Barr v Biffa Waste Services Ltd
[2012] EWCA Civ 312
Independent editorial summary — not the official judgment. Read the full judgment via the source link.
Ratio Decidendi
The grant of a statutory environmental permit does not, without express or implied statutory authority to commit a nuisance, provide a defence to a claim in private nuisance; compliance with regulatory conditions is not equivalent to reasonable user at common law, and a court should not impose an arbitrary quantitative threshold that removes the need to assess individual claimants' cases on their merits.
Facts
Biffa Waste Services operated a landfill site at Westmill, near Ware in Hertfordshire, under an environmental permit first granted in 2003 that allowed pre-treated waste to be tipped there for the first time. A group nuisance action over the resulting odour was brought by 152 households on the neighbouring Vicarage Estate, with 30 lead claimants selected from three defined zones within the estate. At first instance, Coulson J accepted that Biffa held no statutory immunity, express or implied, but nonetheless dismissed the claims, holding that Biffa's use of the land was reasonable because it complied with the conditions of its permit. Both the claimants and Biffa appealed to the Court of Appeal.
Judgment Summary
The Court of Appeal (Carnwath LJ, with Arden and Patten LJJ) allowed the claimants' appeal and dismissed Biffa's cross-appeal. It held the trial judge had erred in treating compliance with the environmental permit as making Biffa's conduct automatically 'reasonable user' for the purposes of nuisance: short of express or implied statutory authority to commit a nuisance, a regulatory permit cannot be used to cut down private law rights, and the common law of nuisance has long co-existed with statutory controls without being displaced by them. The court also rejected the judge's approach of imposing a fixed quantitative 'threshold' of weekly odour-complaint days before liability could arise, holding there was no general rule justifying such a threshold and that it wrongly pre-empted individual assessment of claimants' cases.
Key Quotes
"The common law of nuisance has co-existed with statutory controls, albeit less sophisticated, since the 19th century. There is 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 (rule (v) above), there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights."
— Carnwath LJ at [46](verbatim, verified against the judgment)
Subsequent Treatment
Important authority on the relationship between regulatory permits and common law nuisance.
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