Mr Barr lives near the Westmill 2 landfill site operated by Biffa in Ware, Hertfordshire. Planning permission had been granted to use the site for landfill in 1980. In 2003 a permit was issued for the operation of the site. This was one of the first permits of its kind as the proposed waste for Westmill was going to be pre-treated by the removal of recyclable material. This meant that the waste would be more odourous than normal because it would take longer to arrive at the landfill due to the delays for pre-treatment.

 

Mr Barr and 151 others brought a group action for nuisance from odours from the site between 2004, when tipping started, to 2009. Biffa argued that the legislation – English and European – meant that unless they had acted negligently or in breach of the permit they could not be liable in nuisance. They submitted that given the nature and character of the area the use of a landfill site was a reasonable use, particularly in the light of the permit. They also said the defence of statutory authority applied. The Claimants denied this and said that if a nuisance was established then negligence was immaterial. The regulatory scheme for waste management sites did not affect this or make the use a "reasonable use" and did not grant Biffa "statutory authority."

Biffa also contended that to succeed in a nuisance action a Claimant must show that a numerical threshold of nuisance events had been crossed, citing Watson v Croft Promo Sport [2009] EWCA Civ 15 as authority for this proposition. The Claimants submitted that no such numerical threshold applied and the test of whether a nuisance existed or not was the same one as had been applied by courts over the last 200 years, namely an assessment of what a reasonable person would put up with in the light of the nature and character of the area.

 

At first instance Coulson J ([2011] EWHC 1003 (TCC),while rejecting the statutory authority defence, upheld Biffa's submissions on reasonable use. He found that the use of Westmill 2 as a landfill site in accordance with the permit was a reasonable use of land or alternatively that the granting of the permit had an effect on the character of the neighbourhood such that again the use of the site for this purpose amounted to a reasonable user. He also held that a numerical threshold in nuisance cases should be set based on contemporaneous complaints to authorities or odour records and set that threshold at 52 days a year regardless of intensity, duration and locality.

 

Giving the judgment of the Court of Appeal, Carnwath LJ strongly criticised this approach. He agreed with Coulson J on statutory authority and considered the cross appeal by Biffa on this point "hopeless." He also considered that Biffa’s attempt to find an alternative route to the same effective end misconceived. The argument that the common law must yield to environmental legislation had no basis in authority.

 

As far as reasonable use was concerned, Carnwath LJ pointed out that this is an application of the traditional common law tests for determining nuisance. Reasonableness is concerned with what objectively a normal person would find reasonable to have to put up with. This is in part judged by the character of the area. Where an activity has planning permission and a regulatory permit this is a relevant factor if they change the character of the area. Permits in themselves are not concerned with the balance of uses in an area but merely regulate one activity within it. The public benefit of an activity is not a relevant factor.

 

The Court of Appeal also rejected the numerical threshold criteria, considering that neither Watson nor the general law afforded any support for this approach. There is no precedent for it nor is there any accepted methodology for doing so in odour cases. The claimants were entitled to have their cases assessed in the same way that previous nuisance cases have been assessed.

 

Having thus found against Coulson J’s findings on the law – save for statutory authority – and the assessment of nuisance, the CA turned to the individual claims. It held that as the judge solely relied on his threshold test he deprived at least some of the claimants of their right to have their individual cases assessed on their merits.

 

Accordingly the appeal succeeded, the cross appeal on statutory authority failed and the claims will be remitted to an appropriate forum to complete the assessment of the claimants' claims.

 

John Bates represents Mr Barr and his co-claimants, led by Stephen Tromans QC, instructed by Gwen Evans at Hugh James, Cardiff.