The game changed back: Barr v. Biffa reversed

19 March 2012 by David Hart KC

Barr v. Biffa, CA, 19 March 2012, read judgment

For the last year or so, the law of nuisance has been in a state of flux pending this appeal. In this case about an odorous landfill,  Coulson J had ruled that compliance with the waste permit amounted to a defence to a claim in nuisance, and that a claimant had to prove negligence in the operation of the landfill before he could claim in nuisance. The Court of Appeal has today reversed this decision.

A full analysis will follow, but these are the headlines, most of which can be drawn from [46] of Carnwath LJ’s judgment:

i) the common law of  “Reasonable user” is at most a different way of describing old principles, not “an excuse for reinventing them”.  “…the question is neither what is reasonable in the eyes of the defendant or even the claimant (for one cannot by being unduly sensitive, constrain one’s neighbour’s freedoms), but what objectively a normal person would find it reasonable to have to put up with” : a quotation from the late-lamented Tony Weir in [72]

ii) The common law of nuisance has co-existed with statutory controls, albeit less sophisticated, since the 19^th 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, there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights.

iii) Further:

a) The 2003 waste permit was not “strategic” in nature, nor did it change the essential “character” of the neighbourhood, which had long included tipping. The only change was the introduction of a more offensive form of waste, producing a new type of smell emission. (There is a full discussion of the cases on planning permission, the waste permit, and the concept of “character of the neighbourhood” at [73]-[85], including a very recent Court of Appeal case (Coventry Promotions) about speedway racing.)

b) The permit did not, and did not purport to, authorise the emission of such smells.

iv) There was no requirement for the claimants to allege or prove negligence or breach of condition. Even if compliance with a statutory permit is capable of being a relevant factor, it would be for the defendant to prove compliance, not the other way round.

v) There is no general rule requiring or justifying the setting of a threshold in nuisance cases. (the judge had ruled that the claimants had to prove that they had been affected for at least 52 days a year before they could establish a nuisance.

vi) By adopting such a threshold, the judge deprived at least some of the claimants of their right to have their individual cases assessed on their merits.

Back, therefore, to the drawing-board for both claimants and defendants. All the claimants had all lost at first instance, and the Court is currently considering how things should be taken forward – costs already running at about £3m per side.

Note that the claimants’ Article 8 rights did not need to be relied to overturn this decision. Application of good old-fashioned common law principles did the job on their own.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

• The evolved mind: rising to the environmental challenge
• Insurers’ right not to pay damages for putting asbestos into insured’s lungs?
• Just when you thought they were extinct: human rights environmental case succeeds
• Smells and mosquitoes but no extra damages under the Human Rights Act
• European Court of Human Rights defers to traditional UK common law