“There shall be no odours emitted from the Permitted Installation at levels as are likely to cause pollution of the environment or harm to human health or serious detriment to the amenity of the locality outside the Permitted Installation boundary, as perceived by an authorised officer of the Agency.”
“Emissions from the activities shall be free from odour at levels likely to cause pollution outside the site, as perceived by an authorised officer of the Agency, unless the operator has used all appropriate measures, including but not limited to those specified in any approved odour site management plan, to prevent or where that is not practicable to minimise the odour.”
“We believe the measures we are taking are working. We remain very committed to resolving this problem. We have undertaken all the actions promised and fully appreciate that the only result the residents seek is to be rid of any odours from this site. It is worth noting that the general standards of operation have improved considerably since Biffa took over and we continue to strive to achieve our policy of being good neighbours with an open door approach to local communities.”
“This was the start of the process which has led to this Group Litigation. It appears that Hugh James had been alerted by the forthcoming rehearing of the EA prosecution.”
“Inputs from Barking and Edmonton represent approximately 30% of Westmill's input and are a long-term strategic outlet for the waste. It is of vital importance to Westmill's performance and the transfer stations' long-term viability that they continue to dispose of their waste at Westmill. We do not want to get into a situation where the EA or Biffa decide that the transfer stations cannot continue to tip at Westmill because that will severely jeopardise the long term security of all the operations.”
“A resident in such an area must put up with a certain amount of noise… But whatever the standard of comfort in a particular district may be, I think the addition of a fresh noise caused by the defendants works may be so substantial as to create a legal nuisance.”
“is the operator of a landfill site, who complies with the detailed requirements of his permit, and is not alleged to be negligent, liable in nuisance for the inevitable consequences of those permitted activities?”
“(i) whether in principle the activity is a “reasonable user” of land (“reasonable in principle”) in general, taking due account of the potential impact of such land use on neighbours as well as the character of the locality; and, if so (ii) whether the activity is in fact a reasonable use of the land in question (“reasonable in fact”), taking account of all relevant factors including: (a) the controls put in place to diminish potential interference with a neighbour (“reasonable in operation”); and (b) the impact (proper controls notwithstanding) of the activity upon neighbours (“reasonable in impact”)”
“... although liability for nuisance has generally been regarded as strict, at least in the case of a defendant who has been responsible for the creation of a nuisance, even so that liability has been kept under control by the principle of reasonable user – the principle of give and take as between neighbouring occupiers of land, under which "those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action:" see Bamford v Turnley (1862) 3B&S 62,83. The effect is that, if the user is reasonable, the defendant will not be liable for consequent harm to his neighbour's enjoyment of his land; but if the user is not reasonable, the defendant will be liable, even though he may have exercised reasonable care and skill to avoid it. Strikingly, a comparable principle has developed which limits liability under the rule in Rylands v Fletcher. This is the principle of natural use of land…”
“If it be good law, that the fitness of the locality prevents the carrying on of an offensive trade from being an actionable nuisance, it appears necessarily to follow that this must be a reasonable use of the land. But, if it is not good law, and if the true doctrine is that, whenever, taking all the circumstances into consideration, including the nature and extent of the plaintiff’s enjoyment before the acts complained of, the annoyance is sufficiently great to amount to a nuisance according to the ordinary rule of law, an action will lie, whatever the locality may be, then surely the jury cannot properly be asked whether the causing of the nuisance was a reasonable use of the land.”
“… you must not stand on extreme rights… Business could not go on if that were so. Everything must be looked at from a reasonable point of view; therefore the law does not regard trifling and small inconveniences, but only regards sensible, inconveniences, injuries which sensibly diminish the comfort, enjoyment or value of the property which is affected”
“That decision establishes that where a case of nuisance is sought to be made out, it is not a right question to put to the jury to say whether the place where the act was done was a proper and convenient for the purpose, or whether the doing of it in that place was a reasonable use by the defendant of his own land. And if that question is to be excluded with respect to the relative positions of the plaintiff and the defendant, as private individuals, it is likewise inconsistent with sound reason to say that the matter can be considered with reference to the interests of the public. It is a new thing to me that, without compensation, an individual is precluded from redress for private injury arising from that injury.” “That decision establishes that where a case of nuisance is sought to be made out, it is not a right question to put to the jury to say whether the place where the act was done was a proper and convenient for the purpose, or whether the doing of it in that place was a reasonable use by the defendant of his own land. And if that question is to be excluded with respect to the relative positions of the plaintiff and the defendant, as private individuals, it is likewise inconsistent with sound reason to say that the matter can be considered with reference to the interests of the public. It is a new thing to me that, without compensation, an individual is precluded from redress for private injury arising from that injury.”
“The use of the word ‘reasonable’ in this context is apt to be misunderstood. It is no answer to an action for nuisance to say that the defendant is only making reasonable use of his land… What is reasonable from the point of view of one party may be completely unreasonable from the point of view of the other. It is not enough for a landowner to act reasonably in his own interest. He must also be considerate of the interest of his neighbour. The governing principle is good neighbourliness, and this involves reciprocity. A landowner must show the same consideration for his neighbour as he would expect his neighbour to show for him.”
“His conclusion was that two conditions must be satisfied: the acts complained of must (i) ‘be necessary for the common and ordinary use and occupation of land and houses’ and (ii) must be ‘conveniently done’, that is to say done with proper consideration for the interests of neighbouring occupiers. Where these two conditions are satisfied, no action will lie for that substantial interference with the use and enjoyment of his neighbour's land that would otherwise have been an actionable nuisance.”
“f) The granting of planning permission will not of itself sanction the nuisance (Wheeler). However it may be relevant to issues surrounding the character of the neighbourhood (Gillingham, Watson), and generally (Mid Suffolk).”
“371. In all the circumstances, the grant of the permit in 2003 can therefore be said to have redressed the overall balance: to have made plain that this had not somehow become a purely residential locality, but instead remained a mixed use area. To put it another way: even though the housing was creeping progressively northwards up to the A10 during the period between the two permits of 1980 and 2003, this expansion did not mean that the area had suddenly become a purely residential locality. It was and remained a mixed use area, with a lengthy history of gravel extraction and landfilling, which the permit of 2003 only served to emphasise. Moreover, in my judgment, the grant of the tipping permit in 2003 was clearly strategic. Westmill 2 was the first landfill site of its kind, because it was taking pre-treated waste, and so it was always going to give rise to inevitable teething troubles.”
“First, it is well established that the grant of planning permission as such does not affect the private law rights of third parties… Second, the implementation of that planning permission may so alter the nature and character of the locality as to shift the standard of reasonable user which governs the question of nuisance or not… In the light of these two well established principles I find it hard to understand how there can be some middle category of planning permission which, without implementation, is capable of affecting private rights unless such effect is specifically authorised by Parliament. It has not been suggested to us that there is any section in the statutory code governing the application for and grant of planning permission which could have that result. For that reason alone I would reject the second ground of appeal put forward by the defendants.”
“It is not a strategic planning decisionaffected by considerations of public interest. Unless one is prepared to accept that any planning decision authorises any nuisance which must inevitably come from it, the argument that the nuisance was authorised by planning permission in this case must fail. I am not prepared to accept that premise. It may be -- I express no concluded opinion -- that some planning decisions will authorise some nuisances. But that is as far as I am prepared to go…”
“It is clear on the authorities… that, first, the exercise of the permission to develop granted by the local planning authority may have the result that the character of the neighbourhood changes and that which would previously have been a nuisance must be held no longer to be so… In my opinion, however, the effect of the grant of planning permission cannot be treated, even in a limited sense, as the equivalent of statutory authority….”
“(g) The fact that the nuisance is caused by activities which are beneficial will not provide a defence to a nuisance claim (Miller v Jackson). Such benefit may be a relevant factor to be taken into account in weighing up the competing interests of the parties when assessing reasonable user/'give and take' (Kennaway), but this is not entirely settled and cannot be taken too far (Transco).”
“... it is no defence to a claim in nuisance to show that the business or other activity was either useful or highly desirable in the public interest”
“e) In cases of emissions, environmental legislation may be relevant to, and even dictate, the court's approach to common law nuisance claims (Cambridge Water, Dennis, Transco).”
“a) The central issue 342. As I have indicated, the central remaining issue in this case is whether a claim in nuisance, without negligence, can lie against the operator of a landfill site, in circumstances where the activities said to give rise to the nuisance have been carried out in accordance with a detailed environmental permit. Or, to put the question another way: does the legislation set out in Section D above, and the detailed terms of the permit set out in Section B2 above, mean that the use of land in accordance with the terms of that detailed permit was a reasonable user of that land? For the reasons set out below, I consider that, in the present case at least, the answer to the first question is No, and that the answer to the second question is Yes. I consider that the claimants' contention, that the legislation and the detailed terms of the permit are irrelevant to their claim in nuisance, such that the use of Westmill 2 as a landfill site was automatically an unreasonable user of the land, is wholly unrealistic, contrary to many of the authorities cited in Section C above and the modern trend in nuisance cases, and would give rise to an uncertain and unworkable position in law. b) First Principles 343. There is no binding authority that provides a definitive answer to the question that I have to decide (see paragraphs 256-257 above). Accordingly, it is necessary to start with first principles, to identify what the logical answer might be, and then to investigate whether that logical answer is supported by the statutory regime, the terms of the permit itself, and the reported cases. 344. In my view, the appropriate starting point is the potential criminal liability that may exist on the part of a waste contractor in these circumstances. The legislation, to which I have referred in Section D above, makes plain that the use of land for the tipping of waste is a criminal activity unless the operator of the site is acting in accordance with a valid permit (s.33 of the EPA 1990). If the operator is carrying out his activities in accordance with a valid permit, then that permit provides a complete defence to any criminal charges. That, so it seems to me, is a logical and coherent position. 345. A similar position exists in respect of statutory nuisance (paragraphs 287-288 above). The emission of smell from the site could be pursued by the local authority as a statutory nuisance pursuant to section 79 of the EPA. But, as part of any defence to such a claim, Biffa would be entitled, pursuant to s.80(7), to argue that they had used "the best practicable means" to counteract the effects of the nuisance. In other words, if they had used the best practicable means they could not have been negligent and would not be liable for a claim in statutory nuisance. 346. Why should the situation at common law be any different from the position in criminal law and the position in respect of statutory nuisance? I can see no reason in principle why an operator's common law liability to his neighbours should not be subject to precisely the same limits. In this way, the carrying out of tipping activities outside the conditions of the permit (i.e. negligently and/or by failing to use best available techniques) would give rise to a common law liability, but the carrying out of activities in accordance with that permit would constitute compliance with all relevant legal obligations, and would therefore afford a complete defence to a claim in nuisance. 347. I consider that analysis to be common sense. An activity should not be permitted by one set of specific rules (derived from detailed legislation), yet at the same time give rise to a liability to a third party by reference to the much more general set of principles to be derived from the common law. The real question is whether this answer is in accordance with the legislation, the particular terms of the permit in this case, and the earlier cases. For the reasons noted below, I consider that, on analysis, it is the answer expressly suggested by all three.”
“It does not follow from these developments that a common law principle should be developed or rendered more strict to provide for liability in respect of such pollution. On the contrary, given that so much well-informed and carefully structured legislation is now being put in place for this purpose, there is less need for the courts to develop a common law principle to achieve the same end, and indeed it may well be undesirable that they should do so.”
“Liability in nuisance is strict in the sense that one has no right to carry on an activity which unreasonably interferes with a neighbour’s use of land merely because one is doing it with reasonable care. If it cannot be done without causing an unreasonable interference, it cannot be done at all.” ii) I do not understand the statement that “all of the legislation expressly accepted” that a site such as Westmill 2 “would create odour from time to time”
“There shall be no odours emitted from the Permitted Installation at levels as are likely to cause pollution of the environment or harm to human health or serious detriment to the amenity of the locality outside the Permitted Installation boundary, as perceived by an authorised officer of the Agency.”
“1. Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of disposal installations, taking account of the best available technology not involving excessive costs… 2. The network referred to in paragraph 1 must enable waste to be disposed of in one of the nearest appropriate installations, by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health.”
“d) In addition, the more recent cases have assessed the reasonable user principle by reference to some kind of threshold or starting point, a finite experience of a situation beyond which a nuisance claim has been made out (Kennaway, Watson).”
“Our task has been to decide on a form of order which will protect the plaintiff from the noise which the judge found to be intolerable but which will not stop the Club from organising activities about which she cannot reasonably complain. When she decided to build a house alongside Mallam Water she knew that some motor-boat racing and water skiing was done on the Club's Water and she thought that the noise which such activities created was tolerable. She cannot now complain about that kind of noise provided it does not increase in volume by reason of any increase in activities. The intolerable noise is mostly caused by the large boats; it is these which attract the public interest.”
“The continued strength of private nuisance in a regulatory state depends on a more flexible approach to remedies.”
“Given that Biffa say that they accept the accuracy of the complaint records, and given that it was overwhelmingly likely that the court would prefer those records to the oral evidence of the claimants (if different), it remains difficult to see how or why it was necessary for almost every claimant to be so extensively cross-examined.”
“523. Mr Barr was not the lead claimant by accident. Living in Dovedale, he lived as close as possible to the Westmill 2 site. The EA telephone log indicates that, between26th July 2004 and8th July 2009 , Mr Barr made 204 separate complaints about the odour on site. It is clear from this log that he regularly suffered from odour emissions from the site and endeavoured to do all he could to resolve the problem. He too provided a statement to the EA in support of their prosecution, which was easily the most detailed of the statements that they obtained.”
“528. On this basis, I am unable to say that Mr Barr has demonstrated that he crossed the necessary threshold. His highest numbers of odour complaint days were 35 in 2005, 36 in 2006, 47 in 2007, and 39 in 2008. I find that those were in respect of any odour, regardless of intensity, duration or location. They do not cross the once a week threshold that I have outlined. On the contrary, his records show that, although there was an odour problem, it was infrequent, often transient and localised and, although there were occasions when it was significant, or had a significant effect, those occasions were not frequent enough to ground a claim. Accordingly, Mr Barr's claim would fall to be dismissed on the facts in any event.”