Nuisance – Odour – Landfill – Appellant householders seeking damages in nuisance for odour from waste disposal site – Respondent having permit for activities on site – Permitted activities on site held to be incapable of giving rise to claim in nuisance in absence of breach of permit or negligence – Appeal allowed
The respondent, a waste disposal company, operated a landfill site in a mixed-use neighbourhood. There was a planning permission for such use dating from 1980. In 2004, the respondent began tipping more odorous “pre-treated” waste on the site pursuant to a waste management permit issued by the Environment Agency. The appellants, as residents of 152 households on a nearby housing estate, claimed damages in nuisance against the respondent in respect of odour coming from the landfill site from 2004 to 2009. The respondent claimed that it had a complete defence of statutory authority given that it had an appropriate permit from the Environment Agency under regulation 10 of the Pollution Prevention and Control (England and Wales) Regulations 2000, enacted pursuant to the Integrated Pollution Prevention and Control Directive.
The appellants did not allege that the respondent was negligent or in breach of its waste management permit. Instead, they submitted that the terms of the permit were irrelevant to their claim and that, having regard to the character of the neighbourhood, the use of the site for landfill was automatically an unreasonable use of the land.
In the court below, the judge held that the respondent could not rely on the defence of statutory authority. However, he held that the landfill use was not automatically unreasonable in a mixed-use neighbourhood and that the carrying out of permitted activities of waste disposal did not give rise to liability in nuisance in the absence of any negligence or breach of the permit: see [2011] EWHC 1003 (TCC); [2011] PLSCS 125. He further considered that, in an odour nuisance case, a threshold had to be set identifying a specific number of days on which inconvenience had to be accepted over the year. The appellants appealed.
Held: The appeal was allowed.
(1) The case was governed by the conventional, well-settled principles of the law of nuisance. The principles relevant to the instant case were as follows: (i) there was no absolute standard and it was a question of degree whether the interference was sufficiently serious to constitute a nuisance, to be decided by reference to all the circumstances of the case; (ii) there had to be a real interference with the comfort or convenience of living, according to the standards of the average man; (iii) the character of the neighbourhood had to be taken into account; (iv) the duration of an interference was a relevant, but not a decisive, factor; (v) statutory authority could be a defence to nuisance, but only if authority to commit a nuisance was given expressly or necessarily implied, such as where a statute authorised the use of land in a way that would inevitably involve a nuisance, even if every reasonable precaution were taken; and (vi) the public utility of the activity in question was not a defence.
Judged by those principles and in the light of the relevant authorities, the case against the respondent was reasonably clear-cut: Metropolitan Asylum District v Hill (1880) LR 6 App Cas 19, Polsue v Rushmer [1906] 1 Ch 234; [1907] AC 121 (CA) and Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683 considered. The introduction of “pre-treated” tipping had resulted in a series of episodes of unpleasant smells, affecting the ordinary enjoyment of residents’ houses and gardens. They were not just isolated or trivial occurrences, but had continued to attract substantial and credible complaints, intermittently and particularly in warm weather, over five years. Judged by conventional principles, the respondent did not have statutory authority: Allen v Gulf Oil Refining Ltd [1981] AC 181 applied.
(2) The judge had wrongly complicated the matter by taking the view that, in the context of the modern system of regulatory controls under EU and domestic environmental legislation, and the specific waste permit granted for the site, the common law had to be adapted to “march in step with” the legislation, such that the respondent user had to be deemed reasonable if it complied with the terms of the permit. The common law of nuisance had co-existed with statutory controls, albeit less sophisticated, since the 19th century. There was no principle that the common law should “march with” a statutory scheme covering 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. The permit for the respondent’s site was not “strategic” in nature, did not change the essential character of the neighbourhood and did not purport to authorise the emission of smells. There was no requirement for the appellants to allege or prove negligence or breach of condition. Even if compliance with a statutory permit were capable of being a relevant factor, it would be for the respondent to prove compliance, not the other way around.
(3) Further, there was no general rule requiring or justifying the setting of a threshold in nuisance cases and, by setting such a threshold, the judge had deprived some of the appellants of the right to have their individual cases assessed on the merits. The case should be remitted to an appropriate forum for a consideration of the individual claims, whether by a judge, or mediation, or by some other means. The parties and their advisers to consider and, if possible, agree their submissions as to the way forward in the light of the court’s judgment.
Stephen Tromans QC, John Bates and Catherine Dobson (instructed by Hugh James, of Cardiff) appeared for the appellants; Ian Croxford QC and Thomas de la Mare (instructed by Nabarro LLP) appeared for the respondent.
Sally Dobson, barrister
