The Court of Appeal in Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312; [2012] PLSCS 67 has clarified the interrelationship in odour nuisance claims between the environmental permitting regime and the law of nuisance. The case involved a group action brought by the appellant homeowners alleging nuisance arising as a result of odour from pre-treated waste at a landfill site belonging to the respondent. Both planning permission and an environmental permit had been granted to the respondent. There were no allegations of negligence on the respondent’s part or of failure to comply with the permit.
The first instance judge held – in this regard – that the respondent’s user must be deemed to be reasonable, if it complied with the terms of the environmental permit. As such it would then not give rise to liability in nuisance in the absence of negligence. In the context of the modern system of regulatory controls under EU and domestic environmental legislation, he considered that the common law had to be adapted to “march in step with” that legislation. The environmental permit was relevant also in the sense that it altered the character of the neighbourhood in which reasonableness was to be judged.
The appeal judges ruled that the judge had erred in law in this respect. The concept of “reasonable user” was at most a different way of describing the old principles of the law of nuisance, not an excuse for reinventing them. There was no principle that the common law should “march with” a statutory scheme covering a similar subject matter. Short of express or implied statutory authority to commit a nuisance, there was no basis in principle or authority for using such a statutory scheme to cut down private law rights.
Carnwath LJ was also concerned to dismiss any suggestion of a parallel with the situation where the grant and implementation of a planning permission might have the result of the character of a neighbourhood changing with the consequence that an activity which previously have been a nuisance must be held no longer to be so. In the case of the grant of the environmental permit, there was no detailed consultation on the likely adverse implications of the permit in terms of odour, nor any balancing of the conflicting interests of the residents and the public interest in landfilling.
John Martin is a freelance writer