Landfill – Nuisance — Claimant householders seeking damages in nuisance for odour from waste disposal site operated by defendant company – Whether defendant entitled to rely on defence of statutory authority and reasonable user – Whether claimants having valid claim solely in nuisance — Claim dismissed
The defendant waste-disposal company operated a landfill site located near a housing estate in a mixed use neighbourhood. Some of the householders claimed damages in nuisance against the defendant in respect of odour nuisance over a five-year period. Before the housing estate had been built, part of the site had been used as a gravel quarry, which subsequently became a waste tip, although those operations had ceased before the estate had been constructed.
Under section 33 of the Environmental Act 1990, the use of land for waste disposal constituted a criminal activity, unless a permit had been issued by the Environment Agency (EA) under regulation 10 of the Pollution Prevention and Control (England and Wales) Regulations 2000 (SI 2000/1973) (enacted pursuant to the Integrated Pollution Prevention and Control Directive). The defendant had an appropriate licence.
The claimants did not allege negligence or of breach of the waste-management permit. However they argued, inter alia, that having regard to the character of the neighbourhood, the legislation and the terms of the permit were irrelevant to their claim in nuisance so that the use of the defendant’s site for landfill was automatically an unreasonable user of the land.
The defendant’s principal defence was one of statutory authority, that is, in the light of the relevant legislation and the terms of the permit granted to it by the EA, it could not in law be liable to the claimants in nuisance; alternatively, its user of the land was reasonable. Further, the defendant would be liable in nuisance only if the nuisance had arisen from its negligence. In the absence of an allegation of negligence, or failure to use the best available techniques and due diligence, no claim in nuisance could arise out of its lawful operation of landfill activities in accordance with the permit.
Issues arose : (i) whether the defendant could rely on a defence of statutory authority; (ii) if not, whether the use of the site for landfill was a reasonable user of the land; (iii) the appropriate point at which the odour became a nuisance; and (iv) the level of general damages payable.
Held: The claim was dismissed.
(1) In deciding whether a service provider was entitled to the defence of statutory authority, it was first necessary to identify the nature and the scope of the particular obligations imposed on it and to consider the balance between its commercial imperatives and its obligations to the wider public: Marcic v Thames Water Utilities Ltd [2003] UKHL 66; [2004] 2 AC 42 and Dobson v Thames Water Utilities Ltd [2007] EWHC 2021 (TCC); [2008] 2 All ER 362 considered.
In the instant case, the defendant was under no statutory obligations. It had been operating on a voluntary basis and had not been providing services to the wider public. Provided that it complied with the terms of its permit, it could follow the dictates of its own commercial interests and had no further obligations to the public. More fundamentally, it had no statutory duties since all the obligations under the relevant legislation were on the UK government as an EU member state. The defendant had been providing a public service pursuant to permission issued under a supervisory regulatory regime that covered its voluntary operation of the landfill facility. Accordingly, the defendant could not use the defence of statutory authority.
(2) As regards reasonable user of the site, as a matter of common sense an activity should not be permitted by one set of specific rules (derived from detailed legislation), while at the same time giving rise to a liability to a third party by reference to the more general principles to be derived from the common law. If an operator used land to tip waste in accordance with a valid permit, that permit provided a complete defence to any criminal charges. Similarly, if an entity had used the best practicable means to avoid a statutory nuisance, it could not have been negligent and would not be liable for a claim in statutory nuisance. The position was no different at common law: Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264 and Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61; [2004] 2 AC 1 applied.
The claimants’ contention, that the defendant’s use of the land as a landfill site was automatically unreasonable, was unrealistic, contrary to authority and would give rise to an uncertain and unworkable position in law. The character of the neighbourhood was mixed use and essentially remained so after the housing estate had been built. Although that finding did not relieve the defendant of the obligation to carry out the activities on site properly, or any liability in nuisance if it failed to use the best available techniques and due diligence, in the context of the mixed character of the neighbourhood the carrying out of the permitted activities under a detailed permit was not, of itself, an unreasonable user.
Accordingly, as a matter of law and in the absence of a case based on breaches of the permit, a simple claim in nuisance was bound to fail. The carrying out of permitted activities of waste disposal, performed in accordance with the terms of the permit and without negligence, amounted to a reasonable user of land. Thus, although claims in nuisance involving allegations of negligence against the defendant would have been open to the claimants, claims in nuisance alone were not: Cambridge Water and Transco applied.
(3) The need for a threshold in an odour nuisance case was imperative, not only because of the need to consider what might be reasonable user in all the circumstances but also because such cases were particularly susceptible to subjective interpretation and were impossible to evaluate by reference to objective or scientific measurements. In the absence of a cogent argument from the claimants as to the appropriate threshold, an analysis of that threshold, identifying a number of days on which inconvenience had to be accepted, averaged out over a year, was a sensible and fair approach.
(4) Had the defendant been liable, it would have been appropriate to assess general damages on an annual basis. The correct figure would have been £1,000 pa per household for each year in which the threshold was exceeded.
Nigel Cooksley QC and John Bates (instructed by Hugh James, of Cardiff) appeared for the claimants; Ian Croxford QC and Thomas de La Mare (instructed by Nabarro LLP) appeared for the defendant.
Eileen O’Grady, barrister
