A robust restatement of the principles of nuisance

27 March 2012 by

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

The reverse suffered by the claimants in the noisy motor racing case case before the Court of Appeal last month was something of a body blow to common lawyers and environmentalists. So this latest development in nuisance litigation should be welcome news.

As David Hart’s report  suggests, the Court of Appeal pulls no punches in its critique of the High Court judgment which dismissed the claims of 152 households on the basis that a landfill operator had abided by the terms of its permit. Reasserting the private law rights of individuals in nuisance actions, Carnwath LJ observes that this case has been

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.

The common law, he notes, is best when it is simple. And in this judgement he returns nuisance to the simple statement of reciprocity and neighbourliness where it belongs.

There are a few propositions – not many – in Carnwath LJ’s judgment which will serve as a clear, short checklist for the viability of a nuisance action.

1) it is not necessary for a claimant in nuisance to prove any breach of a permit or planning permission in order to establish a case

2) statutory controls do not imply an authority to commit a nuisance; if there is no statutory immunity, express or implied, an action may lie.

3) if an objective bystander would not put up with the activity complained of, it may be “unreasonable” for the purpose of nuisance. The concept of “reasonable user” does not mean what is reasonable in the eyes of the tortfeasor or landowner.

3) compliance with the terms of permission does not mean that the defendant is behaving “reasonably” so as to defeat a nuisance claim; conversely, an activity which is conducted in contravention of planning or environmental controls is unlikely to be reasonable.

4) it is not possible to set a generic threshold for what is or is not a nuisance

5) there is no such thing as “strategic” grant of planning permission such that it alters the character of the neighbourhood in which reasonableness is to be judged

This last point has been the source of a great deal of expensive misunderstanding ever since Buckley J ruled in 1993 that the development of a commercial dock in the Chatham area had significantly changed the character of the neighbourhood, changing the definition of what was and was not unreasonable behaviour. As Carnwath LJ stressed, this approach, far from providing a broad rule for the determination of liability, remains a matter for debate: isolated statements in individual cases, at whatever level, are of “limited value” unless they have been absorbed into the stream of accepted authority.  As he explained, the “Gillingham Docks exception” refers to a line of cases where it is assumed that behind the planning permission or grant of authority is a policy to transform an area.

Can such transformation arise simply as a matter of fact, not policy? If all judges adopted the principled approach of this ruling, probably not.  Carnwath LJ referred to the recent rejection of a nuisance claim in Coventry Promotions v Lawrence [2012] EWCA Civ 26. Here the Court of Appeal has recently ruled  that pre-existing motor-racing activities, carried on for more than a decade, under first a Certificate of Lawful Use and then a planning permission subject to detailed conditions, had become part of the “character of the neighbourhood”, against which the alleged nuisance must be judged. Jackson LJ specifically approved the decision and reasoning in Gillingham Docks, which he recognised as leading to a “harsh outcome”, observing that the planning authority had made a decision in the public interest and “the consequences had to be accepted” (para 57). But the Gillingham Docks approach cannot be applied to the situation that obtained in the instant case, where there had been various permissions, granted over a long period, for quarrying and tipping as well as housing, the implementation of which had created the character of the neighbourhood as it now is:

There was never any consultation of the competing public interest or any balancing of the conflicting interests of the residents and the public interest in landfilling. In my view, the case gives no support to the proposition that a relevant change in character was effected by the grant of the 2003 waste permit.

Nor could Carnwath LJ find any support in the motor racing cases for a general approach of setting a “threshold” for evaluating past nuisance. They turn on their own facts, and in particular the nature of the nuisance – noise nuisance arising from an organised activity such as motor-racing is susceptible to such control, the “nebulous” nature of nuisance by odour, is not.  In any situation where the nuisance-emitting activity lacks any objective or scientific method of measurement, the sole responsibility of the courts is to identify whether the nuisance is one which it is reasonable to tolerate, rather than trying to locate any “dividing line, the moment when ‘give’ becomes ‘take'”, as Coulson J tried to do in the first instance decision in Biffa. Of course the operator could not limit their odorous activities to particular days in advance.

The smells arising from the Westmill site were transient and unpredictable in timing, and intensity. Nor is there any proven technology for assessing and setting enforceable limits to smells, as there is for noise.

There is no precedent for requiring claimants to specify a precise limit of acceptable smell, and there is no accepted methodology for doing so.

This judgment is a timely reassessment of the role of nuisance in modern environmental regulation (see my previous post exploring the broader question of environmental responsibility and the common law). Carnwath LJ tackles in particular the proposition that Lord Goff was supposed to have made in the 1993 landmark case of Cambridge Water, that the tort of nuisance should take a back seat where complex environmental controls are involved. Lord Goff was talking about the future development of the common law in an uncertain law, “not the rewriting of well-settled principles of the law of nuisance –

..it provides no support for the general principle that the common law must be modified, in [Coulson J’s] words, to “march in step with” (para 354), or “to operate in tandem with, and sometimes to take a backseat to” (para 354), or to “yield to” (para 359) the environmental legislation. Biffa is not a statutory undertaker; and, however beneficial its activities may be to the public, it is under no statutory duty to provide them.

The existence of a general duty under the Waste Framework Directive 2006 on member states to provide a network of waste disposal sites does nothing to assist the court in determining liability under the common law. Nothing has changed since the nineteenth century Metropolitan Asylum case, where the duty imposed on the authorities to provide hospitals for infectious diseases provided no defence to an action for nuisance, notwithstanding the acknowledged difficulties in finding suitable sites:

Now, as then, if there is a problem in meeting the need within the existing legal framework, its solution must rest with the legislature. Parliament has not yet chosen to provide statutory immunity from common law nuisance claims for waste sites provided in accordance with the Directive.

This ruling reflects the current thinking of on nuisance law, which environmental expert Ben Pontin notes has undergone a

dramatic renaissance, prompted by the realisation that, in practice, regulatory laws often flatter to deceive (“The Secret Achievements of Nineteenth Century Nuisance Law” ELM 19 (2007) 6 pp 279-90)

Hopefully this trend will continue and the common law of nuisance will serve to do more than fill the gaps in the messy patchwork of state and EU regulation in this field.

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