments before the Court. In particular, they argued the following points:

    • Firstly, that because they were operating the site in accordance with a permit granted by the Environment Agency they had statutory authority for the activity which was causing the odour and, as such, could not be liable in nuisance.
    • Secondly, their use of the land was reasonable because it had been authorised by the Environment Agency through the grant of their operating permit and that, provided they complied with that permit and were not negligent, no claim for nuisance could arise from the lawful landfilling activities.
    • Finally, the level of odour was not sufficient to constitute an actionable claim in nuisance.

    The claimants sought to rely upon the traditional approach to nuisance actions, namely that a claim will arise where a person unduly interferes with the comfortable and convenient enjoyment of his neighbour’s land. They argued that their claim was not excluded by the fact that Biffa was operating the site in accordance with their operating permit.

    The High Court found in favour of Biffa deciding that in the absence of negligence or a breach of its operating permit it should not be liable in nuisance for the inevitable consequences of those actions. The decision was seen by many as a radical change in approach of the Courts to nuisance claims and as a green light to operators of waste facilities to continue causing odour nuisance.

    There were also concerns that the principle could be extended to any form of nuisance, such as noise or smoke, which was the inevitable consequence of an activity authorised by an environmental permit.

    The approach of the Court of Appeal

    The case was appealed to the Court of Appeal, which overturned the High Court’s decision. The Court of Appeal reapplied the traditional approach, finding that it was not a defence to a nuisance claim to show that the activities causing the nuisance, in this case odour, were authorised by the operating permit.

    The Court made it clear that when considering private nuisance claims there is no absolute standard and it is a question of degree whether the interference is sufficiently serious to constitute a nuisance. Account should be taken of the character of the area when assessing whether a use of land is reasonable and that character can change as a result of strategic planning decisions. However, the grant of an environmental permit for a particular use does not have the same effect on what is and is not to be considered reasonable user of land in a particular area.

    What this means in practice

    The High Court judgement had given considerable comfort to the waste management industry and boosted the ability of site operators to resist claims in nuisance. The Court of Appeal decision means that operators causing nuisance as a result of noise or smells from their site remain published to claims even where they are operating in accordance with their operating permit.

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