In Barr v Biffa Waste Services Ltd (No 3) [2011] EWHC 1003 (TCC) the court determined 30 pre-selected claims in a group action brought by 152 households alleging nuisance arising as a result of odour from pre-treated waste at a landfill site belonging to the defendant. Both planning permission and an environmental permit had been granted to the defendant. There were no allegations of negligence on the defendant’s part or of failure to comply with the permit. In a 93-page judgment, the judge concluded that there was no nuisance. However, in a comparatively short section of the judgement, he helpfully commented upon the relationship between the grant of planning permission and a claim in the tort of nuisance. Three cases in particular are worthy of mention.
In Gillingham Borough Council v Port of Medway [1992] the allegations of nuisance centred upon noise and vibration arising from heavy vehicular traffic using residential roads leading to a busy commercial port for which planning permission had been granted. The High Court held that, where planning permission had been granted for development which would alter the character of a neighbourhood, then the question of nuisance thereafter fell to be decided by reference to the neighbourhood with that development and not as it was previously. The action failed.
However, in Wheeler v J J Saunders Ltd [1995] 1 PLR 55, the Court of Appeal made it clear that the grant of planning permission cannot be treated as the equivalent of statutory authority, eg, as in the case where development has been authorised by a private Act of Parliament. There, the nuisance complained of was caused by odour arsing from a range of pigpens. The appeal judges stated that the grant of planning permission was not a licence to commit nuisance, and in the present case did not defeat the claim in nuisance that had been brought.
Finally, there is Hunter v Canary Wharf Ltd [1996] 1 All ER 482 where the nuisance alleged was loss of TV reception resulting from the building of a tower under an enterprise zone scheme. The Court of Appeal held that a local planning authority has no jurisdiction to authorise a nuisance save insofar, if at all, it has statutory power to change the character of a neighbourhood. This principle was subsequently confirmed, obiter, by two members of the House of Lords on the further appeal.
John Martin is a freelance writer
