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Derrick Barr & Others v. Biffa Waste Services Ltd (TCC)


Technology & Construction Court

No claim in nuisance would lie against the operator of a landfill site which had complied with the terms of its environmental permit
The claimants (X) brought a claim in nuisance against the defendant waste disposal company (B).
X resided on an estate which was located near a landfill site operated by B. They asserted that over a five-year period they had been affected by odour coming from pre-treated waste at B's site. X's claim was in nuisance only. There were no allegations of negligence or of breaches of B's waste-management permit. The issues were (i) whether B had a defence of statutory authority; (ii) if not, whether the use of the site as a landfill site was a reasonable user of the land; (iii) the appropriate threshold, being the point at which the odour became a nuisance; (iv) the level of general damages payable.
HELD: (1) The factors which gave rise to a successful defence of statutory authority in Marcic v Thames Water Utilities Ltd [2003] UKHL 66, [2004] 2 A.C. 42 and Dobson v Thames Water Utilities Ltd [2007] EWHC 2021 (TCC), [2008] 2 All E.R. 362 were absent here. B had no statutory obligations itself. It was not providing services to the wider public; it was operating the landfill site on an entirely voluntary basis. As long as it complied with the terms of its permit, it was free to follow completely the dictates of its commercial interests. It had no wider obligations to the public. More fundamentally, it had no actual duties under the various statutes at all. All of the obligations arising under the relevant Directives were on Member States. No particular section of any of the Directives, and no particular parts of the subsequent domestic legislation, provided directly for particular tasks or obligations to be performed by B, Marcic and Dobson considered (see paras 317-318 of judgment). (2) As to the question of reasonable user, the issue was whether a claim in nuisance, without negligence, could lie against the operator of a landfill site, in circumstances where the activities said to give rise to the nuisance had been carried out in accordance with a detailed environmental permit. The appropriate starting point was the potential criminal liability that might exist on the part of a waste contractor. The legislation made plain that the use of land for the tipping of waste would be a criminal activity unless the operator of the site was acting in accordance with a valid permit. If the operator was carrying out his activities in accordance with a valid permit, that permit would provide a complete defence to any criminal charges. A similar position existed in respect of statutory nuisance. The emission of smell from the site could be pursued by the local authority as a statutory nuisance but, as part of any defence to such a claim, B would be entitled to argue that it had used "the best practicable means" to counteract the effects of the nuisance. In other words, if it had used the best practicable means, it could not have been negligent and would not be liable for a claim in statutory nuisance. There was no reason in principle why an operator's common law liability to his neighbours should not be subject to precisely the same limits. In that way, the carrying out of tipping activities outside the conditions of the permit (i.e. negligently and/or by failing to use best available techniques) would give rise to a common law liability, but the carrying out of activities in accordance with that permit would constitute compliance with all relevant legal obligations and would afford a complete defence to a claim in nuisance. That approach accorded with the relevant legislation and the terms of B's permit. Further, it accorded with the modern nuisance cases to conclude that claims at common law could be made against B, but only if they arose out of negligent acts and omissions on its part, as opposed to the simple performance of the permitted activities, Cambridge Water Co Ltd v Eastern Counties Leather Plc [1994] 2 A.C. 264 and Transco Plc v Stockport MBC [2003] UKHL 61, [2004] 2 A.C. 1 applied. Moreover, the neighbourhood in this case was not purely residential; B's detailed permit meant that, in the context of the mixed character of the neighbourhood, the carrying out of the permitted activities was not, of itself, an unreasonable user of the land. Such findings were fatal to X's case (paras 342-355, 359, 368, 373, 376). (3) The need for some sort of threshold in an odour nuisance case was imperative, not only because of the need to consider what might be reasonable user in all the circumstances, but also because odour cases were particularly susceptible to subjective interpretation and were impossible to evaluate by reference to objective or scientific measurements. Had B been liable, an appropriate threshold would have been one odour complaint day each week (paras 385, 446). (4) Had B been liable, it would have been appropriate to assess general damages on an annual basis. The right figure would have been £1,000 per year per household for each year when the threshold was exceeded (paras 555-556).
Judgment for defendant.

[2011] 4 All ER 1065 : 137 Con LR 125

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