In the case of Barr v. Biffa, The Court of Appeal last week rejected what was described as an “elaborate reinterpretation” of the traditional approach to the law of nuisance.
The case concerned unpleasant smells from a landfill site in Hertfordshire which is operated by the waste disposal company Biffa. Residents on the Vicarage Estate in Ware brought a private nuisance action against Biffa. The claim was dismissed at the first hearing in the High Court, where the Judge decided that nuisance claims would fail where a waste operator complied with its permit obligations and was not negligent. However, the Court of Appeal disagreed. Giving the leading judgment, Lord Justice Carnwath said that private nuisance cases “conventionally turn on issues of fact”, to be decided in accordance with “well-settled principles of law”. He said it was unfortunate that the High Court Judge had instead embarked on an “elaborate reinterpretation of the law of nuisance” since the common law was “best when it was simple”. He referred to Lord Justice Jackson’s recent ruling on nuisance in Coventry v. Lawrence and Shields , a case involving noise from motor-racing tracks.
Carnwath LJ said there was “no parallel” between the planning permissions in that case, granted years before, and the waste permit in Biffa. He said there were no consultations with residents on the likely impact of the waste permit on residents in terms of odour, nor any balancing of the conflicting interests of residents and public interest in landfilling.
He concluded: “This case is a sad illustration of what can happen when apparently unlimited resources, financial and intellectual, are thrown at an apparently simple dispute such as one about nuisance by escaping smells. The fundamental principles of law were settled by the end of the 19th century and have remained resilient and effective since then. Isolated statements in individual cases, at whatever level, are of limited value unless they have been absorbed into the stream of accepted authority.”
The Court of Appeal therefore allowed the appeal by the residents and dismissed Biffa’s cross-appeal. The case is now likely to be remitted back to the High Court for a decision as to how many of the 152 individual residents’ claims succeed on the facts and over what period, by reference by the Court of Appeal’s legal test.
Chris Harper is a partner and Head of the Exeter Dispute Resolution Team. The team is described as “exceptional” in the Legal 500 2010 Independent Directory, and “extremely effective” in the Legal 500 2011 Directory, which also described Chris as “one of the best litigation lawyers you could ever come across” and “someone you want fighting in your corner.” The Chambers Guide to the Legal Profession describes him as “a complete shining star” who “knows his subject inside out”.