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.

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

Related posts:

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: