The case of Barr v Biffa Waste Services Ltd [2011] EWHC 1003 (TCC) appears to be a potentially ground breaking case as it suggests that a compliant operation of a facility governed by an environmental permit may be protected from a claim in private nuisance.
The residents of a housing estate in Ware sought compensation for amenity loss caused by an odour nuisance from a nearby landfill site. They complained about the way in which the landfill site was being run on the basis that it created unpleasant odours, dust, noise, a fly infestation, and litter, and attracted birds and other vermin.
The case went before the Technology and Construction Court and the crucial issues were:
• whether Biffa had a defence of statutory authority in running a regulated facility; and
• if not, whether the use of the site as a permitted landfill site amounted to a reasonable user of the land.
Coulson J rejected arguments that Biffa could rely on a defence of statutory authority to defeat the nuisance claims. As a commercial organisation with no wider statutory powers, Biffa remained potentially liable for claims in nuisance. The company was not providing services to the wider public but had chosen to operate a landfill site on a voluntary basis. It had to remain within the terms of its permit, but beyond that it was free to pursue its commercial interests without regard to wider obligations to the public. Obligations arising under the relevant waste directives fell on companies in all Member States. No particular provision of any such directive, and no particular parts of domestic waste legislation, placed particular duties which must be met by Biffa plc.
However, on the reasonable user point, Coulson J held that, in all the circumstances, the permitted use of the landfill site meant that the carrying out of waste disposal, performed in accordance with the terms of the permit and without negligence, amounted to a reasonable user of land. In the absence of any allegation of negligent operation of the site, the claim must fail:
“As a matter of law, in the absence of a case based on breaches of the permit, and once the negligence claims were abandoned, the simple claims in nuisance were bound to fail, because the use of the site in accordance with the permit was not an unreasonable use of land.”
It as long been accepted that a planning permission cannot be taken to have authorised a nuisance (see Wheeler v Saunders [1994] EWCA Civ 32) but this line of authority was distinguished because of the detailed and ongoing control inherent in an environmental permit.
As one might expect, there were some occasional breaches of permit; about ten in total, four of which were proven (rather than merely the subject of warnings) which occurred between August 2004 and February 2005. However, these were said not to disturb the findings of a reasonable user partly because of a lack of correlation between this type of breach and the presence of an odour nuisance. Moreover such few examples of breach could not form a proper foundation for a claim in nuisance:
“whether or not Biffa were in fact in breach of the terms of the permit on any occasion other than the four proven breaches remains very much in issue, and I simply do not have the evidence to resolve that dispute (should it have been relevant) in these proceedings.”
This would seem not to completely rule out an action against a permitted facility but it suggests that in order to succeed, some element of negligence should be pleaded alongside nuisance or evidence should be adduced that the site is not operating in accordance with permit. Otherwise the judgment treats the fact of the permit as a defence to actions in private nuisance.
This leaves a number of issues open. Query what the position is in relation to statutory nuisance which involves another enforcement agency (the local authority) and which may involve wider factors (such as activity prejudicial to human health). Query also whether Coulson J could have held the line on the reasonable user point if the operation had caused actual damage rather than amenity loss.
It is understood that an appeal may be pending but this decision represents another restriction by the judiciary on the utility of an action in private nuisance. The Environment Agency is unlikely to thank the judges for this. If judicial remedies are not available then one might predict great pressure (and perhaps public law challenges) facing regulators to tighten and better enforce operating conditions at permitted facilities.
