Barr v Biffa and 19th-century nuisance

Caroline Hand reports on a case that sets a worrying precedent for the waste industry, one that will be of concern to all operators of activities that could cause a nuisance, such as noise, dust, fumes or odours.

Introduction

Businesses that comply with all the conditions of their environmental permit can normally expect to stay out of the courts. But this important judgment involving a major waste company shows that a law-abiding business can still be liable in common law nuisance, if its activities are found to be unacceptably offensive to local residents. Following its defeat in the Court of Appeal, Biffa is facing a £6 million bill for legal costs, not to mention the (as yet unspecified) payout to the residents.

The Westmill landfill site

Biffa’s Westmill 2 site near Ware, Hertfordshire was first opened in 2003 and was regulated by the Environment Agency, initially under a waste management licence and subsequently an environmental permit. Despite being close to a housing estate — the Vicarage estate — tipping had been an accepted feature of the area.

The problems began in 2004 when the site began accepting pre-treated waste, ie waste from which the recyclables had been removed at a transfer station. In taking only pre-treated waste, Biffa was following the principles of the 1999 Landfill Directive, which requires all waste to be pre-treated prior to landfilling.

Not only did this waste have a higher concentration of organic material than the previous mixed waste loads, but it had decomposed to a greater extent due to its stopover at a transfer station and was inevitably more odorous than untreated waste. On occasions where this pre-treated waste was tipped close to the nearby houses, a small group of local residents complained of a sickly, rotting smell. Mr Barr, the leader of the residents’ action group, told the court that he was unable to go into his garden or open the windows of his house on these occasions.

Biffa’s environmental permit contained a condition requiring the company to take reasonable steps to prevent odour. While some control measures were put in place, these were ineffective in stemming the tide of complaints. Perhaps surprisingly, the courts were not presented with much technical evidence as to the feasibility of abating the odour, leading the judge to comment that “It is not clear, therefore, how far failure to limit smells in the first or subsequent years was due to inadequate planning, inadequate remedial measures, inadequacy of implementation, or the intractable nature of the problem.”

In 2005 the Agency launched a prosecution for breach of the odour condition which resulted in a conviction in 2007. This point marked a deterioration in the relationship between Biffa, residents of the estate and the Environment Agency. Biffa assumed a stance described by the judge as hostile and belligerent, while the claimant’s solicitors, Hugh James, invited a much wider group of residents to join a group action, leading to a situation where a few genuine grievances were swamped by “a mass of less meritorious claims”, to quote the first judge.

Over the next two years the problem continued, culminating in the nuisance proceedings that commenced in May 2009. Ironically, it was at this point that the complaints ceased, the odours having been reduced to a tolerable level. It is a key feature of this case that at the time of bringing the action, Biffa was not in breach of its permit and there was no allegation of negligence.

The law of nuisance

The law of nuisance is a branch of English common law, where principles have been built up through a series of judgments over a long period of time. It is separate from statute law such as the environmental permitting regulations. This means that an individual or business can be liable in common law, even though he or she has committed no criminal offence.

For a nuisance action to succeed, “there must be a real interference with the comfort or convenience of living, according to the standards of the average man”. The judge will take into account the character of the area so that “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”.

Looking at the facts of the case, the appeal judge concluded that “the case against Biffa seems relatively clear cut” as the lead claimants had suffered a genuine loss of amenity, leading to “substantial and credible” complaints.

The issue to resolve was therefore not whether there had been a nuisance, but whether the law of nuisance, established in the 19th century, was still relevant in this case. It must be borne in mind that some of the key nuisance judgments were made in an era where there were no EU Directives, no environmental regulator and no pollution control legislation, contrastingly sharply with today’s situation in which potentially polluting industries are tightly regulated.

Biffa’s lawyers in the original case had succeeded in convincing the judge that nuisance law needed to move with the times or, in the judge’s words, “march in step” with the pace of change of environmental legislation. The lawyers had gone to a great deal of effort to reinterpret the law for the present day, and in so doing had managed to get Biffa off the hook on the grounds that the landfill operators had complied with their environmental permit. This analysis was accepted at first instance but rejected by the appeal judge, who concluded that “the fundamental principles of the law were settled by the end of the 19th century and have remained resilient and effective since then”, and that “the common law is at its best when it is simple”.

“Reasonable user”

Biffa argued that there is a defence in nuisance if an industrial activity is a “reasonable user” of the land. Odour, noise and dust are an inevitable consequence of some activities that are accepted by society as necessary. By Biffa’s reasoning, the grant of an environmental permit confirmed the landfilling operation as a “reasonable user”, and as Biffa was not in breach of the permit there was no element of negligence or case to answer. However, the appeal judge retorted that, “‘Reasonable user’ is at most a different way of describing old principles, not an excuse for reinventing them.”

Second, Biffa’s lawyers asserted that the grant of a permit deliberately changed the character of the area to one where the odours must be accepted. This kind of argument has succeeded in other cases, notably one where residents had complained of noise from a motorsports venue. Their nuisance claim failed because the motorsports track had been granted planning permission, indicating a deliberate change to the character of that area. However, in the Biffa case the grant of an environmental permit was not viewed by the judge as changing the character of this area, where landfilling had been going on since 1984.

Third, the original judge drew on noise cases to support his view that there should be some kind of recognised threshold for odour nuisance. His suggestion was that there should be at least 52 days per year when complaints were made. The appeal judge threw this out, considering that it had no basis in law.

Biffa now finds itself faced with a £6 million bill for its own and its opponents’ legal costs, not to mention the compensation, which has not yet been agreed. In bringing this test case, the company had hoped to establish principles that would give greater certainty to law-abiding companies, but it would seem that the law was not on its side. Payouts to the residents will probably be fairly modest but the complainants had no legal fees to pay. Likewise, their solicitors had little to lose: even if they had not won, it is likely that the legal costs would have been met through a relatively low-cost insurance policy.

The implications for industry

Many businesses have followed this case with interest, as it has wider implications for industry. Following the principles established by the appeal judge, companies will have to do more than merely comply with permit conditions if they are to be immune from liability in nuisance. Operators of waste installations and potentially noisy activities such as wind turbines will need to liaise with local residents, taking their concerns into account and make the case for the facility from the pre-planning stage onwards. Within the legal profession, there is a relatively new phenomenon of highly specialised lawyers who can profit from this kind of group action, so we may well see similar cases in the future.