Whiff of victory

When is a nuisance really just part of the normal give and take of modern life? Can an action in nuisance even be brought when a situation is also covered by the terms of an environmental permit?

This was the difficult question addressed in the recent case of Derrick Barr vs Biffa Waste. It was group litigation alleging nuisance, brought by some of the occupiers of Vicarage Estate, close to a landfill site just north of Ware in Hertfordshire. The area had a history of quarrying and subsequent landfill uses as well as residential use. In 2004 Biffa began using the landfill site for pre-treated municipal waste - waste that had been sorted to remove materials that could be recycled. This meant that the waste was more elderly when it arrived at the site, and during the course of placing it into landfill it gave rise to what the judgment delicately refers to as “odours”.

Landfill sites are subject to significant regulation, including an environmental permit monitored by the Environment Agency for compliance. Environmental permits for this kind of operation contain a number of detailed conditions including an obligation on the operator “to use the best available techniques for preventing or, where that is not practicable, reducing emissions from the installation”. Some of the Vicarage Estate occupiers complained of the odours from the landfill site and between 2004 and 2009 there was intermittent and at times heated interaction between Biffa, the residents and the Environment Agency leading to a successful prosecution by the Environment Agency against Biffa for emissions in four incidents and this group litigation some time later. It is important to note that, possibly because of lack of evidence, by the time the case came to trial no allegations were made that Biffa had been negligent in failing to adopt the best available techniques as required by the permit.

The judge held:

• The grant of planning permission for a particular use does not prevent an action in private nuisance for that use
• Biffa could not rely on the defence of statutory authority because it was not a public body nor had it any rights under statute to operate a landfill site
• The wording of the permit recognised that there could be some odours from the site on certain occasions, despite using best available techniques
• The law of nuisance is less significant where there is legislation governing the activity in question. This means that if a company such as Biffa conducts its business entirely in accordance with an environmental permit, it will not normally be faced with a string of nuisance actions
• The use of the land was reasonable, taking into account the necessary give and take between the owners of neighbouring properties. Biffa had adopted various techniques to reduce the odours and was not liable in nuisance.

Finally, the judge had certain criticisms to make. The case, heard in the Technology and Construction Court, was complicated and lengthy because of the 152 households claiming in the group litigation, whereas only seven had any prospect of success. Biffa was criticised for its aggressive approach, including the way some claimants were cross examined, and the Environment Agency was also criticised for not being more rigorous in its dealings with Biffa. The judge considered that the case “has, in the end, not been of any benefit to anyone at all except the lawyers.”

However, companies that must comply with environmental permits, such as those in the waste industry, will welcome the fact that this case shows that complying with an environmental permit provides some protection against a claim in nuisance.

Gillian Birkby is head of construction at Fladgate