Smell - Damages - Test case in group action brought by householders seeking damages for odour nuisance from defendant

Barr and others v Biffa Waste Services Ltd: CA (Civ Div) (Lady Justice Arden, Lord Justices Carnwath, Patten): 19 March 2012

The claimants were residents in properties in the vicinity of a waste tip operated by the defendants. They issued proceedings for nuisance by smell.

The claimants contended that they had common law rights in nuisance which had not been affected or excluded by the relevant environmental and landfill legislation including, inter alia, the Environmental Protection Act 1990, the Environment Act 1995 and the related regulations. The defendant submitted that it was unfair and unrealistic to ignore the legislation and the terms of its permit issued pursuant to regulation 10 of the Pollution Prevention and Control (England and Wales) Regulations 2000, SI 2000/1973, so that it could comply with all its numerous obligations and the detailed provisions of its permit, and yet still be liable to the claimants in nuisance. The judge found in favour of the defendant, and dismissed the claims. The claimants appealed.

The issue was whether the common law test of nuisance had been modified by the relevant legislation, and the terms of the specific waste permit granted to it. The appeal would be allowed.

It was well settled that there was no absolute standard; it was a question of degree whether the interference was sufficiently serious to constitute a nuisance. That was to be decided by reference to all the circumstances of the case. There had to be a real interference with the comfort or convenience of living, according to the standards of the average man. The character of the neighbourhood had to be taken into account. The duration of an interference was an element in assessing its actionability, but was not a decisive factor. Statutory authority might be a defence to an action in nuisance, but only if statutory authority to commit a nuisance was express or necessarily implied.

The latter would apply where a statute authorises the user of land in a way which would ‘inevitably’ involve a nuisance, even if every reasonable precaution was taken. The public utility of the activity was not a defence. 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 (see [36], [46] of the judgment).

The case was governed by conventional principles of the law of nuisance, which were well settled. In the circumstances, the defendant’s permit had not changed the essential ‘character’ of the neighbourhood, which had long included tipping. The change was in the introduction of a more offensive form of waste, which produced a new type of smell emission. The permit had not, and had not purported to, authorise the emission of such smells.

Far from being anticipated and impliedly authorised, the problem had not been covered by the original waste management plan, and the effects of the change in waste handling had come as a surprise to the defendant and the Environment Agency.

There was no requirement for the claimants to allege or prove negligence or breach of condition. There was no general rule requiring or justifying the setting of a threshold in nuisance cases. By adopting such a threshold, the judge had deprived some of the claimants of their right to have their individual cases assessed on their merits (see [36], [46] of the judgment). Decision of Coulson J [2011] All ER (D) 25 (May) reversed.

Stephen Tromans QC, John Bates and Catherine Dobson (instructed by Hugh James) for the claimants; Ian Croxford QC and Thomas De La Mare (instructed by Nabarro) for the ­defendant.