Patricia Andrews & Ors v Kronospan Limited [2025] EWHC 2429 (TCC)

[2025] EWHC 2429 (TCC)Case No HT-2023-MAN-000047
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue BUSINESS AND PROPERTY COURTS OF MANCHESTER
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Venue Manchester Civil Justice Centre,, Manchester M60 9DJDate 25 September 2025
Between
PATRICIA ANDREWS & othersClaimantKRONOSPAN LIMITEDDefendant
Before HHJ Stephen Davies sitting as a High Court Judge
David Hart KC & Alasdair Henderson (instructed by Hugh James, Cardiff) for ClaimantsMichael Kent KC & Michael Jones (instructed by Clyde & Co Claims LLP, Salford) for KronospanHearing Hearing dates: 28, 29, 30 April; 1, 6, 7, 8, 12, 13, 14, 15, 19, 20, 21 May 2025; 9, 10 June 2025Judgment sent out in draft: 2 September 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 25 September 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This is a group litigation environmental nuisance case where the Claimants are Or,where people have since moved away from Chirk, were at the relevant times. a group of residents from Chirk, a large village / small town to the south of Wrexham lying just over the border between Clwyd in Wales and Shropshire in England. They seek damages and other relief against the Defendant, Kronospan Limited, which is the UK arm of the Kronospan group of companies and the operator of a factory in Chirk. The claims are in respect of emissions of dust particles, odour and noise from that factory.[2]There is no scientific evidence before me to suggest that the dust particles, odour or noise are harmful to the human body. Instead, the Claimants’ case is that the operation of Kronospan’s factory has over a prolonged period emitted dust, noise and odour to such an extent and with such a degree of regularity and unpleasant consequences that it constitutes a legal nuisance. I emphasise the word legal, because a state of affairs which people might describe in general speech as a nuisance is a different thing from something which is a nuisance as a matter of law.[3]Kronospan’s essential case is that, whilst the operation of its factory is bound to have an occasional impact on those living nearby, its actual impact falls well below the level of intensity or continuity which amounts to a legal nuisance. It also contends that its factory operations:(a) form part of the existing pattern of uses in Chirk;(b) have been tightly regulated and conducted responsibly and in accordance with ‘Best Available Techniques’ (“BAT”Glo) so as to mitigate any environmental impact; and(c) constitute an ordinary and a reasonable user of its site, which does not cause any substantial interference to the Claimants. The result, it says, is that this claim in the tort of nuisance cannot succeed. In the alternative, it contends that the Claimants are unable to complain of nuisance by an application of the legal defence known as prescription.[4]Although I will have to deal with the character and existing pattern of uses in Chirk in more detail later, by way of introduction Chirk is essentially divided into two separate principal areas:(a) an industrial area, situated to the north-west of Chirk; and(b) a number of residential areas, situated to the north-east, east, south-east and south of the industrial area. Holyhead Road, running north to south, and Station Avenue, running east to west, effectively separate the industrial area from the residential areas.[5]Kronospan’s factory is by far the largest factory in the industrial area. Its principal products are particleboard Colloquially known as chipboard. , medium density fibreboard (“MDF”Glo), and laminate flooring and worktops (“laminates”). Its principal raw material is softwood, in various forms, including recycled fibre (“RCF”Glo).[6]One of Kronospan’s expert witnesses, Dr Datson, states in his report that Kronospan handles and processes 1.5 million tonnes p.a. of timber and timber products. He accepts that these products have the potential to generate dust, although he also says that dust emissions from these operations are capable of being kept to acceptable levels. The issue is whether Kronospan has managed to do so, or whether it has caused a nuisance in legal terms.[7]Much of this remainder of this introduction is taken from the agreed neutral case summary and the agreed neutral list of issues, produced by the parties’ respective leading and junior counsel.[8]I am very grateful to all of the legal advisers for their professional co-operation in the preparation for and the conduct of the trial. I am especially grateful to them for arranging for the voluminous documentary evidence to be made available online in fully electronic form through a third party provider, who also provided an electronic evidence presentation facility and a simultaneous live transcript of the evidence.[9]I am also extremely grateful to leading and junior counsel on both sides for their skilful and effective presentation of their respective client’s cases. In accordance with current best practice in the Business and Property Courts, all counsel played a full part in the conduct of the trial, with each counsel cross-examining a number of different witnesses.[10]This judgment is limited to the trial of the claims brought by 16 lead Claimants Save where necessary to differentiate, I refer interchangeably to the Claimants and to the lead Claimants. , eight having been chosen by each party. All other cases are stayed for the time being. The case was issued in the Royal Courts of Justice, London in July 2017 (for no obviously good reason, given the location of Chirk) and was managed by the Senior Master, Master Fontaine, until it was transferred to the Manchester TCC in 2023 and allocated to me.[11]The procedural steps from 2017 to 2022, and the problems and complications encountered, are summarised in a judgment given by the Senior Master in 2022 (neutral citation number [2022] EWHC 479 (QB)), as a result of which Dr Gibson, who had previously been instructed by the Claimants as its lead expert, had his permission to act as expert revoked, for reasons which I need not recount in this judgment, since they are immaterial to the issues I have to decide.[12]At the first post-transfer case management conference held in January 2024 I gave directions up to and including the listing of this trial. The parties had agreed, and I directed, that there should be a two stage trial process, with this first stage one trial determining the lead Claimants’ claims for damages, including quantum, in respect of alleged dust, odour and noise nuisance from 18 July 2011 to 18 July 2017 (“the relevant claim period”), being the six year period running back from the date of issue of the claim form. That is because it is common ground that no claims may be made in relation to any period before that cut-off limitation date.[13]Any stage two trial would, if necessary, determine all remaining issues which are, in short, any claims for continuing nuisance from July 2017 onwards and any claim for injunctive relief. The parties anticipate that my findings as made in this judgment and my assessment of the expert evidence called (including the utility or otherwise of the dust deposition modelling exercise and the dust characterisation exercise) will affect their perception as to the likely outcome of the stage two trial, so that there is a very good chance that they can reach a settlement without the need for a trial.[14]The stage one questions to be determined have been summarised as follows:(1) Whether Kronospan is liable to the lead Claimants in public or private nuisance by reason of dust, noise or odour emissions as a result of its management or operation of the site?(2) What is the distance beyond which the lead Claimants’ complaints of nuisance are unlikely to have been of such a degree as to constitute an actionable nuisance?(3) What levels of damages should be awarded to the lead Claimants if their complaints of nuisance are justified?[15]Determination of question (1), apart from involving findings of fact about the nature and extent of the dust, odour and noise emissions and impact over the relevant period, and the nature of the operations carried out at the factory, also includes making findings of fact and law in respect of Kronospan’s pleaded defences of using best available techniques and prescription and the Claimants’ pleaded responses to such defences.[16]Question (2) (distance beyond which no nuisance) is closely related to question (1). It was specifically directed to be addressed by the experts in dust dispersion modelling and has been covered by them in their reports. Depending on my assessment of the evidence as a whole it may not be possible to answer this question at all or other than in general terms.[17]However, for such purpose, and more generally for convenience, I shall refer to the residential areas of Chirk by reference to a plan produced by Kronospan. This, in addition to identifying where each of the lead Claimants and their witnesses and each of Kronospan’s witnesses from Chirk live/ have lived, also divides the residential areas into six areas, following the approach taken by Dr Carruthers in Table 5 of his principal report. Using that division as a convenient shorthand, but bearing in mind that there is no particular science behind the division and that the areas are only approximate:(i) the North East area lies, as its name indicates, to the north-east of Chirk and also north-east relative to the factory. It is also referred to as Lodgevale Park, which is the name of the estate where most of the housing is located. The principal road in this area, branching off from Holyhead Road, is known as Crogen.(ii) the East 1 area lies immediately south of the North-East area. It is directly opposite the storage and preparation area (also referred to as the log-yard area) of the Kronospan factory. In the view of their lead expert Ms Wilson it is most liable to be directly affected by windblown dust from exposed wood products in the log-yard area. The Co-op store also lies in this area, on the Kronospan side of Holyhead Road.(iii) the East 2 area lies immediately south of the East 1 area. It is directly opposite the main production area of the Kronospan factory.(iv) the East 3 area lies immediately south of the East 2 area and is directly opposite and to the south of the site entrance to the Kronospan factory(v) the East 4 area lies to the east of the East 3 area and, hence, is further away from the Kronospan site.(vi) finally, the South area lies to the south and south east of the Kronospan site. It is separated from the factory by playing fields on the west side of Holyhead Road and by the Mondelez (formerly Cadburys) factory on the north side of Station Road. It is, therefore, also further away from the Kronospan site.[18]It is proposed that answering question (3) will also provide a useful unofficial tariff of any awards made, which the parties are likely to apply to the rest of the cohort whose claims have been stayed. Dividing the residential areas of Chirk into areas may also assist this process, assuming that I find a link between the location and the nature and extent of any nuisance suffered by the lead Claimants.[19]I had the benefit of pre-reading full written opening submissions from both parties. I also had a very helpful pre-trial site visit, accompanied by leading counsel for both sides, during the course of which I visited the various residential areas of Chirk as described above and had a guided tour of the Kronospan factory. Over the course of the trial I heard from numerous witnesses of fact from the Claimants’ side and numerous witnesses of fact from Kronospan’s side. Some witnesses were not called by both sides, including some of the lead Claimants, despite their having produced witness statements, and I will address these in the course of my review of the factual evidence.[20]I also note at this stage that I did not hear any evidence from any past or present employees of Wrexham County Borough Council (“WCBC”Glo) or the Environment Agency (now Natural Resources Wales (“NRW”Glo)), notwithstanding that both have been closely involved in the regulation of Kronospan’s activities over the years. In particular, I should mention Mr Nick Minshall, who was employed by WCBC as a pollution control officer and directly involved in WCBC’s regulatory activities, including investigating the complaints made about Kronospan’s activities. He was also an attendee at the regular meetings of the Chirk Environmental Liaison Committee (“CELG”Glo), a committee including representatives from WCBC, Chirk Town Council and Kronospan. It was initially set up in 2009 “to discuss and review environmental issues with Chirk residents”.[21]There is no basis for my drawing adverse inferences against either party as regards the absence of such evidence, since both could have called Mr Minshall or similar witnesses assuming – as to which I have no evidence either way - they were available. I also bear in mind that what these individuals did, or did not do, is the subject of extensive documentary record anyway. Insofar as Kronospan suggested that I should place little or no weight on the contemporaneous documents generated by Mr Minshall because he was not called as a witness by the Claimants, I do not accept that submission. There is nothing in Kronospan’s own evidence which reveals that there were any significant disputes at the time between WCBC and Kronospan about what Mr Minshall was asserting in correspondence. There is no indication from the evidence that he had any particular bias against Kronospan. Indeed, and to the contrary, at times frustration was expressed by the Claimants and other local residents at what they believed was undue deference shown to Kronospan, as a substantial local business and employer, by WCBC, NRW and local politicians.[22]Nonetheless, I cannot speculate about what Mr Minshall might have said had he been called as a witness, save insofar as is properly the subject of reasonable inference from his contemporaneous documentation. So far as the most important contemporaneous documentary records are concerned, they include the following.[23]First, the correspondence passing between Kronospan and WCBC, most of it between Mr Baker for Kronospan as its environmental manager and Mr Minshall for WCBC. The tenor of the correspondence is entirely professional and very rarely at all confrontational.[24]Residents Hotline Reports (“RHRs”Glo). These are internal reports compiled by Kronospan from complaints made to it by residents, either directly or via WCBC, about problems said to have been caused by Kronospan’s activities, principally about dust but also about noise and odour. They have a standard format, giving the details of the complainant, of the complaint made, the prevailing weather conditions, the identity of the person who investigated the complaint and the results of their investigations, the root cause identified (where that could be ascertained) and any specified preventive action or response. There are around 475 separate RHRs from 19.1.11 to the end of the relevant claim period in relation to dust, a much smaller number in relation to noise and a yet smaller number still in relation to odour and they are summarised in a spreadsheet.[25]Although issues are raised by Kronospan as to the reliability of individual complaints and whether or not Kronospan’s conclusions are necessarily to be taken at face value – which I will address later - they are, on any view, a valuable source of contemporaneous data.[26]Second, internal incident reports produced by Kronospan from 19 January 2011 onwards, later re-named Environmental Incident Reporting Forms (“EIRFs”Glo), which are summarised in a separate spreadsheet. These are internal reports which were required to be produced by Kronospan in relation to the four categories of incident specified in condition five of the environmental permit in place over the relevant claim period (discussed later).[27]These, in summary, include the detection of any fugitive emission or malfunction, breakdown, failure or accident which has caused or may cause or may have the potential to cause pollution off site. The form requires the investigator to record the details of the incident, including whether or not there was an off-site impact.[28]Nonetheless, as Kronospan emphasises, it does not follow that the issue of an EIRF is to be equated with a breach of its permit conditions or otherwise with any default, negligent or otherwise, by Kronospan. That is because many are consequences of the failsafe devices built into the safety systems, such as where the detection of sparks in a drier leads to emissions being directed to an emergency stack and vented to atmosphere, to avoid the risk of a far more serious fire incident.[29]As Kronospan also emphasises, it also does not follow that the fact that an incident is recorded means that it has resulted in emissions dispersing beyond the Kronospan site boundary, let alone that they have done so in such a way as to cause nuisance levels of emissions. They also cover emissions of any substances, for example of foul water, not just dust, odour and noise.[30]It follows, I agree, that it cannot be said that these EIRFs are either evidence in themselves of a substantial number of dust emissions onto the residential areas of Chirk within the relevant claim period or evidence of a lack of care by Kronospan in the conduct of its business so as to minimise such dust emissions.[31]No detailed analysis has been undertaken as to the total number of EIRFs in each year of the relevant claim period or how many in each year record any off-site impact, let alone the extent of such impact. The only analysis undertaken appears to be that which has resulted in the dust dispersion modelling experts having identified and applied a total of 275 such unplanned emissions in their exercise.[32]Nor has any detailed cross-analysis been undertaken to seek to identify the extent of any correlation between the EIRFs, especially those which record an off-site impact, and the RHRs. In its written opening submissions the Claimants complained that the EIRFs did not generally record the detection of any fugitive emissions, as opposed to unplanned emissions, and they also complained that not all of these EIRFs were also notified to WCBC, as the permit required. It appears from Mr Baker’s cross-examination that Kronospan did not complete EIRFs whenever there was a log-yard emission event, only when there was an unplanned emission, which may explain why there are fewer EIRFs than RHRs.[33]There undoubtedly were 29 Schedule 1 Notifications of Abnormal Emissions (“Schedule 1 Notifications”). These are so called because, under Schedule 1 of the environmental permit issued by WCBC, Kronospan was required to give particulars of unplanned emissions, including a best estimate of the quantity or rate of emissions and the time during which they took place.[34]Counsel also produced a very helpful agreed chronology of relevant events. The Claimants’ counsel produced as (an updated) Appendix Two to their written closing submissions a more detailed chronology, drawing together key facts from Kronospan’s contemporaneous documentation and other relevant documents.[35]The importance of the contemporaneous documentation reflects the fact that in a case such as this, where the factual witnesses are being asked to recall events going back over a long period, and where there is (generally) a stark divergence of evidence as between the Claimants and their witnesses on the one hand and Kronospan’s witnesses on the other as to the nature and extent of the dust, odour and noise emissions the subject of this case, it is necessary for me as the judge to pay close attention to the contemporaneous documents (to the extent that they can be considered reliable) as a good indicator of what was actually happening at the time insofar as perceived by the parties and others.[36]In this regard I refer and adopt with gratitude the observations of Cockerill J in Jaffe v Greybull CapitalLLP [2024] EWHC 2534 (Comm) at paragraphs 195 to 201, where she made reference to cases frequently cited in this context, such as Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) and Simetra Global Assets Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413 [2019] 4 WLR 112, as well as to a lecture given by Sir Andrew Popplewell to COMBAR in 2023, entitled “Judging Truth from Memory”. These are all pertinent to the current approach to fact-finding, especially in Business and Property Court cases, in relation to the importance to be placed on the contemporaneous documents and the approach to be taken to the reliability of witness recollection. I nonetheless bear in mind that the approach suggested in cases such as Gestmin and Simetra does not relieve the court of the need to make factual findings based on all of the evidence and, in particular, if the sworn evidence of a witness is to disbelieved, why that is so. I also bear in mind that the same approach should not necessarily apply with full force in non-commercial cases, where it is not to be expected that all of the detailed interactions would be recorded in documents: Martin v Kogan [2019] EWCA Civ 1645 at paragraphs 88 and 89 (Floyd LJ, giving the judgment of the court). This is a case where all of these considerations apply to greater or lesser extent.[37]After completing the factual evidence I heard evidence from four experts, two for the Claimants and two for Kronospan, following which there was then a pre-arranged pause for the preparation of written closing submissions, with the final trial phase being the delivery of oral closing submissions over two final days.[38]The expert evidence dealt with the issues of:(a) dust monitoring;(b) dust dispersion modelling; and(c) dust characterisation. The Claimants’ experts were Ms Penny Wilson, who addressed issues (a) and (b), and Dr Lorna Anguilano, who addressed issue (c). Kronospan’s experts were Dr Hugh Datson, who addressed issues (a) and (c), and Dr David Carruthers, who addressed issue (b). This coverage mis-match was a little unusual, but happened to reflect the particular fields of expertise of the individual experts in these somewhat esoteric specialist areas.[39]Dust monitoring data has been obtained from various dust collection devices in the community at various stages and in various ways from 2016 until 2020 (and beyond) and has been extensively analysed in the expert reports. In simple terms, the data bears on the quantity and frequency of dust emissions at various locations in the vicinity of the site, including the extent of any correlation with wind direction and speed and any correlation with complaints about dust soiling from the community. As indicated, these issues were addressed by Ms Wilson and Dr Datson in their reports and in their joint statement dated 17 February 2023.[40]Dust characterisation relates to the microscopic examination of dust particles taken from the factory and from the local community in 2017-2018. This involves the use of Scanning Electron Microscopy (“SEM”Glo), SEM-Electron Dispersive X-ray (“SEM-EDX”Glo) analysis and Optical Microscopy. This issue was addressed by Dr Datson and Dr Anguilano in their reports and in their joint statement made on 15 November 2021. They applied their expertise to the analysis of samples obtained on a joint basis by Dr Simon Romani of LPD Services, who reported by way of two written reports dated 19 July 2020 and 25 January 2021 respectively.[41]Dust. It is worth emphasising at this point that dust is a generic term which does not have any one definition, whether in law or in science. Dust particles may emanate from a wide number of natural and man-made sources and, thus, may comprise a wide variety of materials with very different chemical compositions, and may also range from very small particles, capable of being taken into a human respiratory system (and, hence, with their own particular health risks), to relatively large particles, for example wood fibres from raw materials delivered to Kronospan or from local trees or shrubs.[42]Dust particle size is usually measured by the size of its diameter in microns (µm). Particles under 10 µm (PM 10) and also under 2.5 µm (PM2.5) are of particular concern in human health terms and, as in this case, are often measured separately.[43]At any one time dust may be airborne or settled. When settled dust is picked up by wind and become airborne again it is referred to as having become wind-entrained.[44]The dust dispersion modelling exercise was carried out by Dr Carruthers and Ms Wilson, using data from the claim period, pursuant to an agreed methodology the subject of discussion and agreement between Dr Carruthers and Dr Gibson. On 13 March 2023 Ms Wilson and Dr Carruthers signed their joint statement on these issues.[45]There is no expert evidence in relation to the allegations of odour or noise.[46]In relation to the claims relating to dust, dust emissions from the Kronospan site fall into three broad categories:[47]Normal process emissions(also referred to as “stack emissions” - I shall mainly refer to them as“planned emissions”). These are anticipated emissions from the normal operating activities at the site and, as such, are governed by the relevant site operating permits. These emissions are not the primary subject of this claim, because it is not suggested that emissions due to normal operating conditions within the relevant permits are anything other than modest contributors to any nuisance levels of dust, odour and noise.[48]Unplanned emissions (also referred to as “abnormal emissions”, “process incident” emissions, “fallouts” or “blowouts” – I shall mainly refer to them as “unplanned emissions”). These are emissions due to abnormal events or the consequence of unplanned incidents occurring during the normal manufacturing processes which, say the Claimants, are then carried by the wind to the residential areas of Chirk. Kronospan says that few, if any, such emissions are carried outside its own site or to residential areas.[49]Exposed source emissions(also referred to as “fugitive” or “log-yard” or “non-event” dust emissions – I shall mainly refer to them as “log-yard emissions”). These are principally due to sources of dust in various parts of the log-yard and wider site area becoming airborne due to wind and then being carried by the wind, say the Claimants, to the residential areas of Chirk. These primarily comprise dust from stockpiles of raw materials, principally sawdust, wood chips and RCF, once delivered to site, either when dropped on site roads during the delivery, unloading and movement processes or during storage or initial processing. They may also include dust from unplanned emissions which has landed on various parts of the site. Again, however, Kronospan says that few, if any, such emissions are transmitted beyond its site boundary.[50]It is of course possible that an unplanned emission and a log-yard emission may occur at around the same time (as was recorded in one RHR from 2.9.13). This would be particularly likely if dust from unplanned emission landed on the site and, after landing, became wind-entrained due to high winds.[51]It is also important to note that dust may also be indirectly connected with the operation of the Kronospan site in two further broad categories:[52]First, dust particles from the Kronospan site may be carried only just over the site boundary and deposited, for example, on Holyhead Road, and then become re-suspended by winds or by road traffic and re-deposited in residential areas. It is, however, very difficult – and practically impossible in real terms - to ascertain to what extent, if at all, this has actually happened and what, if any, contribution it has made to any overall dust emissions.[53]It has been said that such dust particles may be dirtier in appearance than dust particles carried direct from site, due to their becoming mixed with dust particles from other sources. This, I accept, will typically have been the case. However, because RCF has a darker appearance than sawdust or wood chips, and because dust which has become wind-entrained from the site roads may also have a darker appearance, that is not necessarily a reliable way of differentiating between these different types of dust emission.[54]Second, dust particles, including larger fibres, from HGVs carrying wood materials to the Kronospan site may be deposited on Holyhead Road, especially during the braking and/or turning processes, where these particles may again become wind entrained and deposited in residential areas. There is some evidence to indicate that these initial deposits happened, including Kronospan’s decision to undertake voluntary regular cleaning of Holyhead Road at times and in response to complaints even though it lies outside the site boundary[55]However, there is no pleaded case that dust from such HGVs which, by definition, does not emanate from the site itself, is something for which Kronospan is legally responsible as owner of the site. In closing submissions, Kronospan’s counsel submitted that Kronospan cannot be legally responsible for any such deposits, in circumstances where the HGVs are operated by independent contractors, making deliveries to and from the site, rather than by Kronospan. On my reading of the authorities that may not necessarily be a fatal obstacle to liability but, in the absence of a pleaded case and factual and expert investigation into the extent and impact of any dust emissions by HGVs specifically serving Kronospan, which would practically have been impossible anyway, it is not possible for me to make any specific finding in such regard.[56]Other sources of dust. It is common ground that dust encountered in Chirk will come from other sources. These will be completely unrelated to Kronospan. One important category is dust particles emanating from vegetation, such as trees, shrubs and grasses, within Chirk or from the surrounding fields and woods, whether as pollen, seeds, broken up leaves or twigs or other similar materials. Another would be dust from exposed areas of earth, such as garden borders, which can become wind-entrained in the same way as dust from the Kronospan site. A further significant category is road transport related dust, including – as particularly relevant to this case – mineral particles due to erosion of the road surfaces through wear, rubber particles (“crumb”) from the wear of vehicle tyres, and metal particles from the wear of brake components. All of these can form - as is well known to those with knowledge of such matters - a surprisingly high proportion of dust in urban areas.[57]A further complication is that the dust particles which the Claimants say come from Kronospan are themselves derived from a variety of widely encountered wood-related products, mostly softwoods from local forestry suppliers, all of which have the same (or very similar) chemical compositions to softwood found elsewhere. It is very difficult, if not practically impossible, to differentiate by SEM-EDX testing dust particles from such sources with dust particles from trees, shrubs and other plants from within Chirk or its surrounding area. An attempt was made as part of the dust characterisation exercise to identify “signature” characteristics of dust particles emanating from the Kronospan site, but even Dr Datson does not suggest that this can confidently identify all such dust particles, only that they can confidently identify a limited number of very specific and unadulterated categories of dust particle.[58]The remainder of this judgment is divided into separate sections, including sections addressing the contemporaneous documentary evidence, the factual evidence and the witness evidence. I have set out my broad conclusions in relation to the factual evidence as a whole and separately in relation to the expert evidence in the sections dealing with each category of evidence and before I address the key issues of substantial interference, ordinary user and reasonable steps as well as all other liability issues and questions of damages For convenience, and given the outcome, I have provided my conclusions as to the damages I would have awarded to the lead Claimants had I found in their favour, in the section dealing with each of their evidence. .[59]I have divided my judgment into these sections, because otherwise it would have been very difficult to write and, probably, even more difficult to read. However, I emphasise that I have not attempted to reach final conclusions in relation to the factual witness evidence and the expert evidence in isolation from each other and from the contemporaneous documentation. My conclusions in relation to the factual witness evidence and the expert evidence take into account my conclusions in relation to the contemporaneous documentation and my conclusions in relation to the factual and the expert evidence are also inter-connected. In short, I have conducted a unitary exercise.[60]Having done so, my conclusion is that the claims made by each of the lead Claimants fail. They fail because, on my assessment of the evidence, I do not accept that the nature, extent, impact and frequency of the dust emissions suffered by them was sufficient to constitute a substantial interference with the enjoyment of their properties. I also do not accept that the odour or noise emissions came anywhere near amounting to a nuisance and, finally, I do not accept that any interference caused by dust, odour and noise emissions even agglomerated together amount to a nuisance.[61]Further, and in case I am wrong about all of the above, my other key conclusion is that only those Claimants living very close to the Kronospan site, just off Holyhead Road, in the North-East, East 1, East 2 and East 3 areas, could have been sufficiently affected by dust emissions from Kronospan to establish any claim in nuisance in relation to dust emissions, whether with or without the addition of odour and noise. Whilst it is impossible for me to draw a clear dividing line between those who could and those who could not complain, those on the right side of that line would be Mrs Green (as the most directly affected), Mrs Randle, Mr Heyward, Mrs (Sarah) Williams, Mr Jones and Mrs (Nina) Williams and – potentially – Mr Davies, and those on the wrong side of that line all of the others .[62]That line would have been drawn on the basis that:(a) they all live sufficiently close to the Kronospan site to have been at least potentially sufficiently affected by a combination of unplanned emissions and log-yard emissions; and(b) they would all, objectively, have thus been sufficiently affected to recover damages. I would only have excluded Mr Davies because he had stated so clearly in his oral evidence that he had not personally been affected at all by dust emissions. B. Relevant legal principles[63]A useful starting point for a trial judge is paragraph two of the judgment of Carnwath LJ in a group odour nuisance case, Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312, where he suggested that “such cases conventionally turn on issues of fact, to be decided in accordance with well settled principles of law”.[64]In the hope and belief that this is a such a conventional case, I limit my legal analysis to:(a) seeking to identify and summarise the key legal principles which are relevant to this case, drawing upon the recent exposition by Lord Leggatt JSC Lord Reed PSC and Lord Lloyd-Jones JSC agreed with Lord Leggatt. Lords Sales and Kitchin JSC dissented in the result but,as I read their judgment,not on the basis of any significant disagreement as to the principles to be applied insofar as relevant to this case. in Fearn v Tate Gallery [2023] UKSC 4; and(b) resolving, so far as necessary, any legal disputes which do or may make a difference in this case.[65]In section B of his judgment in Fearn Lord Leggatt set out a summary of the relevant core principles of the common law of private nuisance. I will refer only to such parts which identify principles of particular relevance to this case.[66]The subject matter of nuisance is wrongful interference with the claimant’s enjoyment of rights over land, the harm protected against being diminution in the utility and amenity value of the claimant’s land, and not personal discomfort to the persons who are occupying it (paragraphs 10 and 11).[67]When it is said that to give rise to liability there must be unreasonable interference with the use and enjoyment of the claimant’s land, that is not in itself a legal standard or test which introduces an overriding and free-ranging assessment by the court of the respective reasonableness of each party in the light of all the facts and circumstances. Instead, the requirements of the common law as to what a claimant must prove, and what will constitute a good defence, themselves represent in the round the law’s assessment of what is and is not unreasonable conduct sufficient to give rise to a legal remedy (paragraphs 18-20).[68]The first key requirement is that the defendant’s use of land has caused a substantial interference with the ordinary use of the claimant’s land (paragraph 21). Substantial means that it exceeds a minimum level of seriousness to justify the court’s intervention and this is to be assessed objectively, judged by the standards of an ordinary or average person in the claimant’s position (paragraphs 22-23).[69]The second key requirement is that even where the defendant’s activity substantially interferes with the ordinary use and enjoyment of the claimant’s land, it will not give rise to liability if the activity is itself no more than an ordinary use of the defendant’s own land (paragraphs 24-28).[70]This is what is meant by reasonable user of the defendant’s land and, if its user is not an ordinary user, then it is not a defence for the defendant to say that it was using its land reasonably (paragraphs 29-33).[71]Ordinary user includes the freedom to build and repair, so long as all reasonable and proper steps are taken to ensure that no undue inconvenience is caused to neighbours (paragraph 37). This principle applies more generally. As Lord Neuberger PSC said in Lawrence v Fen Tigers [2014] AC 822 (at paragraph 76, agreeing with Lord Carnwath JSC at paragraph 185), even if a defendant is entitled to emit a noise he is still under an obligation to take all reasonable steps to ensure that the noise is kept to a reasonable minimum.[72]What is an ordinary user is to be judged having regard to the character of the locality (paragraph 38).[73]A right to commit a nuisance can be acquired by prescription, but that requires the claimant to have acquiesced in an actionable wrong for a prescribed period of time, which cannot occur unless and until a nuisance first occurred (paragraph 39).[74]Coming to a nuisance is no defence (paragraph 52). This point is irrelevant in the present case, since even although individual claimants may have purchased their houses after Kronospan was – on their case – already committing a nuisance, none of the claimants is said to have changed the use of their houses in such a way that Kronospan’s user of the factory caused a nuisance whereas previously it did not.[75]It is not a defence to a claim for nuisance that the activity carried on by the defendant is of public benefit (paragraph 47), save in relation to the question of remedy (see paragraphs 114 to 120). Of note in this case is the observation at paragraph 119 that: “Industrial activities which cause atmospheric pollution to neighbouring land may have substantial economic importance including for those employed in the undertaking. These are classic cases falling within the scope of the law of nuisance. The difficulties of reconciling the different public and private interests involved in such cases have not been treated as a reason for the courts to abstain from granting any remedy for violations of private rights in respect of land use, and instead to leave such matters to the planning system or the legislature. And rightly so. The result of such abstinence would in practice simply be to leave the rights of individuals without any effective protection”.[76]Other particular observations of relevance to this case include the helpful practical guidance in paragraph 108 that where there is no scientific test which a judge can apply, or more specific legal guidance which an appellate court can give, then in order to identify where the line should be drawn the court has to make a judgment about whether the nature and degree of interference exceeds what an ordinary person would regard as acceptable. It is also suggested that in practice courts may seek to make allowance for variations in normal human reactions by building a margin into their assessment and requiring quite a high level of interference before finding an interference with the ordinary use of property to be sufficiently serious to amount to a nuisance.[77]As to reliance on planning permission, protection by planning laws is not a substitute or an alternative for the protection provided by the law of nuisance and, short of express or implied statutory authority to commit a nuisance (which is not asserted here) - there is no basis for using the planning scheme to cut down private law rights (paragraph 110).[78]This is not to say that compliance or otherwise with planning law is irrelevant. This was addressed by the Supreme Court in Lawrence. I refer to the discussion in the judgment of Lord Neuberger (with which Lords Sumption, Mance and Clarke expressly agreed There were some differences in relation to what Lord Mance referred to as the “wider issues” which were addressed, but save as identified in this judgment these are not relevant for the purposes of this case. ) at paragraphs 77 to 99.[79]As relevant to this case, in paragraph 82 he said that the implementation of planning permission can give rise to a change in the character of a location but not if it results in the creation of a nuisance.[80]In paragraph 96, he acknowledged that the terms of a planning permission could be of relevance. He gave the example of a condition limiting noise to a limited level in a particular locality as providing a starting point for the determination of whether noise falling under or over that level does or does not amount to a nuisance.[81]Although not expressly considered in Lawrence, the same principles would appear to apply to environmental regulation: see Barr v Biffa Waste Services [2013] QB 455, referred to by Lord Neuberger at paragraph 92. I note however for completeness that in his judgment in Lawrence Lord Carnwath suggested (paragraphs 197 - 198) that in the light of academic observations since Barr v Biffa the application of the principles applicable to planning law to environmental regulation might need further consideration and, in particular, that a more nuanced approach might be needed depending on the particular regulatory process involved.[82]For present purposes, however, it seems to me that I must and should follow Barr v Biffa and Lawrence and proceed on the basis that:(a) environmental regulatory conditions may, in an individual case, provide a starting point as to the where the dividing line lies between emissions which do and do not amount to a nuisance; and(b) it is open to a defendant to plead and prove compliance with such regulations if he seeks to rely on them as evidence of the reasonableness of his operation. The locality principle[83]This issue was identified in submissions as being of some potential significance to this case and, thus, needs a little more elaboration and consideration. In Fearn Lord Leggatt referred to the well-known decision of the Court of Appeal in Sturges v Bridgman (1879) 11 Ch D 852 , 865, in which Thesiger LJ said that whether something is a nuisance “is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances” and, famously, that “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. Lord Leggatt emphasised that this did not mean that the inhabitants of a smart residential area were entitled to greater protection from the law than those of a mixed area with less expensive housing and greater industrial activities. Instead, as stated in Sturges, it meant that where a particular activity was carried on in a particular locality and in a particular established manner, then that would not amount to a nuisance.[84]In Lawrence Lord Neuberger stated that the assessment of the character of the locality was “a classic issue of fact and judgment for the [trial] judge” (paragraph 59). He also suggested that a better (and less monolithic) description was “the established pattern of uses” (paragraph 60). As to this, he accepted that the starting point was to include the defendant’s existing activities (paragraph 63), save that insofar as they amounted to a nuisance they should be left out of account (paragraph 65), unless the defendant had acquired a prescriptive right to commit such a nuisance (paragraph 69). He acknowledged that this approach involved an element of circularity, but:(a) expressed confidence that this should not cause real problems or difficulty in practice (paragraph 71); and(b) stated that, where this element of circularity did arise, the court might have to go through an iterative process when considering what noise levels are acceptable when assessing the character of the locality and assessing what constitutes a nuisance” (paragraph 72). In paragraph 74 he emphasised that if the defendant’s activities could not be carried out without causing a nuisance then they should be entirely discounted for this purpose.[85]In his judgment in Lawrence Lord Carnwath reached the same conclusion, although he observed that in none of the cases which he had considered had it been thought necessary to undertake an iterative process of the kind suggested by Lord Neuberger. Instead, he suggested that in those cases “the judges [had] proceeded on the basis that a change in the intensity or character of an existing activity may result in a nuisance, no less than the introduction of a new activity” and that “it [is] a matter for the judge, as an issue of fact and degree, to establish the limits of the acceptable, and if appropriate to make an order by reference to the limits so defined” (paragraph 190).[86]Both agreed that, even where a defendant was allowed to rely on his existing activities, that would only be so where it had taken all reasonable steps to keep the disturbance below a reasonable minimum (paragraphs 76 and 185).[87]In paragraph 164 Lord Mance said that:
“With or without planning permission, the character of an area may be susceptible over time to gradual change and development. Each step in the process may be said by itself to fit with the existing character and be largely imperceptible, though, ultimately, the difference resulting from the totality of all the steps may be considerable. In the meantime, those occupying property, living or working, in the area, will have had time to adapt. That is a quite different process from one brought about by an activity increased in intensity or introduced for the first time and bringing about a radical change over a relatively short period. In the latter case and to the extent that the increased or new activity goes beyond anything which would fit with the existing character of the locality, an aggrieved occupier can have cause for complaint about a resulting nuisance, unless and until the increased or new activity is allowed to continue as a nuisance either for 20 years without proceedings being issued or by a court by refusal of an injunction.”
[88]Both Lords Neuberger and Carnwath proceeded on the basis that the normal course would be for trial judges to resolve such issues by concentrating on the particular facts and issues in the case before them. Lord Neuberger made plain that it would only be in exceptional circumstances that it would be necessary to undertake the iterative process which he suggested.[89]In my judgment, the judgment of Lord Mance is consistent with the approach of Lord Neuberger and Lord Carnwath (neither of whom disagreed with any part of his judgment), in that it makes clear that:(a) gradual changes or modest developments over a lengthy time period which are each compatible with the existing character of the locality will not amount to a nuisance and will result in a change in the established pattern of uses of the locality even if one could say, looking back and comparing the start and the end point, that collectively they have resulted in a considerable change in the character of the locality;(b) by comparison, intense increases in activity or radical new developments which result in a nuisance will not be taken as having changed the established pattern of uses of the locality unless sanctioned in law, either by prescription or by judicial refusal to grant an injunction.[90]This analysis is relevant to this case. Although Mr Hart KC argued in oral opening submissions that paragraph 185 of Lord Carnwath’s judgment, which gave the example of noise nuisance from a major football stadium, was inconsistent with the gradual or limited intensification approach identified by Lord Mance, for my part I do not consider that Lord Carnwath was addressing that particular point in paragraph 185 or elsewhere in his judgment (other than in paragraph 190, as noted above) and nor, on my reading of paragraph 76, did Lord Neuberger consider that he was doing so.[91]As Mr Kent KC put it in his oral opening submissions, in my view the correct analysis is that it would not have been possible for local residents to complain in 2011 about dust, odour and noise emitted from Kronospan’s factory, or the impact of HGVs and other vehicles visiting the factory, on the simple basis that before 1971 it was farmland whereas by 2011 it had become a substantial factory, even though the overall change from the position in 1971 to the position in 2011 had happened by a series of incremental events. Instead, they would have to identify individual developments or intense increases in activity within that period, which themselves amounted to a nuisance in legal terms, and about which they could still complain, in order to show that the established pattern of uses had not changed so as to include these new uses.[92]Applying this approach to this case, I need to consider whether or not the consequences of each stage in the expansion of Kronospan’s activities over the 40 year period between Kronospan’s acquisition of the site and the start of the relevant claim period did or did not result in a position which was so significantly different, in nature and extent, from the position as it stood immediately before that stage of expansion that it amounted to a nuisance. If it did not, then it should be included in the established pattern of uses in Chirk as at 2011. If it did, then - subject to any question of prescription - it should not be included.[93]In considering this question, I need to have regard to all relevant factors, which would include the undisputed facts that each of the expansions were sanctioned by the relevant planning authority and were subject to regulation by the relevant environmental authorities, with no enforcement proceedings ever having been brought on the basis that the permissions or the permits had been seriously or persistently breached Kronospan acknowledge that a warning letter was issued by NRW on 13/6/16 in relation to a formalin plant gas release on 20/10/15 which, however, is of no direct relevance to this case. .[94]In that respect, and unsurprisingly, given his pre-eminent background in planning law, Lord Carnwath devoted some attention to the relevance of the planning and regulatory regime, whilst emphasising (in paragraph 178) that he agreed with Lord Neuberger’s overall conclusions, including those identified above. Referring to planning and other regulatory controls, he suggested that “after more than 60 years of modern planning and environmental controls, it is not unreasonable to start from the presumption that the established pattern of uses generally represents society’s view of the appropriate balance of uses in a particular area, taking account both of the social needs of the area and of the maintenance of an acceptable environment for its occupants. The common law of nuisance is there to provide a residual control to ensure that new or intensified activities do not need lead to conditions which, within that pattern, go beyond what a normal person should be expected to put up with” (paragraph 183). He considered that in this way questions of public benefit could, properly and consistently with previous authority, be taken into account (paragraphs 184-186).[95]In his view, this provided a justification for his suggested approach in paragraph 226, which was that:
“Where the evidence shows that a set of conditions has been carefully designed to represent the authority’s view of a fair balance, there may be much to be said for the parties and their experts adopting that as a starting point for their own consideration. It is not binding on the judge, of course, but it may help to bring some order to the debate. However, if the defendant seeks to rely on compliance with such criteria as evidence of the reasonableness of his operation, I would put the onus on him to show compliance: see by analogy Manchester Corpn v Farnworth [1930] AC 171, relating to the onus on the defendant to prove reasonable diligence under a private Act. By contrast, evidence of failure to comply with such conditions, while not determinative, may reinforce the case for a finding of nuisance under the reasonableness test.”
[96]I turn to address shortly some further points of law which either arise as between the parties or which I need to address. Liability for isolated incidents[97]At paragraph 3(e) of their opening submissions Kronospan contended that, unless covered by the principle in Rylands v Fletcher, isolated incidents causing temporary interference do not give rise to a claim in private nuisance, nor does intermittent interference if, on an objective evaluation, they are not regular enough to be regarded as substantially interfering with the amenities of the claimant’s land.[98]Mr Hart confirmed in oral opening submissions that the Claimants were not contending that this was a Rylands v Fletcher case, not surprisingly given that this is not – as I have said - a case where it is said that the dust or odour was toxic or otherwise harmful to health or that the noise was at such a level to harm health either.[99]I do not consider that these propositions amount to anything other than illustrations of the general principle that an interference must be substantial to amount to a nuisance. There is no general principle that a substantial interference arising from an isolated incident cannot amount to a nuisance unless it falls within the principle of Rylands v Fletcher and the cases cited by Kronospan in this sub-paragraph do not suggest that there is. Reasonable user as a defence?[100]Despite recognising the difference in paragraph 3 of their opening submissions, Kronospan appear to suggest at paragraph 4 onwards that the principle of reasonable user in itself affords a defendant a defence to a claim in nuisance. In my judgment it does not. It is the principle of ordinary user which affords the defence.[101]However, as noted above, even where there has been ordinary user, there will still be liability for nuisance where the defendant has not complied with his obligation to take all reasonable steps to ensure that the nuisance is kept to a reasonable minimum (see Lord Leggatt in Fearn at paragraphs 29-33, and Lords Neuberger and Carnwath in Lawrence at paragraphs 76 and 185 respectively, all as referred to above).[102]It is only in this context that the question of reasonable user and, in particular, compliance with BAT arises. As Carnwath LJ (as he then still was) concluded in Barr at paragraph 76: “This does not mean that the terms of any permission or permit are irrelevant. An activity which is conducted in contravention of planning or environmental controls is unlikely to be reasonable. But the converse does not follow. Sticking to the rules is an aspect of good neighbourliness, but it is far from the whole story, in law as in life”.[103]In his oral opening submissions Mr Hart similarly transgressed this principle, if I may say so, when he suggested that any emission in breach of a permit was unlawful and, hence constituted a nuisance both in private and public law. As is made clear from the above authorities, emissions in breach of a permit do not in themselves amount to a nuisance. That the emissions in question have amounted to a breach of a relevant permit may be a helpful starting point when the court has to consider whether or not the emissions amount to a nuisance, but that is not the end of the enquiry.[104]In written and oral opening submissions Kronospan submitted that since the environmental regulatory regime is intended, by reference to BAT, to drive up environmental standards, adoption of BAT will almost certainly mean that Kronospan would be doing a lot better than the standard which would be imposed by a court under the law of nuisance.[105]Whilst it is true, as I have noted above, that compliance with environmental conditions is a good starting point when considering whether or not Kronospan’s activities amount to a nuisance, it is not the end point. As the judges in Barr, Lawrence and Fearns were at pains to emphasise, there may be cases where, despite having taken all viable steps to prevent or minimise a nuisance, the impact of activities of the operator nonetheless amount to a nuisance in law against neighbouring occupiers. If that is the case, then in the absence of a defence of statutory authorisation the law of nuisance provides a residual control mechanism which neighbouring occupiers can use to seek and obtain either an injunction, or damages, or both. Public nuisance[106]The legal principles relating to public nuisance are conveniently summarised in Clerk & Lindsell on Torts 24th ed. at 19-03, with examples given at 19-04. I have also found very helpful the analysis by David Steel J in Colour Quest Limitedv Total Downstream UK plc [2009] EWHC 540 (Comm) (the Buncefield explosion case) at paragraphs 426-434 (the later appeal did not concern this point).[107]I did not need to deal further with this point, since on my findings nothing turns on the difference between the claims in private and public nuisance, given that the only issue on which it might make a difference relates to prescription. Prescription[108]In its Generic Defence Kronospan pleaded its factual case as to the locality of Chirk and the development of the site and pleaded that there was no actionable nuisance on (amongst other things) the basis of prescription.[109]In paragraph 13 it pleaded that “to the extent that the Defendant’s operations at the site have increased over some 45 years this development has been gradual and never sudden so as to increase in intensity or change the industrial processes over a relatively short period”.[110]In the same paragraph it reserved the right to contend that “if (which is denied) the operations of the plant currently constitute a nuisance the same must have been the case for at least 20 years because any environmental impact of the Defendant’s operations at the Site taken as a whole have not worsened but on the contrary have gradually improved over that period: the Defendant would in those circumstances have acquired an easement by prescription over such claimant’s property”.[111]In its Generic Reply the Claimants:(a) noted that “a ‘gradual’ increase in operations which has ‘never [been] sudden’ may also constitute an intensification”; and(b) as regards the claim for prescription, pleaded a number of points in response, including a case that complaints made since about 1988 have the effect of defeating any such claim, as well as a separate case that the law does not recognise a prescriptive right to perpetuate a public nuisance. It is, I think, reasonably implicit in the wording of the Reply that the Claimants were contending that emissions amounting to pollution have been present since at least 1988.[112]The Claimants’ Requests for Further Information said that they understood from Kronospan’s pleaded case that it was arguing that there had never been any intensification since the early 1970’s such as to constitute an actionable nuisance, that this would be disputed at trial and, on that basis, asked for information about the changes in the site since that time (which were substantially answered) and also about the contingent prescription defence. As to that, Kronospan’s response was that if the court found a nuisance had existed within the claim period, then it must have done so for at least 20 years before the commencement of proceedings (in 2017).[113]It seems to me that what I must do, when reaching determinations in this case in relation to the existing character and established pattern of use, is to consider – as necessary – whether or not Kronospan’s activities pre-dating July 2011 amounted to a nuisance.[114]If I had found that Kronospan did commit a nuisance over the relevant claim period, then I would have needed to consider and determine Kronospan’s claim of prescription in relation to that point.[115]To anticipate, given my conclusions as set out below, I am satisfied that by the beginning of 2000 Kronospan’s activities had reached a point where they remained substantially unchanged until around the beginning of 2019 (i.e. after the current claim was issued). On that basis, if I had found that Kronospan had committed a nuisance throughout the relevant claim period I would also have found that there was no material difference going back to the beginning of 2000.[116]Given that to succeed in a plea of prescription Kronospan would need to show 20 years uninterrupted use as of right running back from the beginning of the relevant claim period in 2011, it is apparent from my factual findings that it is unable to do so. In the circumstances, this defence would have failed on any basis and I would not have needed to go further.[117]However, and for completeness, if I had needed to consider public nuisance I would not have been satisfied that the nuisance amounted to a public nuisance because, on the evidence, the impact of any dust, odour and noise emissions from Kronospan does not affect the residents of Chirk generally, or in a widespread or indiscriminate way: per Denning LJ in Attorney-General v P. Y. A. Quarries Ltd [1957] 2 Q.B. 169 CA at 190-191.[118]Instead, even on the Claimants’ case, it affects a fairly ill-defined group of residents in different ways and at different times, depending on whether one is considering nuisance from unplanned emissions or from log-yard emissions and whether the wind is blowing from the south-west, west or north-west as well as on the relevant wind speeds. It also depends very much on where, relative to Kronospan, the Claimants’ respective properties lie, not just generally but at the time of each dust, odour and noise event. Causation[119]This was not the subject of specific legal submissions. However, it is necessary for me to make some reference to it, given the agreed evidence that dust particles in a town such as Chirk can come from a variety of sources, both organic and inorganic, and given my finding that on average around one half of the dust deposited at the Claimants’ properties will have come from sources other than Kronospan.[120]The general principles discussed in Clerk & Lindsell (see above) at chapter 2: “Causation and remoteness: general principles” are of general application in the law of nuisance.[121]However, as regards the relevance of the impact of dust particles from other sources, the position in nuisance is well explained in Clerk & Lindsell in chapter 9, nuisance, at 19-12, headed “character of neighbourhood”. In that paragraph, after referring to the case of Sturges v Bridgman already referred to, the editors say:
“Thesiger LJ does not mean, however, that a person who lives in, for example, a noisy neighbourhood can never complain of any additional noise. He can do so if an increased volume of noise is, judged by local standards, so substantial as considerably to detract from the standard of comfort previously prevailing”
. The editors continue:
“Thus, in Thomas v Merthyr Tydfil Car Auction Ltd [2013] EWCA Civ 815, claimants who lived near the defendants’ business were able to recover damages for nuisance by noise notwithstanding that they lived in an area where “there were business uses and busy roads nearby”
. In that case the Court of Appeal upheld the decision of the first instance judge on the basis that the question as to whether or not noise and disturbance from the defendant’s premises constituted a nuisance had to be judged by reference to the levels of noise and disturbance which were normal and accepted as such in the particular locality (paragraph 24).[122]In this case, therefore, if – as I find on the evidence:(a) each of the residential areas where the Claimants live is affected to an appreciable effect by dust from a variety of typical sources; and(b) those Claimants who live close to Holyhead Road are particularly and additionally impacted by dust particles emitted from the road, road vehicles and from wood pieces which have fallen from HGVs and been broken up by subsequent traffic, the question as to whether dust particles emitted from Kronospan have caused a nuisance has to be judged against these established levels of dust.[123]This question has to be determined in the context that I am satisfied that there will have been a wide variation in the causes of individual significant dust emission events at the individual Claimant’s properties.[124]I fully accept and find that there have been many occasions where particularly heavy unplanned emissions events and/or particularly heavy log-yard emissions events, both therefore from Kronospan, were the principal source of the dust which affected the properties. These are the occasions which the Claimants particularly remember and, as I find, wrongly believe were almost always the cause of significant dust emission events.[125]However, there will also have been many other occasions where dust emissions from Kronospan were at best only a modest contributor to the “background” dust affecting the properties. This will particularly have been the case at those frequent times of the year when trees, shrubs or other vegetation are shedding leaves, pollen etc in heavy quantities, or where hot, dry, windy conditions cause soil dust or other particles to become wind-entrained and also, and particularly close in those areas close to Holyhead Road, from road use, especially at times of particularly heavy traffic and particularly at times of heavy wood shedding from HGVs using that road, with consequential wind entrainment from particles broken down by the wheels of following traffic.[126]In these two categories of case it is relatively straightforward to conclude that the former are events for which Kronospan may be liable in nuisance (assuming that the frequency of these events justifies that conclusion), whereas the latter are not.[127]However, the further and potentially more difficult question arises as to whether Kronospan may also be liable for nuisance in cases where:(a) there is already a substantial quantity of background dust affecting a particular property or part area, but where dust emissions from Kronospan also make broadly equivalent contribution to the overall dust levels experienced at the individual property; and(b) without that additional contribution from Kronospan the degree of interference would not have been enough to amount to a nuisance dust level; but(c) equally, if it was not for the background dust the impact of the dust emissions from Kronospan would not cause a nuisance level by itself.[128]If in such a case I had to apply the general legal principles of causation in tort as summarised in Clerk & Lindsell in chapter two, then the position would appear to be that Kronospan would be liable in such cases, because:(i) the dust emissions from Kronospan cannot be eliminated, applying the “but for” test; and(ii) in any event, applying the approach supported by the majority of the UK Supreme Court in Financial Conduct Authority v Arch Insurance (UK) Ltd [2021] UKSC 1; [2021] A.C. 649, in situations where the damage could only be caused by a number of elements combining to do so “each individual contribution is reasonably capable of being regarded as a cause of the harm that occurs, even though it was neither necessary nor sufficient to cause the harm by itself”;(iii) further, especially in cases where the difficulty of attributing causes is a product of scientific uncertainty, “the claimant does not have to prove that the defendant’s breach of duty was the sole, or even the main, cause of his damage provided he can demonstrate that it made a material contribution to it”.[129]However, as the editors also note in the same chapter, in Kuwait Airways Corp v Iraq Airways Co [2002] UKHL 19; [2002] 2 A.C. 883 House of Lords) Lord Hoffmann stated that there is “no uniform causal requirement for liability in tort. Instead, there are varying causal requirements, depending upon the basis and purpose of liability. One cannot separate questions of liability from questions of causation. They are inextricably connected. One is never simply liable; one is always liable for something and the rules which determine what one is liable for are as much part of the substantive law as the rules which determine which acts give rise to liability”.[130]All cases are fact-sensitive, so that there is no need for me to seek to establish any applicable principle. In particular, I can see that there may be room for different approaches in cases where, for example, there is more than one polluter whose activities collectively amount to a substantial interference with the ordinary user of the claimant’s property. However, in this case what I am concerned with is a number of instances where a significant quantity of background dust, about which the property owner can have no complaint against Kronospan or anyone else, combines with a significant quantity of dust from Kronospan which, together have a significant impact on the claimant’s property, but would not do so by themselves.[131]In this case, where I am satisfied that there is this relatively constant background level of dust about which a claimant cannot complain and which is part of the established pattern of uses in the locality, in my judgment it would be contrary to the fundamental principles of the law of nuisance to say that a defendant could be liable for nuisance if the combination of that background effect and the impact from the defendant’s activities cumulatively amounted to a substantial interference with his ordinary user of his property, whereas without that background effect the impact from the defendant’s activities would not have done so.[132]This is on the basis that, in accordance with paragraph 21 of Fearn, the first key requirement of liability in nuisance is that the defendant’s use of land has caused a substantial interference with the ordinary use of the claimant’s land. It would in my judgment be contrary to principle to hold a defendant liable where the substantial interference is due to a combination of background factors and emissions from the defendant’s land. In my judgment it is necessary to show that the principal cause of the substantial interference is the emissions from the defendant’s land.[133]I can see that it might be argued that there is no need for this limitation on liability for nuisance, because the defence of ordinary user provides a sufficient defence in such cases anyway. However in my judgment the defence of ordinary use is directed to a separate question, which only becomes relevant if and when it is shown that the principal cause of the substantial interference with the claimant’s use of his property is the defendant’s user of his land.[134]Although the same analysis also applies in principle in relation to odour and noise, on the facts that is not a relevant issue. Thus, although in relation to odours there is widespread evidence that, in addition to the usual odours emitted by a variety of sources in a reasonably busy town such as Chirk, such as – for example - fumes from traffic using Holyhead Road, there has also always been a distinctive smell from roasting cocoa beans from the Mondelez factory, it is not suggested by anyone that it is the combined impact of such odours which causes a nuisance. The odour complained of is directly attributed to Kronospan and there is no evidence or basis for finding that any substantial interference due to odour could have been caused by a combination of causes. In relation to noise, although in addition to the general background noise there is also loud noise from HGVs using Holyhead Road, which serve Kronospan, but not exclusively so, there is no evidence or basis for finding that any substantial interference due to noise could have been caused by a combination of causes.[135]The same point is also separately relevant in relation to the causation and quantification of damages, on the basis that if any house or car owner would have to clean their windows or garden furniture or cars anyway due to dust from the usual variety of sources, any damages – general or special – should be measured by reference to the additional impact of dust particles from Kronospan on that normal pattern of behaviour. Damages[136]That brings me, finally, to the assessment of damages.[137]Given my conclusions I do not need to devote any significant time or attention to this question.[138]I need only record that I was referred by respective counsel to, and have read, authorities relevant to the assessment of damages in nuisance cases of some similarity to the present.[139]I limit myself to referring to the decision of HHJ McKenna (sitting as a High Court Judge) in Anslow v. Norton Aluminium Ltd [2012] EWHC 2610.[140]Judge McKenna helpfully began his consideration of damages by referring to the statements of principle from the Court of Appeal in Dobson and others v. Thames Water Utilities Limited (No. 1) [2009] EWCA Civ 28 (pars 31-35) and from Ramsey J at first instance [2007] EWHC 2021 (TCC) (pars 179-188), which make clear that:(a) damages in nuisance are for injury to the property and not to the sensibilities of the occupier(s);(b) even in loss of amenity cases (such as the present) damages in nuisance are for compensation for the diminution in the amenity value of the property; but(c) nonetheless, the actual impact on the occupiers will be a relevant factor in assessing general damages for loss of amenity.[141]Judge McKenna also referred to the aircraft noise case of Dennis v. MOD [2003] EWHC 793, the well-known decision of Buckley J to which I was also referred by Mr Hart and Mr Henderson. It is helpful in terms in terms of suggesting a useful reality check when assessing damages in loss of amenity nuisance cases, because Buckley J compared his award of £3,300 odd p.a. to the cost of a “decent holiday”. Of course the choice of comparator will depend on the individual facts; that was a case where aircraft noise from a nearby RAF Harrier jump jet training centre had made the undisturbed occupation of the claimant’s house intolerable for much of the time.[142]In the Norton case, where Judge McKenna awarded damages on the basis of nuisance by phenolic and sulphurous odours from an iron foundry over a period of some 7 years, the worst affected received £2,000 p.a. and the least affected (moderately offensive odours) £750 p.a. (£3,664 and £1,374 respectively when adjusted to current values).[143]These authorities also make clear that these awards are per property, so that other Claimants who co-own and co-occupy properties owned by lead Claimants would not be entitled to bring any further separate claim for damages separate and distinct from any which I would have awarded to the lead Claimants. C. The relevant regulatory regime[144]It is necessary only to summarise the relevant regulatory regime. I shall refer to the more detailed terms of the relevant permits later in this judgment.[145]The environmental regulatory regime applicable to the Kronospan factory since 1994 was summarised in its opening skeleton. For present purposes it suffices to say that its relevant operations were subject to control by environmental permits which, from 1999, applied the EU concept of BAT.[146]The concept of BAT appears from the Industrial Emissions Directive on Integrated Pollution Prevention and Control 2010/75/EU (“the Emissions Directive”).[147]Art. 3 of the Emissions Directive contains a number of relevant definitions. For present purposes BAT is defined to mean “the most effective and advanced stage in the development of activities and their methods of operation which indicates the practical suitability of particular techniques for providing the basis for emission limit values and other permit conditions designed to prevent and, where that is not practicable, to reduce emissions and the impact on the environment as a whole”.[148]The Emissions Directive also provides for the provision of BAT reference documents (“BREF” Glo). The BREF relevant to this case is that relating to the production of wood-based panels issued in 2016. It is a substantial document. Sensibly, it includes a more manageable 18 page BAT conclusions section, which summarises and describes the best available techniques and the information to be used to assess (amongst other things) their applicability and the emission levels associated with the best available techniques.[149]Annex III of the Directive provides criteria for determining best available techniques which include the nature, effects and volume of the emissions concerned.[150]According to Mr Kaindl:(i) operators within the EU were allowed until 2019 to comply with the requirements of BREF; and(ii) Kronospan’s Chirk factory had already achieved broad compliance with BREF by the date of his witness statement in November 2018. The Claimants have not challenged this evidence. D. The character and established pattern of estimated uses of Chirk in the pre-claim period[151]On the basis of the legal principles discussed above, it is important to determine the character and established pattern of uses in Chirk as it was in the period leading up to the start of the relevant claim period in July 2011.[152]Whilst there are some disputed points, I can summarise the broad and largely undisputed position in this section as regards the development of the Kronospan factory, with particular reference to its layout and processes as they have also developed over time. This section is divided into the following subsections:(a) the development of Chirk up to 2011;(b) the environmental permits;(c) the site and the different processes;(d) the general picture in relation to dust, odour and noise in the pre-relevant claim period; and(e) general conclusions in relation to the character of the location.

(a) The development of Chirk up to 2011

[153]Originally, Chirk was a rural village, just north of the river Ceiriog (the boundary between England and Wales), with Chirk castle - now a National Trust property - lying to the west at the top of a ridge overlooking the town. The prevailing winds blow from south-west to north-east.[154]Chirk’s development was associated with transport links. The principal road in Chirk, the B5070 Holyhead Road, was – until the construction of a bypass to the east of the town in the early 1990’s – part of the A5 national highway, taking traffic north to Chester, north-west into mid and north Wales and south to Shrewsbury and beyond. The Shropshire Union Canal lies to the west of Chirk. It would have served two coal mines, both located a little distance from Chirk itself, which had closed by the late 1960’s but until then had provided employment for Chirk’s residents (and coal for their coal fires). The railway running alongside the canal stops at Chirk train station on its way to Chester to the north and Shrewsbury to the south.[155]The old centre of Chirk lies in the south-east part of the current Chirk footprint. It includes the local church and various other older buildings.[156]Further residential areas have been developed over to the years to the west, to the north and to the east of the old centre. There is a reasonable mix of older and newer property and of private and social housing. It is apparent that Chirk has a strong sense of community, with many people choosing to spend their whole lives in Chirk or the surrounding area or to return there to bring up their families. It is a popular place to live and demand for housing is strong.[157]As at 2018 Chirk had a population of around 4,500 people living in around 1,800 households.[158]The local landscape around Chirk remains predominantly pastoral and wooded, with relatively little large-scale arable land use in its immediate vicinity.[159]In the late 1960’s and early 1970’s modern industry came to Chirk in the form of a Cadburys cocoa bean processing factory (now owned by Mondelez) and Kronospan’s original particleboard plant.[160]Kronospan began life as a family owned sawmill business in Austria and, in the late 1960’s, it made a strategic decision to open a particleboard factory in Chirk. Two principal reasons were the ready availability of labour in the area (due in part to the closure of the mines and other large local employers) and the opportunity to access grants following Chirk’s designation as a development area.[161]The Kronospan site was secured by the purchase of former agricultural land to the west of the town, including the old farmhouse which is now the Kronospan site office. The site was later expanded by the acquisition of part of the existing Cadburys site.[162]In Dr Datson’s report the Kronospan factory is stated to cover around 40 hectares Around 100 acres. , with the Mondelez factory and various units in the Canal Wood industrial estate (principally the Archwood Group, formerly Burbidges, a manufacturer of stair parts) covering around a further 20 ha. This total size compares with around 84 ha of residential area. This shows Kronospan’s size relative to the whole of Chirk. The industrial area is separated from the residential areas by the Holyhead Road on the east/west side and by Station Ave on the north/south side.[163]There is no evidence of any significant history of complaints being made against Mondelez or Archwood. Almost all witnesses stated that the chocolate bean roasting process at Mondelez produces a sweet smell, which a few have described as sometimes sickly, but otherwise there is no evidence of any significant complaints about its activities apart from some about noise. Archwood is a much smaller operation, generating few complaints, due to its comparative size and the fact that its operations are conducted further away from the residential areas of Chirk than either Kronospan or Mondelez.[164]Construction of the original Kronospan factory began in 1971. Production began two years later in 1973, with two particleboard presses, two melamine presses and a paper impregnation line coming on stream.[165]In the planning statement produced in February 2016 to support a further application for permission for the proposed development of a RCF facility and other works describes how the site had a “long and complex planning history” and how planning permission was secured for a steady stream of extensions and improvements. These may be summarised as follows.[166]In the 1980’s:(a) an additional particleboard press and melamine presses were added;(b) the original dryers for the presses were replaced by a single dryer in 1985 (which was itself replaced in 1989);(c) a formalinGlo plant was also installed in 1985.[167]In the 1990’s:(a) the production of MDF began in 1992, using a continuous press with a combined heat and power (“CHP”) gas turbine;(b) in 1994 a sawmill was constructed to provide residues for the board manufacturing processes;(c) in 1997 a continuous particleboard press was installed to replace the existing presses;(d) in 1997 the production of kitchen worktops and laminate flooring also commenced and a second formalin plant was added;(e) in 1999 a second MDF press and associated CHP gas turbine was added and the processing of RCF began;(f) in 2001 a second dryer for the presses was added.[168]Over this period, improvements were also undertaken to address the problem of fumes, principally from the drying process necessary to produce the particleboard and MDF. Thus, in 1985 permission was obtained to erect a 16m stack to collect and expel at height fumes from the drying ovens and for an incinerator to deal with the formaldehyde plant tail gases. Permission for 52m high chimneys to serve a new boiler and the existing wood chip drier was obtained in the late 1980’s. The permission for a new MDF plant in 1993 included for the installation of abatement equipment. This has involved the provision of what are known as dry scrubbers (also known as cyclones), wet scrubbers and wet electrostatic precipitation filters (“WESP”Glo). A number of each have been installed and upgraded over the years.[169]One persistent complaint in relation to the efficacy of abatement systems relates to what is referred to as blue haze. This appears to be a non-scientific description of emissions combining hot air, water vapour (which makes the visible haze – also referred to as a plume, which is more noticeable when emitted at low level) and – as regards Kronospan – what was described in a report commissioned by Kronospan in 2014 as small amounts of wood dust, formaldehyde and natural wood resins (or condensable volatile organic compounds (“CVOCs”Glo), some of which will have an odour and some of which may cause discolouration. It was said that the presence and degree of odour and discolouration will depend on the type and quantity of CVOCs. Further details are given at page 8 of the BREF.[170]One of Kronospan’s witnesses, Dr Acton, agreed that before the abatement equipment was installed in the 1990’s blue haze would undoubtedly have been a problem as a result of Kronospan’s activities, explaining some of the complaints referred to in the newspaper articles to which I now refer.[171]There is no documentary evidence put before me of complaints, official or otherwise, prior to the mid-1980’s. From that time onwards various newspaper articles refer to various complaints about dust and odours said to emanate from Kronospan. Some relate to blue haze and others relate to concerns expressed about the health and safety implications of the use of formaldehyde in formalin, given that it is a corrosive and flammable gas with a pungent, suffocating odour.[172]However, there is no pleaded case and no hard scientific or medical evidence placed before me that formaldehyde has been emitted from the Kronospan factory over any period relevant to this case to any degree likely to be a danger to human health. Nonetheless, this has set a pattern where local residents, including many of the lead Claimants and their witnesses who gave evidence, are still concerned about the possible health hazards from the operation of the factory again, without any pleaded case or objective evidence to support such concerns.[173]Records of complaints to WCBC over the period 1992 onwards also demonstrate a regular pattern of complaints from local residents in relation to dust, noise and odour. This is consistent with the expansion of the Kronospan operation over this period, but may also be explained in part by the impact of the reduction in through traffic passing through the centre of Chirk due to the opening of the A5 bypass, i.e. as the impact of one diminished the impact of the other would probably have become more apparent.[174]By the beginning of the 2000’s the site was clearly much larger than it had been before, with more substantial quantities of particleboard and MDF being produced from 1992 and with RCF being brought to site and processed in increasingly large quantities from 1999. Putting it neutrally, it is not surprising that the impact of this increase in the factory operation resulted in increased concern and generated increased complaints from residents. In around 2001 Kronospan set up a hotline to receive and record complaints from local residents.[175]In 2004 WCBC served a notice on Kronospan requiring the provision of further information in relation to complaints of odours and noise relating to various properties in Chirk. This included requests for information and action in relation to dust emissions as well – see for example request 9 which required Kronospan to “provide a proposed improvement programme with appropriate timescales, to demonstrate how [it] intends to reduce the impact of emissions from the log-yard”. Kronospan replaced the existing WESP at this time as well.[176]WCBC was sufficiently concerned about the complaints of dust to instruct an environmental consultant to undertake a monitoring exercise in four specified locations over the period 12.8.04 to 30.9.04. The results as summarised did not identify a problem based on average daily dust deposition rates, save for isolated occasions in the North-East (Lodgevale Park) area.[177]In 2005 Keith Baker began working for Kronospan as its environmental health and safety manager. In the same year Kronospan began to formally record a management plan for dust, odour and noise, which was regularly updated subsequently. These plans were intended to be a user-friendly guide for employees. In an easily readable table they identified sources of fugitive emissions and summarised potential causes, release points, outcomes, measures and actions to prevent or reduce the risk and to identify who within Kronospan had responsibility for them.[178]In his evidence Mr Baker explained how under this plan a water dispensing tanker was used to wet the roads on site to prevent or minimise dust emissions. In examination-in-chief he explained that the tanker driver would only attend if the weather forecast was dry or if specially requested to do so. Jumping forward a little, by 2018 the process had changed and a tractor pulling a water bowser tank would be used every day, regardless of the conditions. He also explained that the plan as updated over time included enhanced mist suppression measures as well as seven day weekly sweeping of Holyhead Road. Originally, a system involving the use of cannons and water guns was used in the RCF offloading facility, but that was eventually changed to a curtain and mist suppression system.[179]Under the plan weekly environmental audits were also conducted and recorded.[180]In 2009, due to continuing concerns, the CELG was formed and began collecting data about complaints/concerns relating to the Kronospan site.

(b) The environmental permits

[181]Until 2003 regulatory responsibility lay with WCBC. From 2004 it was divided between WCBC and the Environment Agency. The Environment Agency was replaced in Wales by NRW in 2013, although it appears that this did not change its essential structure or functions.[182]The first permits following this division of responsibilities were issued by the Environment Agency and WCBC in 2004. Because the Environment Agency only regulated the activities associated with the manufacturing processes in relation to formaldehyde and associated industrial activities, its environmental site permits are of little direct relevance to this case. Although they might have been thought of as being relevant to the odour complaints, as I explain below I am satisfied that these complaints are not in any way related to formaldehyde.[183]The permit in force immediately before the start of the claim period and, thus, of direct relevance to this case was issued by WCBC on 4.8.10, and re-issued with amendments on 12.11.12 and again on 17.10.14. It related to all of the other activities associated with the wood-based panels manufacturing process, including the two biomass boilers which supply thermal power.[184]They stated that “the site is located in close proximity to residential housing, which gives rise to receptors that are sensitive to emissions to air”.[185]Whilst there were specific permit conditions, there were no specific emission limits for dust, noise or odour. However, Kronospan was under a general obligation to use BAT which, as explained in the introductory note, was intended to cover the most detailed level of plant design and operation where Kronospan was in the best position to understand what pollution control means for an installation in practice. This included (paragraph 2.1.3) an obligation to “prevent or, where that is not practicable, reduce emissions from the installation in relation to any aspect of the operation of the installation which is not regulated by any other condition of this permit”.[186]There was also a specific investigation and reporting obligation in relation to all complaints, in particular regarding off-site emissions of wood dust (paragraph 2.1.7). The reports to be sent to WCBC were required to detail the actual or likely source of dust and the actions taken to prevent or minimise further dust emissions from such source.[187]There was a further specific obligation to employ and keep a written record of all inspections and cleaning to prevent the accumulation of particulate matter which may give rise to the emission of wind-blown particulates, including from external areas such as roadways, open yards and storage areas (paragraph 2.1.10).[188]Condition 2.2.12 required Kronospan to “ensure that wood particles, including wood chip and sawdust, that may become wind-entrained are stored in such a manner (for example, enclosed storage areas, screened, covered, by conditioning and height management of stockpiles etc) so as to prevent, as far as is reasonably practicable, the emission of wind blown particulates”.[189]There were further associated specific obligations in relation to external stockpiles (paragraph 2.2.14), storing MDF fibre or sander dust in external stockpiles (paragraph 2.2.15), unloading of wood residue and wood dust (paragraph 2.2.17) and the transportation of wood residue and dust to site (paragraph 2.2.18).[190]Paragraph 6.2 required the installation to be operated to ensure that there should be no emissions of dust beyond the site boundary which are “prejudicial to health or a nuisance (as perceived by WCBC’s authorised officer)” and that this should be monitored at least once daily and more frequently during adverse weather conditions.[191]There were specific emissions to air limits for particulate matter in excess of specified limits in relation to contained sources of production (paragraph 6.9) which were to be subject to specified monitoring (paragraph 2.10). There were, however, no specified off-site monitoring conditions (paragraph 11).[192]There were also obligations in relation to preventing or reducing noise emissions (paragraph 7.1) and odour emissions (paragraph 2.8).[193]Paragraph 12, headed “Improvement Programme”, required Kronospan to complete the requirements specified in the table by the date specified and to notify WCBC on completion. There were three requirements. The first required Kronospan to undertake a detailed BAT assessment of the abatement plant fitted to the two MDF and the chipboard presses and send a summary and proposed timescales to implement any necessary changes by 30.6.11. The second required Kronospan to assess and undertake noise attenuation measures in relation to the hacker building by the same date. The third required Kronospan to undertake noise attenuation measures in relation to three specified fans to “ensure that the levels of noise emitted from these sources is the lowest practicably achievable” and to provide 3 monthly noise reports detailing progress”.[194]In the 2012 permit paragraph 6.2 required the installation to be free from offensive odour beyond the site boundary as perceived by WCBC’s authorised officer subject to the use of BAT and appropriate controls used to prevent or (if prevention was not applicable) to reduce such emissions.[195]Paragraph 6.7 also specified emissions limits from the three Nairb wet scrubber units referred to below and the paragraph 12 improvement programme requirement 10 required the Nairb chipboard wet scrubber to be replaced. In its opening submissions the Claimant appeared to suggested that this was relevant to odour issues. However, apart from the fact that there is some evidence that low level plume emissions were associated with some odours from the minor amounts of chemicals forming part of these plumes, there is no evidence, expert or otherwise, that these odours were, or were believed by WCBC to be, offensive odours falling with paragraph 6.2 of the permit. Indeed requirement 10 makes no reference to odour.[196]The paragraph 12 improvement programme requirement 6 obliged Kronospan to investigate sources previously identified by noise report dated July 2012 by a consultancy known as RSK as having a contributing factor of 37dB(A) or greater at receptor locations and submitting a report by 31.3.13 to detail possible noise mitigation measures for the identified noise sources and the predicted achievable noise reductions, it being expected that this would result in an agreed programme to be implemented within an agreed time frame. Requirements 8 and 9 referred to specific steps to be taken to reduce specific noise sources.[197]In the 2015 permit paragraph 12 included as requirement 12 an obligation to implement the noise control measures detailed in section 6 of the Wakefield report by 31.7.15 in relation to certain specified items. The Wakefield report is undated but was produced following three visits in March and June 2014. It was a lengthy and detailed report with three specified objectives, being:(a) those identified in requirement 6 in the 2012 permit;(b) to inspect additional or newly installed plant which might emit excessive noise, including the newly installed Ceatec abatement system (referred to later in the relevant claim period chronology); and(c) to indicate expected noise level improvements upon implementation of the suggested measures. The recommended noise control measures were identified in section 6, from which it is apparent that undertaking the works identified in the 2012 permit would have a very modest reduction on noise levels at the off-site receptors.

(c) The site and the different processes

[198]The permit contains a useful description of the detail of the site as it then was, which may be supplemented by the other evidence in relation to the relevant claim period, including that provided by Mr Baker and, helpfully, aerial photographs produced by him and taken in 2005, 2014 and 2018 respectively, as well as a site plan from 2018.[199]The log-yard was the incoming raw material store for virgin logs, peeled wood chips, sawdust and RCF for use in the various manufacturing processes. It is still a sizeable area but, within the relevant claim period, was even larger. It was predominantly located on the west-central and west-northerly side of the site, with a further area for storing virgin logs on the north-east side. The permit contained a limit on the height of stockpiles of 8m normally and 10m in specified periods. Mr Baker says this limit was adhered to and there is no evidence to the contrary.[200]Various chipping machines turned logs into chips. The hacker produced unpeeled hacker chips for particleboard and certain MDF grades. The chipper produced peeled chips for other MDF grades. Both were in the log-yard area. At some stage they were covered but it is not entirely clear from Mr Baker’s second witness statement [#24] when this happened. There is a reference in the July 2012 noise report to the hacker being enclosed by then. In 2018 the hacker was removed and the chipper refurbished and planning permission was secured for a building to house a flaking system.[201]Prior to 2018, RCF was delivered to site primarily by HGVs, unloaded in the open by bucket-loaders and then stored in the log-yard in three-sided bays which were otherwise open to the elements. Wood chips and sawdust were stored in the same way. The approximate volume involved was around 325,000 tonnes p.a..[202]In June 2018 a new RCF reception, grading and silo storage facility was completed, which ensured that RCF could be delivered and treated and stored in closed conditions (save only at peak times, when more storage space was needed, and the overflow had to be stored in the log-yard as previously). There were four silos of which two were for RCF and two were for woodchips.[203]RCF has a much lower moisture content than woodchips and sawdust (28% as opposed to 111% and 99% respectively).[204]Mr Baker said in his second witness statement that these storage bays were effective at containing the materials and minimising dust. He said that sawdust forms a crust which prevents dispersion. He accepted that dust occurs in dry or windy conditions and when the bucket loader is used to unload materials or to transfer them to the manufacturing process. A photograph shown to Mr McKenna in cross-examination provided a graphic illustration of the dust generated by this process. In cross-examination Mr Baker accepted that significant clouds coming off the exposed surfaces of the RCF stockpiles was a relatively common feature before the RCF was unloaded underground.[205]However, he also said in his witness statement that any such dust normally falls within the area of the log-yard. He said that further dispersal is naturally prevented when the weather is damp, that water bowsers are used to spray the site roads when it is dry and that the paved site roads are regularly swept. He says that before June 2018 a mist air system ensured that fugitive dust was controlled when the RCF was unloaded. The effectiveness of these measures is something which I shall have to address in due course, but the investigations recorded in the RHRs make clear that the investigators did not consider that they were not always effective.[206]Mr Baker also said that the log-yard did not cause odour or noise issues, not least because no deliveries took place at night, although it is not disputed that vehicles were still in use there at night and that their reversing alarms in particular were audible.[207]The sawmill has always been completely enclosed and there is no evidence that it creates any dust, odour or noise problem, save for some limited operational noise if the roller shutter door is left open.

(i) The particleboard pre- production process

[208]The pre-production process was carried in an area labelled as such on the aerial photographs, close to the railway to the west of the site. Recycled wood was cleaned and decontaminated in two recycled fibre-cleaning plants (referred to as PAL plants, PAL being a proprietary name), before being fed to particleboard pre-production. There, woodchips and RCF were reduced in size using flakers or hammers. The cleaned woodchips, sawdust and RCF were then transferred to silos, before being dried in one of two dryers, fuelled by gas or sander dust. These dryers incorporated cyclones for primary particulate arrestment and the discharged air from the cyclones passed through the WESP to minimise the emission of fine particulates and reduces the emission of CVOCs. The dried wood chips were then screened for fines and coarse material for the surface and core of the chipboard respectively and stored in silos ready for use in the particleboard production process.[209]In the system in place from November 2018 this process was undertaken in a new enclosed wood chip preparation facility, with a new dryer and other equipment. The old pre-production plant was dismantled. Later, a new dryer and WESP was included.[210]In the enclosed particleboard production line the chips were transferred to the blender, where resin and other chemicals were added. The resinated chips were then transferred to the “core forming” and “surface forming” stations before entering the main press. Boards emerging from this process were then finished, including sanding. There are also dust abatement systems within the enclosed building, whereby dusts generated in the process are filtered out and moved to silos and then used as a fuel.[211]Mr Baker explains that abatement systems similar to those used in the pre-production dryer system described above are provided to extract emissions containing formaldehyde, some particulate, moisture and CVOCs, with the cleaned gases being discharged at height to permit effective dispersion.[212]He says that the only potential for the release of fugitive dust or odour is if there is a failure in the abatement system. He describes how the abatement systems are designed so that in the event of a failure the process would be shut down and the cause identified and resolved. However, dust particles would be emitted in the interval between the failure and the process shut down which was, for obvious reasons, highly disruptive to the smooth operation of the production process. For that reason a period of grace was built into the process to allow operatives a window of opportunity to resolve the problem before the shutdown occurred. (ii) The MDF production process[213]Wood chips are washed, steamed and refined (turned from chips into fibre) in a refiner building, close to the pre-production area of the site. Resin and wax are applied prior to drying. After drying the material is pressed. Abatement systems are in operation at this stage similar to those described above. If there is a process issue with the dust filtration abatement system, such as the activation of an explosion relief panel on the cyclones, sensors are activated which shut down the MDF process.[214]Mr Baker said that Kronospan takes immediate steps to prevent any dust released in such incidents from dispersing beyond the site, by damping down dust which has landed on the MDF building roof or on roadways and by sweeping roadways if necessary. (iii) Other processes[215]Further secondary products, melamine, laminate flooring, and worktops were and are produced using chipboard or MDF. There processes are all undertaken within covered buildings. Mr Baker says that the paper impregnation process, regulated by the Environment Agency / NRW, does produce emissions but these are extracted using abatement systems similar to those described above.[216]The formalin plant has also always been completely enclosed and, as a chemical plant, has its own dedicated emissions control system which has always been very tightly regulated by the Environment Agency / NRW.[217]Mr Baker says that “from time to time complaints are made about toxic smells that local residents believe to be formaldehyde but I have been unable to link any smell complaint to issues with the production and use of formaldehyde on site”. He acknowledges that there was one reported incident in October 2015 of a process gas release including low levels of formaldehyde. (iv) The position before, during and after the end of the relevant claim period.[218]Although this trespasses on the chronology of later events, it is a convenient point for me to address it now.[219]First, I observe that neither of the parties had undertaken, or asked their experts to undertake, a detailed analysis of the effect of the various changes detailed above over the period from the start of operations in 1973 down to the completion of the various improvements in 2018, with a view to seeking to provide a scientifically-based understanding of the impact, actual or potential, of the changes over time made to the Kronospan operation on the nature and/or extent of dust, odour and noise emissions. That is not intended as a criticism. It is likely that it would have been a huge endeavour, and would probably have been fraught with difficulty and uncertainty, especially the need to make sense of fiercely contested evidence, factual and expert. Nonetheless, it has meant that it is difficult for me to reach a confident informed understanding of the impact of these changes on the nature and extent of any dust, odour and noise emissions from the Kronospan site over time.[220]As made clear in oral closing submissions, the Claimants’ essential position is that Kronospan’s activities have always caused a nuisance, both in ordinary language and in legal terms, ever since it was opened in the 1973 and, certainly, by the mid 1980’s when there is documentary evidence of reported complaints.[221]In contrast, Kronospan’s position is that, whilst it was inherent in the operation of its factory that its activities would have led to some occasional emissions of dust, odour and noise, they did not, either in ordinary language or in legal terms, amount to a nuisance. It says that Kronospan has always been engaged in the core activity of wood panel manufacture ever since the 1970s. Whilst it must and does accept that there has been a significant expansion of the scale of the operation over time, in particular in that the original particleboard production has been joined by MDF production and both production lines have been increased in size, it says that these changes occurred many years before the start of the relevant claim period. It contends that the added operations, and the evolution of plant and systems connected with them, were, therefore, part of the established use of the factory well before July 2011.[222]It follows that neither party positively asserts that from 1971 to the early 2000’s the position must, given the above-described increase in the scale of the operations, have changed to a material degree in terms of the volume of dust, odour and noise emitted, nor does either party positively assert that there was no material change from the early 2000’s until the improvements mentioned above and in more detail below, specifically in relation to the log-yard and pre-production areas, were completed.[223]Nonetheless, especially in the light of the respective cases advanced by the parties, and in particular the evidence of Ms Wilson that the improvements to the log-yard and pre-production areas made a significant difference to the amount of dust emissions from the site, I need to consider whether on my assessment of the evidence that must have been the case and, if so, how that affects the position.[224]The aerial photographs of the Kronospan factory taken in 2005, 2014 and 2018 illustrate that the overall size and composition of the site changed very little until 2018, when fairly substantial changes were made to the log-yard and pre-production areas. Even in 2018, however, there remained a significant area of external wood product storage area to the north-west area of the site, although the log storage area to the north-east had disappeared.[225]In 2014 three new abatement systems were added to the particleboard and MDF lines, exhausting into one common stack. Mr Baker acknowledged in his second witness statement that under certain climatic conditions the plume from this lower stack could be hazy and suffer grounding. However he said that the resultant smell, about which some residents complained, was of processed wood and not formaldehyde, as some believed. According to Mr Baker the problem was investigated and resolved by ducting the emissions into the higher WESP duct. This is consistent with the evidence of Dr Acton, who explained that particular difficulty was that at this stage it was not possible simply to buy and install an off-the-shelf system, so that one had to be designed and installed and only then would any unforeseen problems become apparent.[226]The major differences between the position during and after the end of the relevant claim period appear to be related to what Mr Kaindl described in his witness statement as a “Vision 2020” investment programme for Chirk, upon which it embarked in 2015.[227]This included a log-yard silo and RCF reception project, which was something which was required by the 2014 WCBC permit. Condition 13 required the provision of appropriate containment for the RCF unloading, storage and transportation activities by 31 July 2015 in order to prevent fugitive emissions of wood-dust to air. [G1/9/244][228]With effect from June 2018, i.e. three years later, Kronospan completed the new contained RCF reception, grading and silo storage facility. Even then quantities of RCF continued to be stored outside, initially due to commissioning difficulties and later due to balancing demand against supply at certain times.[229]With effect from August 2018, Kronospan completed the provision of a new building enclosing the new chipper flaker for both MDF and particleboard processes, with conveyors in and transfer of processed material out to silos.[230]With effect from late 2018, Kronospan completed the removal and replacement of the PAL chipboard pre-production plant with a new CHIP preparation plant in an enclosed pre-production building.[231]There is plentiful evidence that the PAL plant was (and was well-known to be) a dusty operation. In cross-examination Mr McKenna accepted it was notoriously dusty but made the point, echoed by a number of other Kronospan witnesses, that due to its location at the west side of the site it did not cause any problem off site. Whilst that may have been true in normal conditions it is plain (see for example Mr Baker’s email dated 20.4.11 and the RHR from 2.9.13) that this was by no means always the case.[232]For essentially tactical reasons both parties have, in my view, adopted a somewhat inconsistent position in relation to the impact of these improvements.[233]Thus, in closing submissions, the Claimants advanced a contention that what they contend as a delay in undertaking these improvements demonstrates a failure by Kronospan to comply with its obligations as a neighbour and to comply with the associated obligation of reasonable user. They also have an interest in seeking to show that these improvements may well explain the difference in the results of the dust monitoring undertaken by CELG in 2016-2017 and the dust monitoring undertaken by Kronospan from 2017 onwards. However, mindful no doubt of the continuing claim to be determined in the stage two trial, they are cautious about being thought to make any admission, express or implicit, that the dust nuisance had substantially resolved by the end of 2018.[234]In similar fashion Kronospan, whilst obviously not wanting to suggest that these improvements made no difference at all, are wary of being thought inferentially to accept that they were undertaken precisely because there was a significant problem before the works were completed. Also, they wish to be able to deploy the results of the Kronospan dust monitoring from 2017 onwards as being reliable indicators of the nature and extent of dust emissions during the relevant claim period.[235]Nonetheless, I will have to consider what the position is on my assessment of the evidence and how, if at all, that affects the position. (iv) Screening[236]The 2005 aerial photograph shows a line of trees screening the Kronospan factory from the Holyhead Road along its entire length. It appears from the July 2012 noise report that as early as 2012 a noise bund was in place along this boundary. At some later stage, around 2019 so it appears, there was a programme of “enhanced landscaping surrounding the site to lessen its impact” Paragraph 27 of Mr Kaindl’s witness statement. . (d) The general picture in relation to dust, odour and noise in the pre-relevant claim period.[237]Without seeking to make detailed findings at this stage, it is necessary to indicate my findings as to the overall picture in relation to dust, odour and noise over the 40 years preceding the start of the relevant claim period, i.e. the period from 1971, when construction operations began on site to 2011.[238]It is clear that over the whole of the period there has been some experience of, and some complaints about, dust, odour and noise emissions from the Kronospan factory, albeit that the nature and extent of such emissions has been highly variable, particularly in terms of its intensity, frequency and locality.[239]I am satisfied that from 1973 to the around 2000 the position was one of a steady increase in the nature and extent of dust, odour and noise, broadly commensurate with the steady increase in the nature and extent of the operations carried out by Kronospan at the site.[240]I am satisfied that from around 2000 to the beginning of the relevant claim period the position remained broadly the same, consistent with the absence of any significant changes in the operation over that period. I am also satisfied that there was no significant change in the position throughout the whole of the relevant claim period until the end of 2018, when the combined impact of the improvements to the log-yard and pre-production area had taken effect.[241]In terms of dust, I am satisfied that from time to time from around 2000 through to the end of 2018 most residents in most areas of Chirk will have had some experience of some dust particles emanating from Kronospan landing on their homes, garden furniture and cars, ranging in size and texture from sawdust to wood fibres material, and in colour from light yellow to dark brown dust, and which, at the time, was ascribed both by them, by Kronospan and by WCBC as coming from Kronospan. This will have been caused, typically, either by unplanned emissions or log-yard emissions or, occasionally, a combination of both. For reasons I shall develop, in general terms the log-yard emissions are unlikely to have travelled very far from the Kronospan site in most cases and, where they did, most usually to the north-east of Chirk, whereas the unplanned emissions are more likely to have varied in terms of their distance of travel and direction, depending on where in the factory they were emitted and the wind speed and direction at the time.[242]I am also satisfied that the experience of these Kronospan related dust particles must be weighed against the fact that Chirk has always been a reasonably busy small town, with plenty of dust emissions from busy traffic using Holyhead Road in particular (which, albeit much reduced since the early 1990’s, still included HGVs serving the town generally and the industrial areas in particular), from the well-established industrial sectors of Chirk, but also from the well-stocked gardens of much of the housing stock and green spaces.[243]In terms of odour, again I am satisfied that over the same period from time to time most residents in most areas of Chirk will have had some experience of some odour from Kronospan. There was a regular smell of fresh wood, and sometimes a smell of heated wood, occasionally associated with some more chemical smell. This could not have come from anywhere other than Kronospan. This is not surprising, in that one would expect that woody smells would be produced by the debarking and chipping processes and the heated wood smell from the process of drying the wood chips and the RCF. It is also not surprising that making the particleboard, MDF and laminates would also emit heated wood smells and, in addition, some chemical type smells from the heating of resin and from the processes associated with the manufacture of the laminated products. Since these operations were always carried out indoors, these were only likely to have been experienced in the case of unplanned emissions. There is no hard evidence that there were also smells associated with the formalin plant, save on the most infrequent basis and no evidence of a formaldehyde smell. In general terms, the distance and direction of these odours would depend on the wind speed and direction at the time.[244]In terms of noise, again I am satisfied that from time to time most residents in most areas of Chirk will have had some experience of noise emanating from the various production processes at Kronospan and that this was most commonly experienced at night during the summer, when residents would be likely to have their windows open for ventilation and cooling and when other noise sources are low. Again, in general terms, the distance and direction of these odours would depend on the wind speed and direction at the time.[245]In terms of those living on, or close to Many of the streets and house numbers in parts of Chirk have a rather confusing layout, including the houses in West View which in places, including where Mrs Green lives, is effectively the Holyhead Road. , Holyhead Road, a significant element of disturbance has been caused by the regular deliveries of raw materials by HGV to the various factories, including the Kronospan factory. This is not just in terms of the noise and smell associated with HGVs and other factory bound traffic, but also with wood dust, fibres and larger pieces of wood, falling off HGVs loaded with wood products. This would particularly be experienced in the North-East area, where traffic has to brake on coming into the built up traffic controlled area of Chirk, in the East 3 area, where traffic has to turn in and out of the site entrance, and in the whole of that area, where the combination of HGVs, local traffic, people parking to use the local shops and other facilities and pedestrians, would inevitably lead to more frequent braking and manoeuvring. Further, residents of these areas would also have lived closer to the site boundary than the majority of other Chirk residents and, thus, would more frequently have experienced the dust, odour and noise to which I have referred.[246]It is clear from the evidence that none of this background level of dust, odour or noise was such as to put people off from staying in or moving into Chirk, purchasing properties or starting families there. Most people had also learned to put up with the more occasional more significant episodes of dust emissions, odour or noise, often associated with unplanned emissions or log-yard emissions due to unusual period or high wind speeds and dry conditions at Kronospan. Most people would, perfectly understandably, have – consciously or unconsciously – traded off these disadvantages against the many advantages of living in Chirk, including the economic benefits of having a major local employer situated in the town.[247]As I have said, however, the limited dust monitoring process undertaken in 2004 did not identify substantial dust levels at levels identified in certain literature as being indicative of a nuisance. There was no further dust monitoring process until 2016-17 and the results of that sampling was, at best, equivocal in terms of the nature and extent of any dust emissions.[248]Planning permission was granted for the works which resulted in the extensions of the Kronospan operation at the site, and permits were granted and renewed by WCBC and the Environment Agency over this period. Whilst they contained a number of conditions to ensure that Kronospan’s operations did not cause a nuisance to local residents, that does not mean that the contemporaneous view of the regulators was that a nuisance was in fact already occurring on a regular and significant basis. There is no evidence that this is what they believed at the time. There were some complaints made by WCBC about dust, odour and noise emissions and some threats of action unless steps were taken, but no enforcement action or other litigation was actually brought against Kronospan by anybody with regulatory authority or by any local residents.[249]There is no evidence that any individual change resulted in a new flood of complaints from residents, investigated and supported by the regulators, from which it can safely be concluded that any individual change made a significant difference to the overall position.[250]If one considers the number of complaints recorded in relation to the number of residents in Chirk and the length of the period in question, it is still an extremely small proportion of the total possible complaints if nuisance level dust, odour and noise was being emitted from Kronospan to most of the residential areas of Chirk on a regular and persistent basis. (e) General conclusions in relation to the character of the location[251]In summary, by the start of the relevant claim period Kronospan was an established presence in Chirk which had expanded considerably from its initial 1970’s footprint into by far the most substantial industrial presence in Chirk, both in terms of its overall footprint relative to other industries and to the town as a whole and as to its output.[252]From the 1970’s onwards Chirk had become a small town in a rural setting which was predominantly residential but had an established, physically separate but contiguous, industrial presence, of which Kronospan was by far the most significant in terms of size and overall impact.[253]I accept that there is a significant difference between a mixed residential and industrial location, where residential and industrial uses are physically inter-mixed, and a location such as Chirk, where there are separate residential and industrial areas.[254]As I have found above, Kronospan’s established impact on Chirk by the start of 2000 included the background level of intermittent and wind-speed and direction dependent localised dust, noise and odour from site operations and from transport to and from the factory described above, so that the claim in nuisance must be assessed on that basis. In short, the character of the locality was neither the archetypal peaceful rural market town on the one hand nor the busy industrial town on the other and, instead, lay approximately in the mid-point between the two.[255]The critical question is whether the extent of the dust, odour and noise from the beginning of 2000 to the end of the relevant claim period (within which period I am satisfied, as I have said, that there was no material change) was such as to cause a serious and a legal nuisance in the context of what was, by the beginning of 2000, an established character of three relatively significant local factories, but with Kronospan by far the biggest of the three, which would inevitably lead to a certain level of background dust, odour and noise emissions, but would not have been expected to have been and nor were they sufficiently substantial to have caused a serious and a legal nuisance.[256]For the reasons I give later, I am satisfied that they did not. I am satisfied that the answer would be the same even if I had to make a different decision in relation to the period from the beginning of 2000 to the start of the relevant claim period and from then to the end of the relevant claim period.[257]In the circumstances, I do not need to go on and to consider whether or not Kronospan could have maintained a claim for prescription in relation to the period from the beginning of 2000 to the start of the relevant claim period, although it is fairly obvious, I am satisfied, that it could not.[258]Nor, do I need to grapple with the separate question as to whether or not any nuisance occurring within the first such period was such as could have been said to have amounted to a public nuisance, although if I had needed to do so I would have been satisfied that the nature and extent, including the relatively limited temporal and geographical nature of the nuisance in question was not such as to amount to a public nuisance, as opposed to a transient nuisance in respect of which only those within a narrow line to the east of Holyhead Road in the East 1 area (identified in more detail below) could have complained.[259]In reaching this conclusion I have not taken into account any of the arguments made on behalf of Kronospan that it has provided many benefits to Chirk, not least that of being a substantial local employer, as well as making substantial contributions to local community organisations. As the authorities make clear, these benefits cannot be taken into account when deciding whether or not its activities amount to an actionable nuisance, notwithstanding that they may be relevant in other contexts. F. Documented events within the relevant claim period 2001; 2012; 2013; 2014; 2015; 2016; 2017 2011[260]It is convenient to set the scene by reference to the minutes of the CELG meeting of 11.4.11, since they set the scene as it was in the run-up to the start of the relevant claim period.[261]As relevant, it records complaints being made about noise and also about dust due to high winds and dry weather, particularly from the PAL operation, where fine screening was stopped in order to mitigate dust generation. As Mr Baker explained in a later letter of 20.4.11, the PAL operation would have to be stopped if wind levels became too high, on the basis that the existing steps would not be sufficient to prevent dust being picked up. This is plainly a recognition that log-yard dust emissions could occur in such circumstances with no suggestion, as has been made at trial, that this could not under any circumstances be the source of any problem since the dust simply could not reach the residential areas of Chirk.[262]Kronospan also stated that RCF would be screened in a new building, which clearly indicated an awareness of the risk of dust emissions when screening took place outside. In February 2012 the environmental statement in support of an application for planning permission for this was produced. This included (paragraph 1.3.9) the following statement:
“At present RCF is delivered to the site in HGVs and stored in open piles within the stockyard area before being used in the board manufacturing process. The storage and handling of the RCF can result in the release of fugitive dust. The proposed RCF offloading and screening facility would help to improve the product quality and provide an enclosed offloading and storage facility that would result in a significant reduction in the periodic release of fugitive dust and fibre from the site.”
[263]This is clearly a contemporaneous acknowledgment by Kronospan of the existing problem and the need to take appropriate steps to address it.[264]There are records indicating that further meetings were to take place on 11.7.11, 21.11.11, 16.4.12 and 11.6.12, however there are no minutes of those meetings in the disclosure and the next minute relates to a meeting on 23.8.12, at which nothing of significance is recorded as having happened.[265]From 18.7.11 (the start of the relevant claim period) to the end of 2011 there were 21 dust, 16 noise and three odour complaints received by Kronospan, some from Claimants and others from other residents.[266]As regards dust, the overall pattern in the first three months is of complaints of wind-blown dust which were investigated by Kronospan and ascribed to exposed sources from log-yard operations. In particular, on visits to the lead Claimants Susan Green and to Sarah Williams, Mr Baker did not record any belief that the complaints were not genuine or that the dust had not emanated from exposed dust emissions from Kronospan.[267]The RHR for Mrs Green dated 12.9.11 was about “a lot of wood dust and debris on her vehicles”. Mr Baker investigated, recorded that the weather was wet and windy, did not suggest that her complaints were not genuine, recorded “high winds resulting in wind blown dust from the site, no specific incident” and, under “preventive action”, wrote “difficult to minimise dust except for wetting the roads”.[268]The RHR from Mrs Williams dated 10.10.11 recorded Mr Baker having found “heavy dust contamination on her garden furniture” which he suspected was “wind-blown dust and fibres from stockpiles on the log-yard and the process”. She is recorded as having said that “she was not anti-Kronospan but the dust just recently was the worst she had seen”.[269]Another complaint from the North-East area at Crogen recorded on a RHR dated 10.8.11 refers to mixed wood fibres and dirt being found on a car, ascribed to excessive dust from the log-yard in windy, dry conditions, although the reference to dirt also indicates that dust from Kronospan was not thought to be the only factor.[270]A further complaint on a RHR dated 3.9.11 records a similar complaint where the investigator found “nothing out of the ordinary” at the site, albeit the recorded wind direction was consistent with dust from the log-yard being carried to the Lodgevale Park area.[271]Mr Minshall of WCBC wrote to Kronospan on 4.10.11, confirming that he had found similar conditions to those observed on a joint visit with Mr Baker on 10.8.11 on a recent visit, namely “significant clouds of wood-dust from the exposed surfaces of the recycled and sawdust stockpiles … becoming wind-entrained” and the “un-loading of lorries carrying re-cycled wood … and subsequent bulldozer stockpiling activities” having the same effect.[272]He declared himself “in no doubt that the dust emissions observed during the visit were causing significant nuisance dust deposits beyond the process boundary”.[273]There is no record of this account being challenged by Kronospan. However, in a later letter written by Mr Baker after Mr Minshall had visited the site again on 14.10.11, Mr Baker recorded that Mr Minshall had noted improvements whilst also stating that an unloading operation generated “a significant amount of dust”.[274]This is a useful snapshot of a relatively small number of complaints over a three month period, most of which were in the North-East, East 1 and East 2 areas and were ascribed to log-yard emissions. There is no indication that Kronospan doubted the genuineness of the complaints or that the dust appeared to come – at least in part – from Kronospan. Nor is there any doubt that despite Kronospan making improvements it was simply not always possible to prevent dust emissions completely.[275]I have not been referred to any RHRs in relation to noise or odour. There is however an EIRF dated 30.9.11 in relation to a complaint made on 17.8.11 about a droning noise at night on, which appears to have been traced to the Nairb west scrubber on MDF line two and the need to replace a faulty silencer.[276]On 30.9.11 Kronospan obtained a further report from Dr Harry Earl. This related to an earlier assessment as to whether or not the continued use of the existing Nairb wet scrubbers then in use were compliant with Kronospan’s obligation to meet the permitted emission levels and the duty to comply with BAT, as it was required to do under the WCBC permit. It was concluded that they were compliant, but WCBC asked for further information including whether or not there were more efficient wet scrubbers and also whether or not it was possible to reduce the low-level visibility of the plumes given off by the Nairbs. Dr Earl reported that it would cost up to £6M to replace all three systems and, in short, that this was not justified, whereas replacing the particleboard Nairb might provide some benefit in terms of reducing the low-level visibility of the plume from this line. His conclusion was that “to replace the chipboard Nairb should be an improvement and may be considered BAT”.[277]In my judgment it cannot sensibly be said that this report placed Kronospan under a duty, either under the permit or as a reasonable neighbour, to undertake this work as a priority. There weas no health risk and the only problem was the visual impact and some odour, which clearly had not resulted in any significant number of complaints and could not be described as an “offensive odour”. 2012[278]Throughout the whole of 2012 there were 109 dust complaints, 23 noise complaints and one odour complaint.[279]As regards dust emissions, process incidents were the subject of reported emissions incidents in February, April (where Mrs Green was one of the complainants), September, October and December (when Amy Bell’s husband, Stuart, was a complainant on both occasions). As with the previous year, a relatively large proportion of complaints were made by one of the Claimants, a Mr Rodway in the North-East area, although they appear to have been accepted as genuine. One particular incident on 8-11 December 2012 led to a very high number (81, i.e. almost 75%) of such complaints, when an explosion hatch/panel blew on the MDF 2 cyclone. Others were identified as being probably related either to other unplanned emissions or to log-yard emissions. Only two in March and a number in June were said on investigation by Kronospan employees to be wholly unrelated to Kronospan.[280]In relation to noise, one of the 23 complaints referred to was made by Mr McKenna himself. In July 2012 a detailed updating noise report was prepared by a consultancy known as RSK following a noise survey. In summary, noise levels to the east of the site (i.e. the residential areas) had decreased, indicating that “mitigation measures had reduced noise levels”. It did however identify three potential further noise reduction options, with a timescale of December 2012 to May 2014. It noted however that reductions in noise from the log-yard and vehicle movements were unlikely to be evident and that Kronospan was probably operating to BAT in these areas. The last point is of relevance because many of the noise complaints made appear to relate to such activities, in particular reversing alarms.[281]Following this, by condition seven of variation two of the permit of 12.11.12 improvement conditions were specified which included Kronospan being required to investigate noise sources identified in a June 2012 report as having a contributing factor of 37dB(A) or greater at receptor locations by 31.3.13.[282]In December 2012 Kronospan provided a detailed 46 page response to the requests for information made by WCBC pursuant to a permit inspection. There is no evidence that WCBC challenged or took action in relation to these responses. 2013[283]In 2013 there were 42 complaints about dust, 14 about noise and one about odour. If one factors in the high proportion of dust complaints in 2012 attributable to the December 2012 process incident the position is not significantly different to the previous year. Again, although some complaints were said to be unjustified, the majority were regarded as genuine. In this year most dust complaints identified as genuine were thought to be the result of log-yard emissions, some being recirculated from deposits on roadways. Amy Bell’s husband was the only complaint emanating from or connected with the lead Claimants.[284]There was a further CELG meeting on 20.5.13 at which Kronospan updated on its proposals to replace the three Nairb wet scrubber units with improved steam extraction units from an alternative supplier known as Ceatec and also summarised the changing plans in relation to the new biomass unit. Reference was also made to the incident of December 2012 and the actions taken to avoid a recurrence. It was also noted that emissions monitoring results for the second half of 2012 and an inspection in the same period demonstrated compliance with emissions limits and permit conditions respectively.[285]As regards noise, it was reported that night time monitoring in early 2013 identified no excessive or abnormal emissions, however an updated report with mitigation proposals was awaited.[286]There is a reference to an intention to have a further CELG meeting on 10.9.13, but no minute is available.[287]The RHR from 2.9.13 in relation to a complaint of noise and dust stated that the dust problem was “believe[d] to be as a result of the pre-production PAL plant exhausts”, but it was recognised (by Mr Baker) that “if we run [the PAL plant] with recycled only we generate dust from the exhaust”. There is no evidence that running the PAL plant with RCF only was halted.[288]As regards the noise complaint Mr Baker said “it would appear that in recent months the drone from the site has become more noticeable…during the quiet summer nights the noise is an irritation”. This echoes the complaints made and evidence given by many of the lead Claimants and their witnesses about the noise being a nuisance at night, especially when houseowners wanted to keep their windows open. However, as against this the number of noise complaints is as low as in previous years, indicating that noise was not driving any significant number of complaints.[289]The further CELG meeting on 25.11.13 is only of import insofar as it recorded a comment from one of the local councillors, who had had noise monitoring carried out at his house, that the noise level at Kronospan was “generally much quieter than it used to be”.[290]Surprisingly, no further minutes of meetings appear in the trial bundle until that held on 30.5.17, even though there are indications of further meetings being arranged for 19.5.14, 7.10.14, 24.3.15, 3.9.15, 8.1.16, 28.6.16. 2014[291]There were 62 dust complaints, 27 noise and 12 odour complaints. Of the complaints investigated by Kronospan there is a similar pattern to previous years (i.e. a combination of unplanned emissions and log-yard emissions, with only a small number being considered as unjustified) and again represent a similarly extremely small number in comparison to the total number of households and total number of days in which complaints may have been made.[292]As previously, most complaints were on investigation associated with dry windy conditions.[293]A Kronospan presentation provided for the meeting on 19.5.14:(a) summarised complaints from residents since 2008, showing a relatively stable picture (when adjustment is made for the December 2012 process emission);(b) indicated that off-site noise monitoring mostly revealed nothing beyond general background hum;(c) referred to the problem of plume grounding and the proposed amendments to the Ceatec system to resolve the issue.[294]As to point (c), a Kronospan presentation provided for the 7.10.14 meeting referred to the ongoing remedial measures to the Ceatec system as well as to noise improvement measures having been agreed to be undertaken within 12 months.[295]A progress report from a consultancy known as CHAM dated 29/10/14 records that WCBC had instructed Kronospan to undertake a BAT assessment and report on the remedial actions required. Its findings were that whilst plume grounding may “be comparatively frequent”, odour consequences were “far less frequent”.[296]In his witness statement Dr Acton explained that following the installation of the Ceatec system in 2014 there were a number of incidences of plume grounding events involving a visible haze and distinctive smell caused by CVOCs being released above 100mg/Nm3.[297]He said that this was investigated and resolved by piping the emissions into the SEKA main treatment plant. The Claimants have noted that it was not until January 2016 that Kronospan applied to WCBC for a permit variation to do this. In his letter Mr Baker said that “there was a characteristic wood smell sometimes described as a chemical smell also associated with the plume”. He also reported that remedial works had been undertaken in 2015 but that the current proposal was to undertake these further works by the end of April 2016 if possible to ensure that BAT was fully achieved.[298]Dr Acton was cross-examined on the basis that even after this had been undertaken there were subsequent complaints indicating that there was a continuing problem. He was unable to comment directly but it is fair to say that he expressed some surprise that this could have happened once the emissions were going through the SEKA, unless that had happened during testing when the Ceatec was deliberately disconnected from the SEKA. There is no further evidence on this point.[299]Another, produced for the 24.3.15 meeting, provides updates on all these matters and states that proposals are underway for the new RCF offloading facility. 2015[300]In 2015 there were 68 complaints about dust, eight about noise and eight about odour.[301]The RHRs reveal a similar picture to previous years so far as Kronospan’s investigations and conclusions are concerned. Kronospan notes that one RHR from April 2015 records a complainant referring to a recent newspaper article and a “Stop Kronospan Pollution” Kronospan Facebook site, and making reference to formaldehyde fumes as well as dust.[302]This evidence is consistent with the evidence of the lead Claimants that by this time there was a growing swell of concern about the potential health impacts of emissions from Kronospan, publicised via Facebook and other social media. In the absence of any other obvious reason for the groundswell of complaints (in particular, evidence of some change in the operations or working practices in Kronospan which would have led to an increase in emissions) in my judgment this is the most likely explanation for the increase.[303]However, the RHRs do not record many of the complaints as unjustified. It would appear to follow that even though more people were complaining, this was a reflection of wider publicity, encouraging residents to make genuine complaints, rather than either:(a) there being an increase in the number of emission events; or(b) people making bogus complaints. Nonetheless, the overall proportion is still tiny in comparison to the overall population of Chirk.[304]There is a RHR in relation to Mrs Green from April 2015 which indicates that on investigation it was concluded that there was some wood dust, fibre and dirt from site but also a lot of dust and debris kicked up from Holyhead Road. This seems to be to be a fair reflection of the combination of reasons why properties close to the site and to Holyhead Road were worse affected due to this combination of factors.[305]On 17.7.15 Mr Minshall wrote to Mr Baker following a meeting on 13 July, noting that there had been numerous complaints in recent periods of warm dry weather about fugitive dust and that he had visited Chirk on several occasions during June/July to investigate complaints and had witnessed light to moderate dust deposits on cars and properties in Lodgevale/West View/Holyhead areas. He stated that “the deposits were consistent with fugitive emissions from log-yard activities and contained wood-dust, wood fibres in addition to grit and dust from the environmental sources”.[306]Mr Baker’s letter in response did not challenge this assessment. This provides further independent confirmation of the problem, albeit at this time it was not apparently a cause of significant dust deposits and Mr Minshall noted that dust from Kronospan was not the only source of the dust deposits.[307]As regards noise, Mr Baker says that work was undertaken from March to June 2015 to install additional silencers on machinery and to add some additional screening. He wrote to Mr Minshall on 13.8.15 to update on progress as regards compliance with the 2014 permit. In summary, the position was that everything had been completed save for two items, one which had been revised by agreement and would be carried out the following month, whereas the other required further consideration about an alternative scheme. There is no evidence that WCBC was dissatisfied with this. 2016[308]As regards complaints, the picture is similar to 2015, with 91 complaints about dust, 21 about noise and 16 about odour.[309]Following complaints of dust in the West View area in late January 2016 Kronospan offered £100 as a full and final settlement “contribution” to the costs of cleaning the wooden elements of the house exteriors.[310]On 5.4.16 Mr Minshall wrote to Kronospan, following a visit on 31.3.16, referring to various matters of concern, including a complaint about the delay in the RCF containment project. He stated that it would be unacceptable for this to be delayed into June 2016 and “if fugitive wood-dust emissions continue to cause a nuisance in the local community beyond this date” evidence would be gathered for formal enforcement action. He also requested a contingency plan. This is the strongest complaint made by WCBC over the relevant claim period.[311]Mr Baker replied on 29.4.16, attaching an interim initial contingency plan and explaining that the delay, although disappointing, would result in a more comprehensive scheme. The interim contingency plan proposed measures to reduce the fine material supplied, to provide further screening in specific areas, and, to cease screening of rejected RCF in high wind conditions.[312]Mr Baker accepted in cross-examination that these interim proposals could have been implemented years before.[313]On 3.5.16 planning permission was granted for Kronospan to construct a RCF reception, grading and silo storage facility.[314]On 9.6.16 there was a public meeting at which Mr McKenna answered questions from local residents. The CELG decided to implement an air quality monitoring programme and to form an air quality monitoring sub group to include elected councillors as well as representatives from WCBC, NRW and Kronospan. The monitoring was to be for dust particles, formaldehyde and fine particles. The monitoring was undertaken – I am satisfied - by WCBC using dust collection implements known colloquially as “frisbees” Glo.[315]Although there is no direct evidence about this, no enforcement action was taken at this point. In the absence of direct evidence from WCBC a reasonable inference for this is that:(i) WCBC would not sensibly have been able to consider any enforcement action against Kronospan without sufficient evidence that dust emissions from Kronospan were such as to constitute a nuisance in the reasonable perception of its environmental officers; and(ii) one reason for implementing the frisbee monitoring scheme was to see whether it would result in objective evidence that dust emissions from Kronospan were causing a nuisance.[316]The locations were at: Lodgevale Park in the North-East area; in the vicinity of Chirk primary school (referred to, confusingly, sometimes as Chapel Lane and sometimes as Lloyd’s Lane) in the East 3 area; Maes-y-Waun, also in the East 3 area; and Ceiriog Close in the South area. These had been chosen on the basis that they were, so far as possible, in the same locations as the sampling exercise undertaken in 2004 referred to above.[317]The monitoring began on 4.8.16 and ran through to 20.4.17. I have referred to the resultant data in this judgment as the “frisbee 2016/17 data”. A detailed report was produced at the end of this period, referred to below. In the end WCBC did not take any enforcement action in reliance of the results. Nonetheless, Ms Wilson in particular attaches considerable weight to the results of this monitoring process.[318]On 8.7.16 there was an incident which caused concern because complaints about fumes and smells, due to winds causing the plume from the Ceatec stack to ground and travel over to the school, as well as dust fibres, led to the schoolchildren being brought in from the playground, attracting significant local publicity. Over the year there were some other complaints about odour in the context of plume grounding from the Ceatec system.[319]On 18.7.16 Hugh James sent a standard form letter to local residents. inviting them to express interest in bring a claim for damages for dust nuisance on a “no-win no-fee” basis.[320]Kronospan was, looked at from its perspective, understandably concerned about the prospect of local residents being encouraged to engage in litigation. It contends that it was after this that there was a definite increase in complaints which, it contends, should be considered in the light of would-be complainants having a motive to complain which did not previously exist.[321]I am satisfied, for the reasons stated above, that there is clearly some truth in this, and also some complaints were undoubtedly motivated by concerns about these emissions causing ill-health, especially to local children. Nonetheless, others were plainly justified.[322]My overall impression is that the summer of 2016 was a bad time for dust, odour and noise emissions, albeit that there was no one cause for this increase other than the prevailing weather conditions and the fact that the planned improvements in relation to the log-yard area and the pre-production plant had not yet been completed.[323]This is consistent with an EIRF completed by a Kronospan employee, Mr Harrop, on 5.6.16, in which he referred to off-site contamination and commented that "this is not a new issue and has been happening for a long time. The processing plant producing the dust has water sprayers to suppress the dust but they never seem to be turned on”. Mr Baker was cross-examined about this. He said that Mr Harrop and another operator were prone to complain particularly because they were aggrieved that water sprays were being turned off by night operatives.[324]There are also RHRs from this period, which were put to Mr McKenna in cross-examination, which show complaints being made from the south area and investigated by Mr Baker who concluded that they were genuine (and that the wind was blowing from the town towards the south area).[325]On 27.9.16 Mr Minshall wrote to Kronospan, following observations made on visits on 12.8.16 and 27.9.16, and referring to his:(a) observing “unacceptable fugitive emissions from the PAL … plant”;(b) view that the remedial works of installing mist air units were not adequately suppressing wood dust emissions from PAL dump 1; and(c) asking for copies of the works instructions and procedures in relation to the PAL plants and details of the actions taken in that respect.[326]Mr Baker replied on 21.10.16. His letter(a) provided the works instructions and procedures requested and details of the actions taken;(b) explained the cause of the particular issue observed as being a hose split (i.e. an unplanned emission) which had been remedied the same day; and(c) explained the reason the mist air units were not working was because they were on a cleaning cycle, but that lacuna in the system had been remedied.[327]There is no indication of any response from Mr Minshall, which tends to indicate that he was satisfied with the explanations provided. 2017[328]Events up to the end of the relevant claim period on 18.7.17 are covered here.[329]In 2017 there were 128 dust complaints, 36 about noise and nine about odour. Within the claim period the majority of dust complaints were attributed either to windblown emissions from the log-yard or unplanned emissions.[330]A number of complainants referred to having been approached by Hugh James, supporting the inference that by this stage the possibly of a claim was becoming widely known. On 3.2.17 a letter of claim was sent by Hugh James to Kronospan on behalf of 73 local residents, complaining about dust, but also referring – for the first time - to some complaints about noise nuisance. There was still however no reference to odour as an issue.[331]Kronospan produced a presentation for a CELG meeting on 2.2.17, for which no minutes are available, which records progress underway on the RCF offloading facility, which is described as an £18 million investment. On 30.5.17 Kronospan made an application for planning permission for a new building to house a new pre-production plant. The planning statement in support stated (at 1.1.6) that the existing plant “operates in open air environment which can create containment difficulties which could potentially have an offsite impact with dust and/or noise” and (at 1.1.8) that the “potential for off-site impact from noise and dust, resulting from equipment breakdowns, would be significantly reduced”. In July 2017 Kronospan secured planning permission to replace the wood chip preparation facility with a new building to house new equipment including a new dryer and WESP.[332]At a CELG meeting on 30.5.17 Sarah Williams asked about progress on the stockpiles and RCF containment project. Mr McKenna was recorded as saying although the dust emissions would be much reduced they would not fall to zero, because the stockpiles would still be required in busy periods. There was also a general discussion about dust emissions, with fugitive dust emissions reportedly being raised as a “main community concern”.[333]This meeting also confirmed the decision to cease dust monitoring, as a result of the report produced for the CELG in relation to the monitoring undertaken over the 9 month period from 4.8.16 to 20.4.17. It was clearly a detailed and comprehensive report, written by someone with expertise in the field, and is worth referring to in some detail, especially because there is no evidence of any contemporaneous challenge from any party to its content or conclusions.[334]The report explained that testing was undertaken for:(i) dust particles (i.e. the subject matter of this case;(ii) formaldehyde;(iii) fine particles (up to PM 25) (particles sufficiently small to be breathed in and, hence, capable of causing respiratory and other diseases); and(iv) nitrogen dioxide (NO 2) (to measure traffic pollution). Nothing of significance was noted in relation to formaldehyde, fine particles or NO 2.[335]It stated that speed and direction wind data was provided by Kronospan from its site anemometer An instrument for measuring (in this case) the speed and direction of wind. . The extent to which this data was reliable has been the subject of dispute between the parties’ experts and is addressed at that point.[336]It recorded the “mg/m 2/day”Glo readings for dust deposition at the four locations which was an average, taken from the total dust collected by the frisbees at each location with each four weekly period between collections. As explained in more detail when reviewing the expert evidence, the frisbee samples could, when analysed, identify different types of dust particles, but could not differentiate between dust deposited from particular sources (i.e. wood particles from Kronospan as opposed to wood particles from elsewhere), or from particular wind directions, or at times of particular wind speeds.[337]In summary, the results were variable in each location, with only a fifth over the conventional “complaints likely” threshold of 200 mg/m2/day for “residential areas and the outskirts of towns” selected as the appropriate comparator. (Again, I shall refer to these comparators further below when I review the expert evidence.) The lowest rates were experienced at Ceiriog Close.[338]The report identified the prevailing wind direction as being from the south west, with the second most frequent wind direction as being from the north west. This was obviously taken from the Kronospan anemometer. It made the point that, if dust emissions were coming from the Kronospan site, then one would expect a correlation between wind direction and the amount of dust deposition and, hence, one would expect to see most dust deposition at Lodgevale Park. It noted that this, however, was not the case. It identified two possible reasons for this: first, that the wind was of too short a duration to be recorded; second, that there was an additional source of dust in Chirk.[339]It did however also note what appeared to be a correlation between incident notifications by Kronospan to WCBC, recorded wind strengths and directions and dust deposition rates in the four locations. This tended to suggest a correlation between higher amounts of dust and dust from unplanned emissions, but did not also indicate a correlation between higher amounts of dust and log-yard emissions.[340]It noted that when the results were compared with those undertaken by an environmental consultant on behalf of WCBC in 2004 in similar locations an increase in dust levels was noted at all four locations. However, the average over the whole period even in 2016/17 was only just above the 200 mg/m2/day level in Lodgevale Park and Maes-y-Waun, and under it at the other two sites.[341]It also recorded that samples had been sent for SEM analysis and then compared with samples taken from Kronospan of sawmill wood, MDF fibre and MDF dust. The testing indicated that no wood was found at Lodgevale Park or Maes-y-Waun, with some proportion of wood at the junior school and a very little at Ceiriog. It was, however, noted that only a very small area of the dust was sampled in this way.[342]In relation to dust particles it concluded that “nuisance levels of dust exist in Chirk [but] wind analysis has confirmed that it is not possible to attribute this solely to Kronospan”. As I have said, the correctness of this conclusion is in issue between the party experts.[343]It concluded that continued monitoring on the same basis “is not seen as a viable means of assessing the impact of the factory in terms of nuisance and the existing technique of Council officers visiting complainants offers the best technique for assessment”. It has however “confirmed the widely held belief that the North and East of the village experience increased levels of dust over the South”.[344]Overall, therefore, this report cannot be said to have provided strong support for the proposition that the dust being complained of by Chirk residents was being emitted from the Kronospan site. F. Documented subsequent events[345]Beginning on 28.7.17 (i.e. only 10 days after the end of the relevant claim period) a far more comprehensive dust monitoring programme was begun by Alderley Consulting Ltd on the instructions of Kronospan using the DustScan Glo proprietary system (developed by Dr Datson’s firm) in seven locations at(1) DMP1: Ashover, Holyhead Road (East 2) (Andrea Twigg’s property);(2) DMP2: Crogen (North-East);(3) DMP3: Kronospan site entrance (East 3);(4) DMP4: Co-op (East 1/ East 2);(5) DMP3 Ceiriog (various locations) (South);(6) DMP6: Parish Hall (East 3); and(7) DMP7 West View (East 2); (4) Coronation Drive (East 2/ East 4); (5) Longfield Road East 3); (6) Church View (South); (7) DMP7: 10 Charles Street (East 1) (Deryn Poppit’s property).[346]I shall refer to the Dustscan system in more detail when I come to consider the expert evidence. However, in summary, it uses what are known as dustdiscs, which are essentially similar to the frisbees in that they measure mass dust deposition, albeit to a much improved design, but they also measure dust directional deposition, i.e. the direction from which dust is deposited, which allows a correlation to be made between wind direction and dust deposition.[347]This monitoring programme continued until 11.3.20 (when interrupted due to Covid restrictions) and again from 24.6.20 to 30.9.20. I will refer to this in monitoring programme in detail when I consider the expert evidence.[348]On 11.8.17 Hugh James sent a further circular letter to local residents, referring to the deadline for joining the GLO claim and mentioning, for the first time, odour as an element of the claim.[349]In 2018 Kronospan began a programme of photographing eight locations in residential areas of Chirk on most weekdays to ascertain the presence of dust deposition, typically photographing rubbish bins and the like. Details are given in Mr Baker’s first witness statement. The resulting photographs do not show any real evidence of dust deposits at all, let alone from Kronospan. Although they are criticised to some extent by the Claimants because they are not taken from very close up, nonetheless they are part of the overall evidence from which it is possible to conclude that the more exaggerated complaints made about garden furniture etc. being covered in a thick pile of dust are simply not credible.[350]A Kronospan presentation for a CELG meeting on 22.5.18 records what appears to have been a peak in the increase of dust complaints from 2016 (91) to 2017 (128) and then reducing in 2018 (53). The same is true of noise, although odour complaints remained the same. It also records progress on the various works improvement programmes. The minutes of the meeting include reference to a complaint by Sarah Williams about drivers emptying metal buckets after 11pm which, according to Mr McKenna, was prohibited after 7pm. She also complained about dust due to the outside storage of dusty materials, which Mr McKenna agreed was unacceptable and highlighted the works underway in relation to the RCF and pre-production plants.[351]There was a fire in the log-yard which led to the fire service attending and a large number of complaints from local residents.[352]On 31.02.19 a Mr Campini of WCBC produced a further report for the CELG in relation to a further dust monitoring programme undertaken from 28.6.18 to 18.1.19, again using the frisbee method.[353]The report stated that its purpose was to see whether “recent infrastructure and process changes at Kronospan had had any impact on nuisance dust levels recorded over the 2016/17 monitoring period”. These changes were summarised as being:(i) the RCF system, intended to handle all the RCF received but, due to ongoing teething problems, some of the RCF was still having to be stockpiled and handled in the open air;(ii) the dismantling in late 2018 of the old PAL plants used to grade incoming RCF, which “gave rise to significant fugitive dust emissions due to wear and tear and being open structures”, and their replacement with pre-production machinery inside a purpose built pre-production building with “zero fugitive emissions”.[354]The writer recognised that since the frisbee gauge method provided an average daily dust deposition result “a limited number of high dust instances will not be evident in the results” and this “may cause some disparity between people’s perceptions and the actual results” because “it is the isolated heavy dust deposit levels which result in complaints”.[355]The gauges were placed at three locations (two of which were at alternative sites close to those previously used, because consent was not forthcoming to their relocation at the same sites).[356]The results showed such varying results at the Crogen site to lead the experts to conclude that they were unreliable and should be disregarded. The other two only showed mg/m2/day readings in excess of 100 in four monitoring periods. However, even these were open to doubt, since two were in the period mid-November to mid-December 2018 when no dust complaints were made to WCBC, which “introduced an element of doubt as to their veracity”.[357]The other two were both at a location in the South area which had not generally been regarded as likely to be affected by dust from Kronospan.[358]Information from the anemometer at the site entrance showed the prevailing winds over the period as coming from the south-east, which would not be consistent with dust being blown by the wind from Kronospan to any of the three locations.[359]When compared with the 2016/17 monitoring programme, the overall dust levels were lower, but any conclusion that the cause, or even a partial cause, was the improvements at the Kronospan factory would have to consider the data about wind directions and inconsistencies regarding the data from November and December 2018[360]Although the author was careful not to express a concluded view, what is clear is that the monitoring programme and the analysis did not provide any positive support for the thesis that the recent infrastructure and process changes at Kronospan had had any impact on nuisance dust levels recorded over the 2016/17 monitoring period. His only positive recommendation was to discontinue the monitoring programme.[361]There is no need for me to review further events such as the course of the litigation and the like. I therefore turn to the factual evidence. G. The factual evidence – introduction and conclusions[362]My assessment of the factual witness evidence is not intended as, nor should it be thought to be, a “stand-alone” exercise, divorced from my assessment of the contemporaneous documentary evidence or the expert evidence.[363]It was a feature of the cross-examination of almost all of the Chirk residents called to give evidence, whether for the Claimants or Kronospan, that they were asked whether, and tended to agree there was, a spectrum of sensitivity of individual’s perceptions of dust, odour and noise. It was put to most of the Claimants and their residential witnesses that they were on the sensitive end, and it was put to most of Kronospan’s residential witnesses that they were on the insensitive end. Most tended to disagree with that question.[364]This, I think, is a very good summary of the factual evidence as a whole. Most witnesses were perfectly reasonable when considering objective matters but were generally convinced either that things were fairly bad most of the time (the Claimants and their witnesses) or that there was really no problem most of the time (Kronospan’s witnesses).[365]Returning however to be the particular point, I have no doubt that there is a spectrum of sensitivity as a general proposition. This general label of sensitivity will include a wide variety of factors: physical (visual, nasal or oral acuity); general (including such things as general attitude to cleanliness, both internal and external); and psychological.[366]However, I do not consider that this spectrum can, by itself, explain the extent of the differing recollections. I am satisfied that there are additional factors, such as:(i) geographical location (although there are major inconsistencies between witnesses in the same areas);(ii) specific concerns amongst many of the Claimants about perceived safety issues; and(iii) the different witnesses’ differing views of Kronospan as either a community problem or a community asset which seems, in large part, to depend on whether an individual has any economic tie to Kronospan as a major local employer or benefactor.[367]It is also a feature of the case that, both as a matter of the expert evidence (including the Claimants’ own dust dispersion modelling evidence) and commonsense, persons living closer to the Kronospan site, especially those living to the north-east of the site, in the opposite direction of the prevailing south-west winds, are likely to be significantly more affected by dust, odour and noise than are those living in other directions.[368]However, that distinction does not appear to be reflected in the evidence, particularly that of the lead Claimants and their witnesses.[369]In the circumstances, this is not a case where I can make a simple decision on the basis that most or all of the witnesses on one side were generally reliable, whereas those on the other side were generally not as reliable. If I were to accept the evidence of the Claimants and their witnesses as fundamentally reliable, I would have to find that the Kronospan witnesses were fundamentally unreliable, and vice versa. That is not something which I can properly do on my assessment of the evidence before me.[370]Instead, my assessment is that most of the witnesses, sometimes consciously but more often unconsciously, exaggerated their evidence to support the Claimants’ case or Kronospan’s case respectively.[371]The core complaint of the Claimants is clearly supported by the conclusions reached by the Kronospan investigators in many of the RHRs. However, the nature, extent and frequency of the dust emissions as recounted by many of them is not reflected in the RHRs as a totality, notwithstanding their explanations as to why they did not complain every time they experienced dust emissions or why other Chirk residents did not complain at all. I am satisfied that the discrepancy is explained primarily by their concerns about the perceived health risks from dust, odour and noise emissions from Kronospan. In relation to a smaller number of Claimants, it is explained by the prospect of a risk free payout.[372]In contrast, more of the Kronospan witnesses seemed to me to be genuinely stating their view, even though I am satisfied that the complete denial of any experience of dust emissions is inconsistent with the RHRs.[373]Hence, objectively, I am a little more inclined to accept the general picture as portrayed by the Kronospan witnesses as closer to the true position most of the time than the general picture as portrayed by the Claimants and their witnesses. H. The Claimants’ factual evidence[374]There are 16 lead Claimants, eight chosen by the Claimants and eight by Kronospan. Of these, eleven gave evidence and five did not. Those who did were as follows:(i) Susan Green;(ii) Amy Bell;(iii) Gareth (Lars) Hughes;(iv) Kelly McAll;(v) Donna Thomas;(vi) Ronald Davies;(vii) John Jones;(viii) Helen Price;(ix) Sarah Williams;(x) Adam Healy; and (xii) Nina Williams.[375]Maureen Jones was not called and I refer to her witness evidence below. Her son-in-law, Paul Jones, attended and gave evidence in support of her claim, which I shall consider along with her witness statement. Other lead Claimants who did not attend and whose evidence I consider below are: Margaret Randle; Gareth Heyward; Nicki Evans; and Mark Edge. I shall consider the reasons why each did not give evidence, the weight which I attach to their witness statements and other evidence, and any inferences to be drawn from their non-attendance, after I have reviewed the evidence which each did give as relevant to this case.[376]A number of the lead Claimants who did give evidence had partners, some of whom were also Claimants, who did not give evidence, although in at least one case (Stephen Williams) they had provided witness statements. No explanation was given for this. Kronospan’s counsel made reference to this without inviting me to draw any particular inference from it. I was not told that Kronospan’s solicitors had written to Hugh James, stating that unless they were called I would be invited to draw any adverse inference such as, for example, because there was some good reason to believe that they would give evidence inconsistent with the lead Claimant partner. There is no obvious basis for drawing any such adverse inference. Many are working or have childcare or other responsibilities and there is no particular reason why they should be expected to give evidence significantly different from their partner.[377]That said, the absence of such evidence means that the lead Claimants’ evidence about the impact of dust, odour and noise from Kronospan on their property was not supported by corroboratory evidence from the partner who was also there throughout and the court has been deprived of the opportunity of testing the accuracy of the lead Claimants who did give evidence against that given by their cohabitant.[378]A number of other persons had provided witness statements for the Claimant but were not called, with no explanation why not, and in the circumstances I place no weight on their evidence. I refer to the evidence of David Fox below.[379]I include reference to the age of the witnesses because their life experience, including whether they have always lived in Chirk or not, may be relevant to the weight to be placed on their evidence. Ages are given as at the date the trial began.[380]By way of opening observation, in their opening skeleton the Claimants’ counsel submitted that a notable feature of the Claimants’ evidence as to the impact of the dust is the repeated account that they were having to clean parts of their properties more than they would otherwise have to do. They submitted, in a paragraph worth referring to in detail, because it sets out the case which they seek to establish, that “the real significance of the complaints becomes obvious when they are compared with other data points such as Schedule 1 notifications, EIRFs, weather data, admissions made by Kronospan employees to the CELG meetings or other public meetings, and reports of calls to the Kronospan Residents’ Hotline”, because this exercise demonstrates that:
“(i) There are lots of complaints, from Claimants and non-Claimants; (ii) It is highly likely that the dust on almost all occasions emanates from the site: [because] (a) there is explicit and implicit recognition of this by the Defendant’s employees – either an acknowledgement that complaint corresponds with an event on site or alternatively attribution to the log-yard and/or pre-production; (b) This is to be contrasted with employees being very willing to say when they do not believe the dust is from the site, but from some other potential source. (iii) There are spikes in complaints which correspond to particular events on site. (iv) There are complaints from non-Claimants at least as much as Claimants, suggesting the Claimants are not hyper-sensitive nor motivated by a desire to bolster the claim, but reasonable to complain. Complaints correspond to appropriate weather conditions, including wind direction e.g. complaints from south when wind from north.”
[381]In closing submissions the Claimants’ counsel submitted that the evidence of the lead Claimants and their supporting witnesses was both credible and compelling as to the existence of nuisance levels of dust, odour and noise during the relevant claim period.[382]In particular, they relied upon:(a) the broad consistency of their accounts, especially given the wide range of their locations, and their ages, backgrounds and lifestyles, some having hardly ventured out of Chirk in their lives and others who had lived and worked elsewhere for extensive periods;(b) the fact that by no means all of the claimants or witnesses were heavily involved in social media activity, let alone seasoned “anti-Kronospan” activists;(c) the fact that complaints from a wide range of Chirk residents, including those who did not become Claimants, pre-dated the involvement of Hugh James, so that it could not be said that the Claimants were just in it for the money;(d) their evidence was consistent with the extensive pattern of complaints, again pre-dating the involvement of Hugh James;(e) the absence of exaggeration whether in their original replies to questionnaires, their witness statements or their oral evidence.[383]They also made the point that it was unrealistic to expect witnesses to recall details of events going back many years.[384]They also submitted that it was striking that the Claimants’ evidence was consistent with the evidence of the contemporaneous complaints, by Claimants and others, and the extent to which those complaints were predominantly confirmed by the investigations undertaken by Kronospan’s employees at the time.[385]In contrast, the Defendant’s counsel referred me in their opening skeleton to the observations of Jay J in The Sonae Group Litigation case [2015] EWHC 2264 at paragraphs 456 and 460, where he referred to recall bias and the “vortex of suggestibility”, observing that “human beings are naturally susceptible and suggestible, particularly if they are made to believe that they form part of a coherent group with shared experiences, and if they risk none of their own resources in bringing a claim”.[386]In closing submissions they submitted that this was a case where, whilst the evidence as contained in the initial completed questionnaires and in the witness statements appeared to present a consistent picture, under detailed examination that impression of consistency crumbled away and overall the evidence was confused and confusing.[387]One of the particular issues in this case is the influence of social media. Many witnesses made references to Facebook pages and posts. There is a Facebook page called “This is Chirk” which appears to have been used for various posts, including posts by people concerned about dust, odour and noise emissions from Kronospan. In her second witness statement Ms Randle said that complaints are always on Facebook and that people post videos on big dust fallouts on a page called Stop Kronospan Pollution.[388]In the circumstances it is necessary for me to refer to the Claimants’ factual evidence in some detail to address these competing submissions, without attempting to deal with each and every point raised.[389]Before doing so I should also pick up a point of general application, which is that almost all of the lead Claimants and their witnesses described the dust in very similar terms, comprising one or other or sometimes more of two principal components, the first being small in particle size (sawdust being a commonly used description) and colour (light, beige, yellow, sandy were commonly used words), and the second being larger (fibrous or wood fibres being commonly used words) but also similar in colour.[390]It is said by Kronospan that the degree of similarity between the witnesses is suspicious and indicative of a degree of co-ordination. I do not fully accept this submission, although I do accept that those witnesses who tended to be most concerned about the health risks of Kronospan’s emissions were more likely to attribute all such emissions to Kronospan and to describe the dust in the way which they associated with Kronospan. The majority of witnesses attribute dust particles from Kronospan as having a yellow or light brown colour and being either fine or fibrous in texture, as complainants tended to do in the RHRs. This is obviously consistent with what would be expected from “pristine” dust emissions from Kronospan, whether from unplanned emissions or from log-yard emissions (although the RCF does have a darker colour). The majority of the photographs which were produced by the Claimants tended to have that colour and appearance, as opposed to the typical darker coloured general dust which everyone is familiar with, wherever they live, or with the typical vegetation deposits from pollen or other droppings from trees or other vegetation.[391]However, there are clearly variations in colour and appearance. Dust from Kronospan which had landed on site roads or local roads (especially Holyhead Road) and become mixed with dust from other sources before being picked up again by high winds and deposited in residential properties, will look much darker and less uniform. It is distinctly possible that most people would simply see it as “dirty” wood dust and link it with Kronospan, even if in fact it did not emanate from Kronospan.[392]Kronospan has suggested that the relative infrequency of reference to this dirty wood dust indicates that the majority of complaints actually made relate to unplanned emissions, where one would expect the lighter coloured finer or fibrous dust to be emitted, rather than log-yard emissions, where one would expect more of the dust either to be naturally darker in colour (RCF) or having become darker through being mixed with general dust on road or other hard surfaces. They suggest that this tends to disprove the analysis propounded by Ms Wilson, discussed in more detail below, that the evidence shows more dust dispersion in the relevant claim period from log-yard emissions.[393]It does not seem to me that recollections as to colour and consistency of dust takes me very much further, save to accept that it is probable that most of the witnesses of fact called by both parties (with the exception of Mr Baker and Ms Barker as semi-professional investigators) would attribute (or come to believe that they could attribute) Kronospan dust as having this distinctive colour and appearance. Susan Green[394]Mrs Susan Green is an important witness for the Claimants for a number of reasons, which is why I deal with her evidence first and a little out of sequence. She is 78 years old and has lived with her husband and co-Claimant Mr John Green and their adult daughter at West View since 1978. This is within the East 1 area, only just off the Holyhead Road but north of the Co-op store. It is probably the address closest to the Kronospan log-yard area of all of the lead Claimants, being only around 80m from the Kronospan site.[395]Although there are a number of other lead Claimants in the same area, as well as a number of Kronospan witnesses, none of their properties are as close to the Kronospan site as hers. On that basis, she might be thought to be likely to be one of the most affected by log-yard emissions, especially given the prevailing south-west winds. However, I must also bear in mind that:(i) the storage area closest to Holyhead Road was (before its redevelopment in around 2018) used for log storage, which is not a source of significant dust emissions;(ii) there is a bund and row of trees on the boundary between the site and the Holyhead Road.[396]Although Mr Green was not called, despite being a co-Claimant with Mrs Green, the evidence is that he has suffered with ill-health, so that there is no basis for a finding that he ought to have been called in such circumstances or to draw any adverse conclusion in that respect. Indeed, there is plentiful evidence that he was also involved in making complaints to Kronospan over the same period on the same basis as Mrs Green, so that it is unlikely that his evidence would have differed materially from hers.[397]Her evidence, in summary, was that all three had suffered from dust, odour and noise from Kronospan for many years.[398]As regards dust, this evidence was corroborated by:(a) the complaints they had made about dust emissions throughout the duration of the relevant claim period, as recorded in RHRs;(b) over a period from March 2017 they had completed nuisance record sheets which Hugh James had provided the Claimants, as well as a form of diary of Kronospan related events.[399]As regards the RHRs, in summary it can be seen that on investigation Kronospan usually accepted them as genuine and the dust as emanating either from Kronospan or Holyhead Road. It is worth noting, however, that the pattern of complaints was not always consistent. Thus, according to my calculations, in 2011, 2012 and 2013 there was only one complaint each, whereas there were eight in 2014, but only three in 2015 (although the first did record her as being “unhappy about situation arising all the time”), two in 2016 and four in 2017.[400]As regards the record sheets, they were attached to her first witness statement in a way which was not entirely easy to follow. There were also additional contemporaneous pages with little dust samples stuck on with clear plastic tape. Some of these record sheets and pages had been typed up. I would have been assisted by a chronological typed up transcript, agreed if possible. Instead, I received partial references to their contents in various places and by various means. They are, however, sufficiently important to refer to in some detail, because they are probably the best contemporaneous record from any of the lead Claimants. It is not made clear whether they are from Mrs Green, Mr Green, or a mix of the two.[401]With the relevant claim period there were (again on my calculation) seventeen dates recording dust on 9.3.17; 17.3.17; 8.4.17; 12.4.17; 14.4.17; 8.5.17; 11.5.17; 23.5.17; 24 & 25.5.17, 28.5.17; 15 & 16.6.17; 23.6.17; 3.7.17; 7.7.17 & 8.7.17. There were samples with entries from most of these dates as well. That is seventeen days over a period of approx. 4 ½ months and thus, in broad terms, once a week.[402]In summary, there appears to be a pattern of complaints of fine dust, fine fibres and wood chips, with the dust being described sometimes as brown and other times black and dirty. Generally, this was associated by the Kronospan investigators with times of winds, especially high winds, from the south-west. There were also references to problems from traffic, in particular HGVs serving Kronospan, including dust billowing off the HGVs. The consequences were stated to be generally dust on family cars, garden furniture and window sills as well as a build-up on roads and paths. The assessed impact was described by the writer occasionally as being only level 1 (barely noticeable), but more frequently to level 2 (distinct, easily noticed) and level 3 (causing nuisance, cleaning, closing windows etc), and occasionally level 4 (present and very noticeable).[403]There was one reference (15.6.17) to smoky air with haze and no recorded complaints of odour and noise.[404]Mrs Green clearly had not come to court to lie. She was not guilty of any obviously significant exaggeration in her questionnaire or her witness statements and was willing to make appropriate concessions. I accept however that she was not wholly reliable and I am satisfied that her evidence was significantly affected to a degree by her dissatisfaction with Kronospan and its activities with their consequences to her family over an extended period of time, as is made clear from her evidence and that of her husband.[405]Dealing with Kronospan’s primary reasons for contesting the relevance and credibility of her evidence, its first argument was that her primary complaints were directed to dust and debris from various sources other than dust emissions from the Kronospan site and, in particular, those relating to traffic using Holyhead Road and those relating to the construction of the new warehouse opposite her house. I accept that these were, and were believed by her to be, substantial reasons for complaining in their own right, but I am also satisfied that dust emissions from the Kronospan site were as important in her mind. This is what she said in cross-examination when this was put to her.[406]Kronospan also argued that what had been stated on the RHRs about her and her husband being given vouchers was not an acceptance that the dust had come from Kronospan. I address this below in relation to my assessment of Mr Baker’s evidence. I accept that issuing car wash vouchers was sometimes a goodwill measure. However, the clear majority of the RHRs relating to the Greens were where the Kronospan investigator acknowledged internally that the dust came from the Kronospan site. For the reasons given below when I address his evidence, I reject Mr Baker’s explanation that this did not represent his or the other investigators’ general belief at the time.[407]Kronospan argued that her evidence, as well as that of other Claimants and their witnesses, of there being dust which had settled on their car also entering their car from the car vents when the car was switched on and the vents were opened was not credible. In cross-examination and in submissions Kronospan advanced, as if it was an undisputed fact, that modern car vent filters will block any dust from entering a car though the vents. However, there is no actual evidence to this effect, such as evidence from a motor engineer to say that the design of a modern car vent system means that even in circumstances where, on the Claimants’ case, dust has settled on a car for some time and in some quantities, it could not possibly pass into the cabin in such circumstances. I do not think that in the absence of such evidence I can properly make a positive adverse finding against Mrs Green or the other witnesses. Judicial knowledge does not extend so far. I do however accept that their evidence on this point does appear to have the hallmarks of exaggeration, both in terms of the quantity of dust which they are suggesting had been deposited on the cars (and, hence, passed into the ventilation system) and its consequences.[408]Kronospan argued that her concern as to the health consequences of dust emissions was not supported by evidence. That is true. However, she was not a “conspiracy” complainant whose evidence as a whole was infected by this belief. I do however accept that there appeared to be an element of exaggeration as to the impact of dust on her breathing and on her husband’s and her daughter’s asthma.[409]Kronospan argued that the dust samples she produced did not have the same colour of the light yellow dust she attributed to Kronospan. In examination-in-chief Mr Baker was given the samples to look at and stated that they looked like “dirty dust and a mixture of dust from the roadways which could include RCF spillage to the roadway”. I accept that some of the samples were indeed dark in colour, but that was not the case in relation to all of them or to the photographs of dust on the cars. I do accept and find that a significant proportion of the dust experienced by Mrs Green over the relevant claim period comprised inorganic dust particles generated by road use, especially HGVs. I also accept and find that a proportion of dust over the relevant claim period will have emanated from HGVs carrying wood products to and from Kronospan and, possibly, Archwood. It would not always be possible to say whether darker coloured dust initially emanated from Kronospan.[410]It was put to Mrs Green in cross-examination that since she and her husband have always been keen gardeners, and since their house is surrounded by hedges and trees and other plants, dust from vegetation must have been a cause of the dust of which they complain. I agree that their location is indeed verdant and that dust from vegetation will also have formed a significant proportion of the dust experienced by them over the relevant claim period.[411]I also accept that it was not until later in the relevant claim period that there were any (or any significant number of) complaints from the Greens about noise or odour, which does therefore give the impression of something which only became more noticeable once it was suggested to them.[412]I also accept that her evidence in relation to noise was generally limited to background operational noise, including audible reversing vehicle noise warnings, with the occasional louder sound, and that this would not in my view approach the level of a legal nuisance, whether alone or in concert with the other emissions.[413]Finally, I accept that her evidence in relation to odour was generally limited to a burnt woody smell, which again would not in my view approach the level of a legal nuisance, and that her evidence of smelling formaldehyde was almost certainly a misattribution.[414]For all these reasons, I am satisfied that her evidence had a core element of reliability, albeit subject to considerable exaggeration in terms of the frequency and quantities of dust experienced, its attribution to Kronospan and the consequences alleged.[415]There are two key separate but connected questions I must decide as regards her evidence. The first is to what extent her justified complaints about dust emissions are genuinely complaints about dust emissions from the Kronospan site, as opposed from complaints about non-Kronospan dust emissions. The second, which turns in part on the answer to the first, is to what extent her justified complaints about Kronospan dust emissions are around the level of those recorded on the RHRs or around the level of those recorded in her 2017 complaints diary.[416]In making these decisions I have to have regard to the contemporaneous documentary evidence as well as the relevant evidence of the other factual witnesses for the Claimants (including Mr Paul Jones – see below) and Mr John Williams, Mr Derryn Poppitt and Mr Darren Hughes in particular, who gave evidence for Kronospan (see below) and whose properties are in a cluster to the north and east of her property, albeit a little further away from Kronospan and Holyhead Road in each case. As I say below, when considering their evidence, I consider that they were also generally reliable, although subject to minimisation for the reasons identified above, in the same way as the Claimants and their witnesses were subject to exaggeration. I do not consider that I can simply dismiss their evidence on the basis that they were not immediate neighbours of Mr and Mrs Green.[417]I will also need to factor in the evidence in relation to the dust monitoring investigations and the expert evidence in that regard and also in relation to the dust dispersion modelling and the dust characterisation. This includes the very important issue of the weight to be attached to the frisbee 2016/17 data and the subsequent dustdisc data. Nonetheless, in the end I am satisfied, for reasons I shall give, that the expert evidence does not provide the complete answer to this case and, hence, I must make my decision on the basis of the totality of the evidence, especially the contemporaneous documentary evidence.[418]On that basis, I accept that Mr and Mrs Green experienced significant dust emission events principally due to dust emissions from Kronospan on a reasonably regular basis but which, averaged out over the whole period, were closer to once a month than once a week or anything more frequent. That can only be an average, because I am satisfied that in reality the incidence would not have been on a regular basis, but in shorter bursts of more frequent dust emissions, due to the impact of wind direction and wind speed and dry conditions over certain time periods, particularly in terms of log-yard emissions, with periods of equal frequency when there were few if any significant dust emission events from Kronospan.[419]When I refer to a significant dust emission event, I am referring to a deposition of dust significant enough for there to be obvious visible signs of recent dust on a car or on garden furniture or on window or door sills. There would of course be variations as to the duration of the period of deposition, the total amount of dust deposited, and thus the extent of the dust deposited and what would have needed to be done to remove the dust from the affected areas.[420]I also accept that in reality there would be many occasions when such significant dust emission events would have been caused by a combination of dust emissions from the Kronospan site, dust from Holyhead Road of all kinds and dust from local vegetation, as well, no doubt, as dust from general underlying sources or unusual atmospheric events, such as the Saharan dust phenomenon referred to below. In broad terms, I am satisfied that in no more than a half of all such significant dust emission events could it be said that dust emissions from Kronospan were the principal cause of the substantial interference.[421]In other words, I am prepared to accept that Mr and Mrs Green would in fact have experienced significant dust emission events on average every two weeks, of which on average once a month was principally due to Kronospan, although again with the varying frequency at different times to which I have already referred.[422]In my judgment this analysis, together with my conclusion that Mr and Mrs Green had become sensitised to dust to such an extent that they would regard dust emissions as a serious problem when in fact, on an objective basis, they were not, explains the frequency of the dust emission events recorded by Mr and Mrs Green over the period March to July 2017 and stated in their evidence.[423]Furthermore, based on the totality of the evidence, I am satisfied that there was no significant difference over the course of the relevant claim period or, indeed, in the preceding period from around 2000, in terms of the nature and extent of the actual incidence of dust emissions from Kronospan. This is not so much based on my assessment of the witness evidence, because this was not something which they had tended to address (and, frankly, it is unrealistic to suggest that they could realistically have given a reliable answer to the question based around arbitrary divisions between different time periods), as upon my assessment of the evidence as to the impact of changes to the Kronospan operations over time as discussed above.[424]I would accept that, looking at the complaints data, EIRFs and the frisbee 2016/17 data and the dustdisc 2017 data, it is likely that there were prolonged periods characterised by a higher frequency of significant dust emission events, principally due to warm, dry and windy weather conditions, in the summers of 2011, 2015, 2016 and 2017. However, I do not consider that the difference between these periods and other periods was, overall, so significant as to elevate them to a different character of impact, let alone that this was all due to dust emissions from Kronospan over these periods.[425]Finally, as should be clear, I am not finding that any particular frequency of significant dust emissions, whether once a month or once a week, would (or would not) amount to a nuisance in legal terms. I am conscious of the warning by the Court of Appeal in Barr v Biffa of attempting to set a judicial dividing line by reference to fixed number of complaints or, possibly by analogy, to a fixed number of significant emission events. As I read Biffa the problem with setting a dividing line by reference to a number of complaints is that it ignores the validity of claims by those who choose not to complain even though they are neighbours of and, thus, as equally likely to be affected as those neighbours who are regular complainers. I do not read Biffa as warning against setting a judicial dividing line by reference to a fixed number of dates when individual claimants experience significant emission events. Of course, it cannot and should not be mechanistic nor applied across the board if there are good grounds for distinguishing between claimants in different locations or with different properties, where those difference are relevant to the nature, extent, frequency and impact of any emission events upon them.[426]In my judgment what I do need to do is to make a finding as to the approximate point at which the frequency and impact of significant dust, odour or noise events is such as to cross the dividing line which must be drawn between substantial and insubstantial interference.[427]As I decide at the end of this judgment, I am not satisfied that the nature, extent, frequency and impact of significant dust emissions experienced by Mr and Mrs Green or, indeed, any of the lead Claimants, amounts to a sufficiently substantial interference such as to amount to a legal nuisance.[428]However, and notwithstanding that conclusion, it is convenient at this point to set out my provisional assessment as to the damages I would have awarded Mrs Green if at the end of the trial I had been satisfied that the nature, extent, frequency and impact of significant dust emissions experienced by Mr and Mrs Green had amounted to a legal nuisance.[429]In terms of any award of damages to Mrs Green, I bear in mind that any award of general damages would reflect a number of points, including that:(a) it is compensation for the loss of amenity suffered by the whole household, so that it also satisfies Mr Green’s own claim and the experience of their daughter when living with them;(b) my assessment of regularity takes into account the impact of dust emissions from Kronospan for which it is responsible, and not the impact of dust emissions from other sources for which it is not;(c) there should be no award for odour or noise;(d) the actual loss of amenity, in terms of experiencing and dealing with the consequences of dust settlement on cars, garden furniture, house exteriors and otherwise is much less significant than in much worse cases of noise, odour or, for that matter, darker or more adhesive types of dust. Mrs Green made no claim for special damages, but I would include an allowance for some car cleaning costs and the inconvenience of taking the car to the carwash, both on a more regular basis than otherwise would have been necessary. I do not consider that I can sensibly distinguish to any material extent between the damages to be awarded in relation to different years.[430]I have considered the authorities referred to above in relation to awards of damages in similar cases. On that basis I would have assessed her claim for general damages at £850 p.a. over the whole of the relevant claim period, which is largely based on her location in the East 1 area close to the site and, hence, more affected by log-yard emissions than others further away from the site and further south. Whilst that is significantly less than the awards (updated for inflation and the general uplift in general damages) in the cases to which I was referred by the Claimants’ counsel, that is justified in my view by the relative infrequency of such events and also the relatively modest impact on Mr and Mrs Green’s enjoyment of their home when compared with the very significant impact in the very serious noise cases and, even, the serious odour case of Norton.[431]If I am wrong in relation to my assessment as to the need for dust emissions from Kronospan to be the principal cause of the substantial interference from dust, then it would follow that my assessment should be based on a relevant significant dust emissions event once every two weeks on average rather than once every month. If that was the case, then I would have increased the damages award by another two thirds, i.e. from £850 p.a. to £1,420 p.a. Amy Bell[432]Mrs Amy Bell is 41 years old and was the first of the lead Claimants to give evidence. She has lived with her husband Stuart, who is also a Claimant, and their two children since September 2012 at their house at Castle Walks.[433]This is about 500m south of the factory and separated from it by an area of green space, referred to by her as the Cadbury’s fields. It is in the South area, in the same street as her fellow lead Claimants Kelly McAll (who is a friend of hers) and Gareth Hughes (an acquaintance).[434]Kronospan did not call any witnesses from the South area. They had served a witness statement from a Mr Noori, who ran a local bistro, but he did not attend and gave no good reason for his absence so that Kronospan, entirely realistically, did not apply to put forward his witness statement as evidence upon which the court could rely.[435]Mrs Bell is an accountant by profession. Mr Bell is an aircraft engineer who worked away from home on a regular basis. He did not make a witness statement, even though he was party to much of the contemporaneous correspondence in which he made similar complaints to those made by his wife.[436]Mrs Bell completed a questionnaire in September 2017, made witness statements in December 2018 and September 2022 and provided a schedule of special damages in December 2018.[437]Having moved away from Chirk in 2005 to live in Lincoln they returned in 2012, when their eldest daughter was only one year old, to be closer to their parents.[438]In closing submissions Kronospan’s counsel submitted that her evidence was unreliable and that she was anti-Kronospan activist, motivated in large part by concerns about the health impact of Kronospan’s activities, who had tried to involve others to join in making complaints but had failed to do so. They also submitted that they had both become increasing sensitive, strident and willing to complain. I accept these criticisms to an extent, although I think them inflated. Overall, I consider that she was fundamentally honest but that her evidence was also significantly overstated.[439]For example, despite having put the house on the market due, so they said, to the impact of Kronospan emissions, they have continued living there throughout, even though they have received at least one offer. They also more recently installed a hot tub, intended for use in their garden. Whilst none of this means that they cannot succeed in their claim for nuisance, it does operate – as it does in relation to other lead Claimants with a similar complaints history - as a reality check as to the nature, extent and frequency of the dust, odour and noise emissions complained of as against Kronospan over this period.[440]They made 12 complaints in the relevant claim period, all relating to dust on their cars. Most were substantiated by Kronospan on investigation and the majority ascribed to process incidents. However, process incidents were not always identified as the cause in relation to Castle Walks. In cross-examination Mr Baker was taken to a RHR from 31.7.24 in which he recorded:
“Everywhere is very dusty at the moment over the last few days I have witnessed some very dusty operations on the log-yard which we can do very little about”
. As Mr Hart observed, there was of course always the option of throttling back or ceasing operations. The alternative, which appears to have been what happened most often, was to acknowledge that in such cases Kronospan’s operations were causing a nuisance (in non-legal language) and to offer a free car wash token and, very occasionally, monetary compensation.[441]My clear impression from the evidence is that when the wind was blowing from Kronospan in their direction and with sufficient speed, especially when there were significant process incidents, they did experience dust problems.[442]However, I am satisfied that during the relevant claim period this was not a regular occurrence; certainly by no means as frequent as weekly or fortnightly as she said in her first witness statement. After 2017 their complaints increased, but there is no sensible basis for this other than their increased sense of grievance against Kronospan and their concern that, despite the lack of hard evidence, there are potential health issues with its emissions. Her evidence was that there had been no improvement from 2018 onwards, which appears inconsistent with the improvements which had been made in relation to log-yard emissions if that was indeed a contributory cause.[443]As to odour, her evidence was of a woody smell which she did not find unpleasant, with an occasional chemical component which was more noticeable outside the house, especially when walking the family dog on the Cadbury’s fields. Her evidence was inconsistent as to the frequency of this chemical smell and I was not satisfied it was anything like a regular occurrence. In March 2021 a complaint to WCBC about dust and an acrid smell was very speedily investigated and recorded no evidence of any dust deposits and odour from Mondelez but not from Kronospan.[444]As to noise, her evidence was of some background noise, which she was used to, and occasional loud banging noises a few times a month. She said in evidence that these tended to happen at night and she would telephone Kronospan because they had been able to fix the problem straightaway on occasions. In February 2021 she had submitted a noise application recording to WCBC, which their environmental officer Mr Zorn said at the time sounded like process noise but not unusual noise. What was played in court seems to me to be reasonably intrusive, in the context of being recorded from an open upstairs bedroom window on what appears to be a clear night, although if the windows had been closed the noise would have been far less audible. Mrs Bell described this as an example of an elevated noise level.[445]Like almost all of the Claimants, her claim for special damages was poorly particularised and contained claims which could not realistically be sustained. In fairness to her, her claim was more restrained than many. In particular, she had chosen not to make a claim for any additional window and conservatory cleaning costs. She said, and I accept, that she was not making this claim for the money.[446]She had, however, made a claim for the (unreceipted) cost of £100 for a power washer, when in my view it was unrealistic to think that dust emissions from Kronospan were the sole or substantial reason for that purchase, given the ubiquity of such items amongst houseproud people with homes, external paved areas, garden furniture and cars to clean. She had also made a claim for an additional twice weekly trip to a car wash to wash away the dust build up, when her oral evidence did not support that claim basis, and when there was no real basis for that assessment of additional cost, especially once she confirmed in evidence that Mr Bell used the power washer to clean the cars.[447]Also, like almost all of the Claimants, she also complained of having to clean garden furniture due to the dust, but accepted that it would be normal to wipe down the furniture on every occasion before eating. Many – although not Mrs Bell – had made extravagant claims for extra cleaning materials costs which could not be justified other than on the most modest of bases and were almost invariably wholly unevidenced.[448]My strong impression is that the use of standard form questionnaires, coupled with what I can only conclude was a desire not to stint on the claims made, led these Claimants to make extravagant and unjustified claims.[449]I also found Mrs Bell’s evidence unconvincing as regards dust from Kronospan (or elsewhere, for that matter) coming into her house on anything more than the rarest of occasions. The same is true of the other witnesses who gave evidence to this effect. As a matter of commonsense, that could only happen where windows or doors could be, and were, left fully open for an extended period at times of substantial dust emissions from Kronospan at times of high winds from the direction of the Kronospan site.[450]The evidence of Matthew Rogers was relevant to Mrs Bell’s claim, because he was called as a witness on the basis that he was also a good friend of Mrs Bell and had visited her regularly since 2015, when he moved away from Chirk, having previously lived in Lodgevale Park. His witness statement said that he attributed some of the health issues he had suffered since childhood, including asthma, to Kronospan’s dust emissions and that it had caused problems at his former property and all over Chirk.[451]He had also worked for Kronospan at various stages and was dismissive of its safety culture. He also referred to loud noise, especially at night, and to a wood-like smell.[452]He said that he had regularly returned to visit family and friends, including Mrs Bell, on average once a week since leaving Chirk and had noted the same dust problems as well as noise and smell on such visits.[453]Although he came across as a likeable and apparently genuine witness he openly agreed that he shared with Mrs Bell a mutual dislike for Kronospan including, in his case, his own opinions as to its safety culture. He also sought to suggest that his move away from Chirk was based on his concern about Kronospan, when in truth it appeared to be based on where he was able to buy a property for his family to live in. I did not, for these reasons, find his evidence particularly reliable, whether in relation to what he observed when visiting Mrs Bell and her family or otherwise.[454]My essential conclusion in relation to Mrs Bell is that I am satisfied that on an objective analysis Mrs Bell, like others in the South area, was relatively little affected by dust, odour and noise emissions from Kronospan. That is because of the distance they lived from Kronospan, especially from the log-yard area from where the majority of any log-yard emissions would tend to emanate, the fact that it was relatively rare for the prevailing winds to blow from Kronospan to the South area, and the fact that unplanned emissions were relatively rare when spread over the whole of the relevant claim period anyway. I am satisfied that Mr and Mrs Bell had become so sensitised to dust, odour and noise emissions from Kronospan that they have exaggerated the frequency, nature and severity of these emissions with a view to seeking to force Kronospan to cease emitting what they regard as a health hazard.[455]Applying the same analysis as I do with Mrs Green, I would accept that Mr and Mrs Bell experienced a significant dust emission event due principally to dust emissions from Kronospan on average once every three months over the relevant period.[456]I would also find that the noise and odours complained of do not reach the level of a legal nuisance, whether alone or even in concert with each other and with the dust emissions.[457]On that basis, if I had found that Mrs Bell was entitled to a claim for damages for nuisance I would have assessed her claim for general damages at £300 p.a. over the course of the relevant claim period, based on her evidence and her location in the South area. I would not have awarded special damages and the amount for general damages includes an assessment of the extra time spent in cleaning the car based on her evidence and her location.[458]If I am wrong in the need to be satisfied that dust from Kronospan was the principal cause of the substantial interference then again I would also have increased the award by two-thirds of the annual assessment over each year. The same is true in all of the other individual cases identified below. Whilst in might in theory be possible to reach different findings in relation to each different area as to the number of occasions when dust emissions from Kronospan was the principal cause, when it was a substantial or significant contributory cause, and when it was not even a contributory cause, I do not think that it is likely to have been substantially different in each area or, therefore, that any difference would result in any significantly different upwards assessment. Gareth (Lars) Hughes[459]Mr Gareth Hughes (also known by his middle name Lars) is 51 years old. He lived with his wife Mrs Tracy Hughes (also a Claimant) and their four children at Castle Walks from August 2009 to October 2018, before moving to the nearby town of Ruabon.[460]He completed a questionnaire in November 2017 and made a witness statement in November 2018, shortly after moving away from Chirk.[461]Mrs Hughes grew up in Chirk and Mr Hughes grew up nearby. He said that they were aware of the Kronospan factory and the problems it caused before moving in, but didn’t realise how bad they were.[462]He was, I am afraid to say, an unconvincing witness for the following reasons.[463]He said that one of the reasons they sold their house at an undervalue was because of the problems. However, a social media post at the time indicated that the real reason was to obtain more space. They were clearly happy to spend time a lot of time in the garden as a family, purchasing garden furniture and children’s play equipment to enjoy the garden.[464]He had said in his witness statement that there were what he described as bad blowouts a few times a year. He suggested in cross-examination that this was wrong and they were more frequent, which I found unconvincing. On many occasions in his evidence he would, when taken to his witness statement or questionnaire, say that the problem was worse or more frequent than was stated there. He seemed determined to exaggerate the scale of the problem.[465]Even in his witness statement he had said that the dust was worse in the two years leading up to the making of his witness statement, i.e. from November 2016 onwards. His evidence however was also that it was because of the worsening dust levels that Sarah Williams and others had started a group and a Facebook page and had recruited support from politicians which, in the end, did not materialise for reasons which he attributed to their supposed connections with Kronospan, after which Hugh James became involved. But these events pre-dated November 2016 by some considerable time.[466]He also gave evidence as to what he strongly believed was a connection between the MDF produced by Kronospan and cancer-causing carcinogens, despite the absence of any medical / scientific evidence to that effect. Despite the lack of such evidence, he also believed that Kronospan was responsible for two of his children developing asthma and the death of a nephew following the fire at Kronospan in 2020.[467]I do not doubt the sincerity of his evidence, but it is seemed to me he had a predisposition to online conspiracy theories, and I find it difficult to accept him as a reliable witness of fact.[468]He said that as well as a burnt wood small there were acrid burning chemical smells associated with a haze on certain days. He had said in his witness statement that this had stopped the family using the garden, but he was unable to explain pictures on social media in April 2018 which showed the family enjoying time in the garden.[469]He did not complain about noise from Kronospan, saying that it did not really affect either him or his wife although even then, when cross-examined, he could not resist seeking to change this a little, referring to “the odd -- some bang, some weird noise, like a jet engine going off now and again”.[470]As with Mrs Bell, on the evidence I would accept that he experienced a significant dust emission event due to dust emissions from Kronospan on average no more than once every three months over the relevant period. This is consistent with what he said in his witness statement and is also consistent with this happening at times of significant unplanned emissions at times of high winds blowing dust from Kronospan to the South area.[471]I also find that the noise and odour complained of does not reach the level of a legal nuisance, whether alone or even in concert with the dust emissions.[472]On the same basis, if he was entitled to damages for nuisance I would have assessed his claim for general damages at £300 p.a. over the course of the relevant claim period, based on his evidence and location in the South area. He did not make any claim for special damages, but this would include an assessment of matters relevant to any claim for special damages which he might otherwise have made. Kelly McAll[473]Ms Kelly McAll is 41 years old and lived at Castle Walks with her then partner James Roberts (also a Claimant) and their daughter from December 2007 until October 2018, when they purchased and moved to 9 Castle Walks (Mr Hughes’ previous property), although they continue to own No 34 and rent it out. She completed a questionnaire in November 2017 and made witness statements in November 2018 and August 2022.[474]She grew up in Chirk and has lived there all her life. She said that dust was a problem when she was growing up, for example when they had to come inside from the playground due to dust. Nonetheless, as is evident, the fact that Ms McAll has remained in Chirk all her life, purchased one property in 2007 and, significantly, another in the same street in 2018, is compelling evidence that her contemporaneous view was that the continued benefits of living in the same part of Chirk outweighed any problems she had experienced, due to dust or otherwise. In paragraph 14 of her first witness statement she said she bought the house at a discount because Mr Hughes was “desperate to sell to get out of Chirk because of the problems caused by the Site”, whereas in cross-examination she was unable to say either that she knew that this was his reason for moving or that this was why he was willing to sell at a discount.[475]She made only three complaints within the relevant claim period, all relating to dust, one of which included a complaint that dust particles had been found on the windowsill of her daughter’s bedroom following an unplanned emissions event.[476]I agree with Kronospan’s submission that what emerged from her evidence was that her primary concern related to her perception of the potential health impact of the dust, especially where it entered the house. I also agree with the submission that this had caused her to exaggerate (albeit not dishonestly) the extent to which Kronospan dust had entered the house. She accepted in cross-examination that she could cope with the dust generally, but that it was the health concerns which worried her.[477]She did not (and does not) complain about noise, but did make some complaint about odour, although that only related to a woody smell, and then only around once a month, which cannot in my view be described as objectionable.[478]As to her claim for special damages, she had provided no evidence in relation to cleaning costs (whether by way of sample receipts or at least by way of some explanation of how the costs are made up by way of narrative explanation). The claims for the cost of a pressure washer and vacuum cleaner cannot in my judgment be sensibly claimed as substantially causally related to the dust, for essentially the same reasons as I gave above as regards Mrs Bell. The claim for car wash costs was put on a different basis in the questionnaire from the way it was put in the schedule and is not supported by evidence.[479]She called her mother, Caryl McAll, who lives in Lodgevale Park and visits her daughter’s home regularly. She is not a Claimant. Her explanation was that this was only because she missed the deadline to make a claim. Her evidence supported her daughter’s evidence in relation to what she said she had observed, both in Chirk generally and whilst visiting her daughter. Even reading her statement, it seemed to me to be exaggerated in terms of what she sees whilst walking around Chirk. Her evidence about the amounts of dust inside her daughter’s house seemed implausible, as did her reference to a “thick layer of dust” on the trampoline. She had said that she had never noticed any dust extraction system when working at Kronospan – as she had done for a short time – when it was obvious that such systems were present. In the circumstances, I am unable to place any significant reliance on her evidence.[480]As with Mrs Bell, my provisional view that if I was making a decision only on the basis of the factual evidence referred to above I would accept that Ms McAll experienced a significant dust emission event due to dust emissions from Kronospan on average once every three months over the relevant period. I also find that the noise and odour complained of does not reach the level of a legal nuisance, whether alone or even in concert with the dust emissions.[481]On the same basis I would have assessed her claim for general damages for nuisance at £300 p.a. over the course of the relevant claim period, based on her evidence and her location in the South area, and to include an element of compensation for any claim for special damages. Donna Thomas[482]Mrs Donna Thomas is 49 years old and had lived with her husband Mr Nick Thomas (who is also a Claimant but who has not given evidence) at Longfield (in the outer East 3 area) until February 2012 and then at John Street (in the outer East 1 area, close to another lead Claimant Maureen Jones and two of Kronospan’s residential witnesses Anthony Gray and Alistair Williams). One would have expected their experiences to have been broadly similar to each other. When I refer to her evidence it is in relation to John Street, save where I state to the contrary. This property is around 300m from the Kronospan site.[483]It was submitted by Kronospan that her evidence in her witness statements was significantly exaggerated and her special damages claim grossly inflated without supporting evidence, so that I should place little or no reliance on her evidence. In short, I accept that submission.[484]Her questionnaire said that since she had lived at the property there was “dust build up every day”, that they have to clean the windows twice weekly as well as the garden furniture whenever they sit outside, and that they have stopped eating outside as a result of concerns about what they are consuming. She also referred to her sleep being “often disturbed” from site noise (in her first witness statement she said that it was far worse at John Street – about 8 or 9 out of 10, where 10 is unbearable) and a “terrible” odour problem, like “rotting fish or a rabbit’s hutch” on a handful of occasions every year. She said that they were paying for an additional window clean once a month and for car shampoo and bleach once a fortnight.[485]In her first witness statement she said that they had to keep the windows closed to stop dust from getting inside. In her second witness statement she said that she had to clean the house almost every day to keep the dust down. She abandoned this evidence in cross-examination, saying that she had meant it was dust in the window sills when they were opened and that she only cleaned once a week, which of course is far less unusual. The two accounts are wholly inconsistent with each other.[486]She said that a hot tub (which she had purchased in around 2017-18, at a time when on her case she was unhappy about eating when sitting outside) had been ruined by the dust.[487]However, neither she or her husband had made any complaints during the relevant claim period or, indeed, until 2020 after a fire at the Kronospan site. She accepted in cross-examination that she had only really started noticing the dust after something was posted about it on Facebook. She has not produced any photographs taken within the relevant claim period or even up to 2022, when there was a bad process incident at Kronospan.[488]This was notwithstanding that in her first witness statement she had said that the dust problem was worse at her first house (i.e. Longfield) than at John Street, ranking it as 8 out of 10, where 10 was unbearable. It seems wholly implausible in my judgment that if the problem was that bad that she would not have made even one complaint. It is also wholly implausible in my judgment that the problem could have been worse when the first property was significantly further away from Kronospan and further to the south-east than the second. Photographs posted on social media showed the family making full use of the garden at the property, with no obvious evidence of dust and I simply do not accept that they did not eat outside.[489]Her evidence was that her husband only washed his van once a month which is plainly not at all unusual.[490]It was put to her that when her evidence was considered by reference to what she had said in court rather than in her written evidence it did not conflict significantly with the evidence of her neighbour Mr Gray in his witness statement. I agree with that analysis. Her evidence in her written evidence also seems to me to be inconsistent with the written evidence of Maureen Jones, another lead Claimant and relatively close neighbour.[491]The claim for special damages is hugely exaggerated, even based on what she had said in her witness statements let alone on what she had said in evidence in court. Nor was it assessed in any realistic or sensible way on the basis of a claim for additional costs incurred. Given her evidence in court, I do not consider that she has demonstrated any special damages claim.[492]Based on the overall evidence and, particularly, on the evidence of the witnesses living in this outer East 1 area, I assess that she experienced a significant dust emission event due to dust emissions from Kronospan on average once every two to three months over the relevant period whilst she lived at John Street, whereas I would not have accepted that she experienced any significant dust emissions of any kind due to Kronospan on any frequency even approaching every three months on average whilst at Longfields in the outer East 3 area. This is on the basis that the outer East 1 area would, due to its location, have been affected by a mix of log-yard emissions and unplanned emissions but, due to its location some distance from Kronospan, much less than those living in the East 1 near and mid areas. In contrast, I do not accept that the outer East 3 area would have experienced any but the most occasional of significant log-yard emissions and a very limited occurrence of unplanned emissions.[493]I also find that the noise and odour complained of does not reach the level of a legal nuisance, whether alone or even in concert with the dust emissions.[494]On the same basis, if she was entitled to damages for nuisance I would have assessed her claim for general damages at £400 p.a. over the course of the relevant claim period whilst she lived in the outer East 1 area, which would of course need to be apportioned as to the first year, and to include an assessment of matters relevant to any legitimate claim for special damages which she might have made. Ronald Davies[495]Ronald Davies is 72 years old and has lived at George Street for 37 years. This is in the East 1 area broadly speaking half way between Susan’s Green’s house and Mauren Jones’ house, around 150m from the site boundary (what for convenience may be called the mid-East 1 area). His evidence in his questionnaire and in his witness statements was completely different to his evidence in court. The discrepancies are so great as to prevent me from placing any reliance upon his evidence.[496]In short, his written evidence gave a detailed account of problems with dust from Kronospan on a daily basis, which covered his car and garden furniture and would enter his house unless his doors and windows were closed, and which also prevented him from using his garden. He also complained of “dreadful” noise at night and a daily smell of sawdust which he described as “offensive … you can almost smell [it] in the air”. He said that he had made historic complaints which had not made any difference. He said he had to purchase additional cleaning materials. He had worked at the Mondelez factory for 32 years and compared Kronospan unfavourably with Mondelez. He did accept in his witness statements that things had improved somewhat over the past few years[497]He had difficulties with reading and writing, so that his two statements had been read to him by a local court officer and solicitor respectively before he signed them. It appeared from his evidence that the statements had been prepared by his solicitors following information provided by him to them. It also appeared from his evidence that his real motivation in giving evidence was to explain what he saw of what was happening at Kronospan whilst working at Mondelez, rather than because of any particular problems he had experienced at his own house. He volunteered at this stage of his evidence, without even being asked, that he was not bothered about dust personally or, indeed, cleaning his house or even using his garden, let alone keeping it tidy. He said that he was really giving evidence to assist those who were affected. He accepted that things were a lot better over the last eight years. He said that he had never smelled anything.[498]He gave his oral evidence in an open and engaging manner, so that in other circumstances I might have been inclined to place reliance on it, at least in general terms. However, given the fundamental inconsistencies between his own account in court and the account given in his witness statements, which had been read out to him by independent persons both connected with the court system before signing them, it is impossible for me to place any weight on his evidence overall. How these witness statements came to be produced in the terms which they were I really cannot say, other than that he must (at best) have been grossly careless as to whether what had been written was remotely truthful.[499]David Thorley was called immediately after Ronald Davies, having assisted him as his friend in reading his witness statement in court. He had not made a witness statement but a witness summary had been provided which he adopted in evidence. However, given that the witness summary stated that he had seen and confirmed Mr Davies’ witness statement, and given that he had also stated that he would assist him in cleaning dust from Kronospan, when it was clear from Mr Davies’ evidence that this was simply not the case, it is impossible for me to place any weight on his evidence. Again, how the witness summary came to be produced in the terms which it was it is impossible for me to say. Under cross-examination it became clear to me that there was little if any specific reliable evidence he could give.[500]Mr Davies did not make a claim for special damages and, given his oral evidence about the complete lack of any impact on him from the dust, noise or odour, I would have been unable to assess him as having actually suffered any loss of amenity justifying an award of general damages over this period.[501]It may however be useful for me to indicate what I would have awarded had his evidence been broadly consistent with the majority of the other lead Claimants. On that basis I would accept that as a resident in the mid-East 1 area he would have experienced a significant dust emission event due to dust emissions from Kronospan on average once every two months over the relevant period. I would also find that the noise and odour complained of does not reach the level of a legal nuisance, whether alone or even in concert with the dust emissions. On the same basis I would have assessed his claim for general damages for nuisance at £600 p.a. over the course of the relevant claim period, to include an element of compensation for any claim for special damages. John Jones[502]Mr John Jones is 69 years old and has lived at Maes yr Ysgol with his wife Mrs Eileen Jones since 1996. This is in the inner East 3 area, fairly close to the Kronospan site boundary and just south-east of the site entrance. He has lived in Chirk almost all his life and worked as a project engineer until his retirement in 2022. They have three adult children who have moved away from Chirk.[503]Another lead Claimant witness, Mrs Nina Williams (see below), lives in the same street. Kronospan’s witness, Mr Steven Thomas, who lives nearby, also gave evidence (see below) and another of its witnesses, Mrs Brenda Wilford (who was not called – see below) was a regular attender at the nearby Methodist Church. Although shown as living in the East 2 area, another of Kronospan’s witnesses, Andrea Twigg (see below), lives not too far from Maes yr Ysgol.[504]In his questionnaire Mr Jones described regular deposits of dust, usually fine sawdust but sometimes small fibres, which he had been advised by Kronospan comes from the stockpiles at the site, as well as more occasional fallouts, a few times a year. He described having to wash the car on average every two to three weeks and having to wash the garden furniture every time they wanted to use it, which was their greatest nuisance. He made it clear however that this did not stop him using the garden for outside living, except occasionally due to very unpleasant odours.[505]He also described having to keep the doors and windows closed to avoid dust ingress. He said that the dust was worst in the summer months, during dry weather and strong winds. I accept this evidence based on the contemporaneous RHRs and other documentary evidence.[506]He attached photographs of dust on the garden table in 2016, on his car in 2016 and 2017, and on earlier dates, accepting in cross-examination that these were occasions of bad fallouts. He said that he had made complaints both to Kronospan and to WCBC since the late 2000’s, typically after the more extreme fallout events. He said that he had made more than the one recorded complaint from 11.12.16 which related to a process incident and that from 15.10.12 which related to noise. It was put to him that others might pre-date 2011 and post-date 2017, given that his first witness statement was made in November 2018. I accept his evidence that he had made some more complaints over that period. As he said, since both he and his wife were working at the time and thus unable to be available for a visit from Kronospan, it may well have been that they were not investigated and hence not documented.[507]From May 2018 Mr Jones started taking photographs and recording events on a more regular basis, aiming to show “normal” dust as well as dust from fallouts. He explained in his first witness statement, made in November 2018 before his retirement, how the combination of the normal dust and the fallout dust meant they had to clean the cars and garden furniture as well as the external windows more regularly than they otherwise would.[508]He rejected the suggestion that construction works at an adjacent residential home a few years ago could have caused this dust and also that road traffic could have been the cause, given their location in a quiet cul-de-sac. He did not accept that there had been any improvement. I do not consider he is reliable about the absence of any dust impact from the construction works and, given the test results referred to below, I am satisfied he was wrong in rejecting the impact of dust particles released from road traffic as a significant cause.[509]He accepted that he had made a large number of complaints since this time, including a large number of email complaints and taking many photographs, copying in individuals at Kronospan and WCBC and well as other residential claimants, local elected representatives and Hugh James.[510]In his third witness statement Mr Baker observed that six of Mr Jones’ complaints after the end of the relevant claim period were consistent with process incidents. He did not however suggest that his inspections of others demonstrated positively that they were unconnected with Kronospan.[511]Nonetheless, I am satisfied that Mr Jones has become far more aware of and liable to complain about dust emissions since 2018 and to ascribe all such dust emissions to Kronospan, even when that is in my judgment not the case.[512]He also referred to noise from the site, especially on a still summer evening, noticeable at the back of the property closest to the site. He also referred to an unpleasant wood chip burning smell, although he accepted that his first complaint about odour had not been made until 2019.[513]He came across to me as a reasonably careful and moderate witness, albeit with strongly held views about Kronospan and its operations and impact which have clearly become something of a crusade for him in the run up to and since his retirement, particularly after he began working from home during and post lockdown.[514]He took dust samples in 2021 and 2022. One was analysed by Alderley in October 2022, who found that the “overwhelming majority of this sample was found to contain organic material in the form of various wood and plant fibres and particles”. These could have come from Kronospan or from trees, shrubs or other plants.[515]Dr Datson was asked in cross-examination about this sample. As he did not dispute, and as was evident, it was similar in appearance to the wood fibres seen on the control samples and at the site entrance and the Co-op, save that the fibres were a lot more densely packed, which might well be explained if the dust had been swept together by Mr Jones from where it had been deposited. Dr Datson rightly observed that he was unable to comment on the circumstances in which the sample was obtained. Since, however, they were taken of dust which had collected on his car and had the appearance of clean wooden fibres I am satisfied that they were the consequences of an unplanned emissions event.[516]In closing submissions Kronospan described him as having becoming unduly sensitive to dust over time and having become something of an activist against Kronospan. I would accept this as accurate.[517]In my judgment his property would have been affected by unplanned emissions and, albeit to a lesser extent than the more north-east areas, to some log-yard emissions, perhaps from the more southerly PAL pre-production area. I find that he experienced a significant dust emission event due to dust emissions from Kronospan on average once every two months over the relevant period. I also find that the noise and odour complained of does not reach the level of a legal nuisance, whether alone or even in concert with the dust emissions. On that basis I would have assessed any claim for general damages for nuisance at £600 p.a. over the course of the relevant claim period, based on his location in the inner East 3 area. Helen Price[518]Mrs Helen Price is 52 years old and has lived at Walden Crescent with her husband Mr Steven Price since 2002 along with their two daughters. This address is in the outer East 2 area, not as close to the Kronospan site as another lead Claimant Mrs Sarah Williams (see below). As noted in relation to John Jones, Andrea Twigg was a witness for Kronospan who is placed in the East 2 area but who, in fact, lives on the border of the East 2 and East 3 areas, not very close to Helen Price or Sarah Williams.[519]Whilst I do not doubt her genuineness and essential honesty, which came through in her oral evidence, she has been motivated primarily by concerns, which are undoubtedly genuine but are not supported by medical evidence, about the potential health impact of the dust and odour-related emissions from the Kronospan site. I am satisfied that this has led her to exaggerate to a significant extent the actual impacts of the dust and other emissions on her and her family and house over the relevant claim period. She had also verified and advanced a hugely over-inflated schedule of special damages. In the circumstances I am unable to regard her as a reliable witness.[520]In her questionnaire she said that the dust had got worse since 2014 and “builds up like a pile of sand” and is a “constant presence”. She said that she was “constantly washing the windows, cars and garden furniture” and it prevented her from sitting out in the garden in the evenings or hanging the washing out. She also complained of a “grinding” noise at nights and an unpleasant odour on a weekly basis. Her witness statements were to similar effect. She complained about dust getting into the house and her having to clean her bedroom every day.[521]She was initially unwilling to admit that she knew Sarah Williams as a friend or that she had been involved with her, Gareth Hughes and others in an informal Kronospan action group before this litigation began.[522]She had also said in her evidence that it was not until around 2015 that she felt that she could not live with it. It seems to me that what really happened was that she became involved in the action group as a result of health concerns in relation to her children, particularly after the incident in July 2016, when her children and other children at the same school in Chirk were brought in due to emissions from the site, and it was at this point that she became convinced that dust emissions had always been a serious problem. She accepted in cross-examination that it was her perception of the health risk to her children which was motivating her in giving evidence.[523]She had made a substantial claim for special damages totalling £3,708 over a seven year period from 2011 to 2018 on the basis of spending £7 monthly on cleaning products as well as UPVC cleaner and two power washers over that period, as well as a car wash at £7 weekly and a window clean monthly at £6 each.[524]In oral evidence she said that she had washed her car two or three times a week in the relevant claim period, which seemed to me to be wholly implausible. Even her pleaded case and evidence in her witness statement of once a week seems a little implausible for a busy family who had not made any complaints to Kronospan over this period until 2016 (when she complained to WCBC in relation to smoke from a chimney stack) and had no photographs of the dust. Her oral evidence that she cleaned the garden furniture once a day when she was using it on a daily basis also seemed implausible to me. No attempt had been made to allow for cleaning costs which she would have incurred anyway.[525]When she was asked in cross-examination about this claim she accepted that she did not think that she had incurred these as additional costs and, anyway, could not remember how much it had cost. She was unable to remember any details about the power washers. She accepted that she would have incurred the window cleaning costs anyway. She said, when taken to the schedule, that she didn’t know why she had claimed almost £4,000 in total.[526]She had not made any complaint about noise until January 2022 and her explanation in cross-examination for not doing so was not convincing.[527]If I had held that she had suffered a legal nuisance from dust emissions I would have accepted, based on her location in the mid-East 3 area that she experienced a significant dust emission event due to dust emissions from Kronospan on average once every two to three months over the relevant period. I also find that the noise and odour complained of does not reach the level of a legal nuisance, whether alone or even in concert with the dust emissions.[528]On the same basis I would have assessed her claim for general damages for nuisance at £400 p.a. over the course of the relevant claim period, based on her evidence and her location in the mid-East 3 area, which would include an element of compensation for any claim for special damages which might have legitimately been advanced. Sarah Williams[529]Mrs Sarah Williams is 52 years old and has lived at Coronation Drive with her husband Mr Stephen Williams since November 2006 with their two children. This is in the inner East 2 area, around 150m from the Kronospan site boundary and “a stone’s throw” from Holyhead Road, in the area of the Co-op shop. She had been a town councillor and a member of the CELG since 2016 and has, therefore, been something of an unofficial spokesperson for those who have actively protested against emissions from Kronospan.[530]Her husband is also a Claimant and, although he provided two witness statements, he did not attend to give evidence. There was no specific explanation why he was not called, but his statements were consistent with hers and there is no obvious reason to think that his oral evidence would not also have been broadly similar, both good and bad. He had worked for Kronospan until around 2012, and his first witness statement had included some evidence in relation to that employment, but he expressly stated that this was not the reason for his joining in with this claim.[531]Like other Claimants, their property has a good sized garden with – in their case – no less than three patio areas, one with table and chairs and another which had a hot tub from around 2015 – 2018. They had also built a partially covered sports bar in one of those areas. Like other Claimants, therefore, they have continued to use the garden and to spend time and money on improving it notwithstanding their complaints about the impact of the emissions from Kronospan.[532]In their questionnaire, signed by both, she identified dust from Kronospan as the biggest issue, experienced “almost every day” and leading to a need for “constant cleaning outdoors and indoors” and with a “large impact on [their] use of the garden”. She also complained about many “large blow outs of dust” when dust can “fall like snow”. This was echoed in her witness statements and in her evidence at trial.[533]She also complained in the questionnaire about “constant noise which affects us every day” and worse at night once the daily background noise is reduced. In her oral evidence she said that this disturbed her sleep most nights, identifying in particular the sound of metals being emptied into bins which she had complained about to Mr McKenna at the town hall meeting she attended in 2016.[534]She also identified in the questionnaire odours smelling like “gasses, wood and glue” and a “blue haze” from the chimneys with a heavy chemical odour, sometimes so thick that it could be tasted. She says that the odour occurs every other week with varying intensity. She said that these problems had always been there but that “over recent years the issues have got more ridiculous”. Nonetheless, she accepted in cross-examination that this was less of an issue for her than the dust and the noise.[535]She said that she had begun complaining about 16 years ago, at the time of their first child’s birth, due to concerns about the impact of the issues from the site upon her. She said that they initially complained to Kronospan nearly every week, by email, telephone or verbally and that they also complained to WCBC, but eventually stopped complaining due to the lack of response.[536]Only three complaints had been made by them during the whole of the relevant claim period.[537]The first was from 2011 in relation to dust on garden furniture, which Kronospan acknowledged was genuine and due to exposed source emissions in very windy conditions and in respect of which car wash tokens were given. Given her claim for special damages (see below) it is difficult to see why she did not subsequently report similar events and obtain the same tokens. If she had reported these incidents and not received any acknowledgment or investigation and car wash tokens I have no doubt that she would have raised it, either to Kronospan or to WCBC (or both) and later in CELG meetings which she attended.[538]The second was from 2016 in relation to dust and smell where the complaint was that her children were breathing carcinogenic dust. This date was contemporaneous with a recorded process incident at Kronospan, although as indicated there is no evidence that any dust emissions from Kronospan were harmful to health. This is an indication of what had become her primary motivation for complaints by this stage.[539]The third was from 2017 in relation to dust which, on investigation. Kronospan recorded as most likely from the log-yard due to excess dust from the silo conveyors during commissioning.[540]Mrs Williams said in cross-examination that she was not a “constant moaner”. However, it is plain that she was involved in the wider campaign from an earlier stage and, in my judgment, primarily due to concerns about the suspected carcinogenic impact of emissions (about which she has conducted extensive research) rather than due to the loss of amenity impact of dust, odour and noise.[541]She said that she had no faith in the assurances given by Public Health Wales at a public meeting, because she had lost faith in the assurances which had been given, and “that’s why we are here today … to make change, better change”. I entirely respect that point of view, but it is plainly the primary driver behind her approach to the case and her evidence.[542]She had started a diary, but not until November 2021.[543]She was cross-examined about samples which she had been given by two householders in the North-East area. She also said in evidence that there was also one which she had taken from her own garden, which she had not referred to in her witness statements and which had not been referred to by Mr Minshall in his record of his visit on the date in question (6.8.18). She accepted she might have been mistaken about that.[544]She had also described problems with dust becoming wet and sticky, which was not something others had complained about. She said that she had thrown away some plastic garden furniture due to having to scrape off this sticky residue, but there is no photographic or other evidence to that effect. Nor was there photographic evidence to support her claim that the sports bar roof had become so dirty due to dust from Kronospan that it had to be replaced at the beginning of the year.[545]She was also cross-examined about various other matters which were identified by Kronospan’s counsel in closing submissions as affecting her credibility. I agree that these points, relatively small in themselves, combined with what I regard as the exaggeration of the frequency and seriousness of the dust, odour and noise emissions as referred to above, lead me to the conclusion that I cannot rely on the accuracy of her recall in relation to the detail of events. In my view, similar to Mrs Bell in particular, she is essentially an honest person who has, however, become so involved in the campaign against Kronospan, driven primarily by health concerns, that she has come to significantly exaggerate the impact of Kronospan on her, her property and her family.[546]I am also unimpressed by her special damages claim. In her questionnaire she identified having purchased “copious amounts” of cleaning products for house and garden, around £20 pcm extra, as well as car cleaning costs, sometimes twice weekly, at £5 each. She had no receipts. In the schedule it was said that she used 10 additional bottles of furniture polish to clean dust settled on “internal surfaces of the property”. That seems to me to be inconsistent with her evidence about the principal effect of the dust being external and I regard this claim as implausible. The claim for eight extra bottles of shampoo a year also seems to me to be speculation, especially since it is additional to a claim for eight car washes a month over the same period.[547]When she was asked about this claim she did say that her financial losses were “small and unnoticeable really”. When asked for details she referred to bleach spray and UPVC spray cleaner, which had not been included in the claim.[548]I accept that she experienced a significant dust emission event due to dust emissions from Kronospan on average once every two months over the relevant period. I also find that the noise and odour complained of does not reach the level of a legal nuisance, whether alone or even in concert with the dust emissions.[549]On the same basis I would have assessed her claim for general damages for nuisance at £600 p.a. over the course of the relevant claim period, based on her evidence and her location in the inner East 2 area, and to include an element of compensation for any claim for special damages she might otherwise have been entitled to make. Adam Healy[550]Mr Adam Healy is a 38 year old man. He lived with his partner and three children at Walden Crescent in the outer East 3 area from 2011 to 2013 and then at Highfields in the East 4 area until 2018 when he moved to Bron y Waun. At Highfields in the East 4 area – and further away from Kronospan - he was close to Mark Edge (who did not give evidence – see below) and one of Kronospan’s witnesses, Brian Lewis.[551]His evidence was primarily relevant to Highfields. In his questionnaire he described experiencing a fine white MDF type dust on average every two or three days. He described having to have his windows cleaned every two weeks and washing down the outside sills every two to three days. He describes everything in the garden getting full of dust and needing to be cleaned every day in the summer. He describes having to come inside on numerous occasions due to dust. He also described being disturbed by loud noises every night and, even with the double glazed windows closed, hearing sirens going off around every ten minutes. He also described an “unpleasant damp wood smell” which bothered him and which he rated as 6 on a scale of 1 to 6. He had not kept any records or made any complaints. He identified costs incurred, including three bottles of bleach a week as well as two bottles of glass cleaner, fairy liquid and polish a week. His witness statements and schedule of loss followed this broad account.[552]Even at first reading this account seemed substantially exaggerated and that impression was fully confirmed by his oral evidence. Initially it had been said that he was too ill to attend court to give evidence, but when he did attend he referred in vague terms only to some emotional and child care problems. His general approach in cross-examination was to stand by his witness statement if asked but, when pressed, to say that he could not remember the details. A good example was when he said that he had first noticed the dust himself but, when taken to his witness statement where he said it had been pointed out to him by his window cleaner, to say that it was a long time ago but what was in his witness statement was right.[553]The impression I received from his evidence as a whole, and in particular his witness statement, explaining how he became involved with the claim, was that he saw a risk free way of securing a handsome payout, which explains why his initial evidence was so exaggerated but why he then rowed back from it save to take refuge in standing on his witness statement when pressed. It also explained why he claimed to have no idea when closely questioned how his special damages claim had been arrived at.[554]His evidence about having taken photographs in 2011 on an old phone which he had replaced might have been credible if stated from the outset but not when volunteered for the first time in cross-examination, and not when he said that he had not thought to take pictures from 2013 to 2017 of such things as dust getting into food and drink or a “thick layer of dust” on a paddling pool. He also said that he had no problems with his current address, despite that being closer to the Kronospan site than his address at Highfields, and when this was inconsistent with his second witness statement.[555]I would accept that he experienced a significant dust emission event due to dust emissions from Kronospan on average once every two to three months whilst at Walden Crescent in the outer East 2 area, whereas I would not have accepted that he experienced any significant dust emissions of any kind due to Kronospan on any frequency approaching every three months on average whilst at Longfields in the East 4 area. I also find that the noise and odour complained of does not reach the level of a legal nuisance, whether alone or even in concert with the dust emissions.[556]On the same basis I would have assessed his claim for general damages for nuisance at £400 p.a. whilst at Walden Crescent over the course of the relevant claim period, to include an element of compensation for any claim for special damages, but nothing whilst in the East 4 area. Nina Williams[557]Mrs Nina (also known as Rachel) Williams is 54 years old and has lived at Maes yr Ysgol with her husband Mr Robert Williams and their three children since August 2013 over the relevant period, in the same cul-de-sac as John Jones and thus in the inner East 3 area. She had also worked at the local primary school since 2010.[558]In their questionnaire she and her husband said that they noticed dust as a problem soon after moving in, on average two to three times per week, worse when the wind was blowing from Kronospan.[559]They said that they had to wipe the window sills and garden furniture around once weekly. They identified the dust as like sawdust but also occasionally fibrous. They said that on many occasions they were driven indoors by the smell and dust. In cross-examination Mrs Williams clarified that it would normally be the smell which drove them inside and they could just wipe off the dust from the garden furniture.[560]They said that dust would settle on the roof of their conservatory, especially after fallouts. They said that they would wash the car more often, sometimes in summer up to three times weekly. This is a surprising frequency. In cross-examination she explained that her husband’s job had required him to drive out to see clients, so it was important to him to have a clean car. They also gave an example of cleaning the car on 10.8.16 ready for a day out the next day only for dust to appear overnight.[561]They had made complaints to WCBC from April 2016 onwards after seeing details of how to do so on Facebook. They attached photographs from 2016 and 2017. They expressed their concern about the impact of breathing dust on their children. They would close their doors and windows when dust was present. They identified claims for window cleaning and car shampoo.[562]In cross-examination Mrs Williams accepted that there were other sources of dust in Chirk, such as pollen and street dust, but she said she could distinguish dust from Kronospan from pollen because it was fibrous. She was taken to a photograph taken of a car in Maes yr Ysgol in 2018, which she said looked to her like dust from Kronospan even though Kronospan had said that it was from pollen. It was submitted that this was an example of misattribution, which was relevant to her credibility. I do not myself regard this as damaging her credibility, especially as it was not her photograph, although I do accept that her willingness to speculate is indicative of a tendency to misattribution of everything to Kronospan.[563]She was also cross-examined about her evidence that dust accumulated on the polycarbonate conservatory roof. She said that the dust would stick to the roof after rain and gave the appearance of dirty marks in the grooves of the roof. She accepted that she could not say in terms that it was Kronospan dust, save that it looked like Kronospan dust as she explained before. They had said in the questionnaire that they had a photograph of the roof. This had not been disclosed. Although it did not seem to me that there was anything sinister in that, again I regard this as relevant to her reliability.[564]She was also cross-examined about a photograph of dust on a cloth which she said had been used to clean the table of dust. It was put to her that the colour was inconsistent with the light colour she attributed to Kronospan. It clearly was darker rather than lighter in colour. She then said that she could tell it was from Kronospan because there were fibres on the cloth. However, the photograph did not obviously show fibres and it seemed to me that this was pure speculation on her behalf. In the same way as above this seems to me to go to her reliability and willingness to attribute everything to Kronospan.[565]In the questionnaire they described the odour as an offensive acrid glue or chemical smell, occurring on a weekly basis. Mrs Williams later said that more recently this had become the biggest problem, in particular to her concerns about the health implications, which she described as really worrying, especially as regards her granddaughter who she was looking after at home from time to time. She said that it was the worry about health which would keep her inside now.[566]They described the noise as a constant low humming and a mixture of other noises, constant throughout the night. In cross-examination Mrs Williams said she could live with the noise.[567]It was submitted that their decision to spend a considerable amount of money in 2021 in overhauling the garden was inconsistent with her account as to the seriousness of the problem. I agree that this willingness to expend substantial amounts sets the true nature of the complaints in context.[568]As regards the claim for special damages, no claim for window-cleaning costs had been made so that the claim was limited to an additional eight bottles of car shampoo per year at a total of £24 p.a., which does not seem to me to be indicative of someone determined to inflate her losses. I am prepared to accept that there is really insufficient detail in terms of the additional number of car washes over the whole period and the additional cost to justify an award of special damages.[569]Overall, it seems to me that her evidence properly evaluated and stripped of exaggeration was broadly consistent with that of her neighbour Mr Jones. In short, I am prepared to accept her evidence that there were occasions, probably mostly due to unplanned emissions, especially the well-documented occasions of such incidents, as well as the limited occasions when dry conditions and high winds from the north-west caused log-yard emissions to reach their property, where their cars and garden furniture were affected by dust. I am also prepared to accept that there were similarly some occasions of noise and smells. However I am satisfied that they were nowhere near as frequent as they had said and that their evidence is unreliable insofar as they said that it was and such as to justify a conclusion that there was a legal nuisance.[570]On the same basis as Mr Jones I would therefore have assessed her damages at £600 p.a. based on an average of significant dust emissions every two months. Maureen Jones[571]Mrs Maureen Jones is 77 years old and has lived at 2 North View in the outer East 1 area for 46 years, her late husband living with her until his death in 2017. Her third witness statement explained her current medical conditions which, plainly, made her unable to attend court to give evidence. Some consideration had been given at the pre-trial review as to whether it was possible for witnesses who could not travel to Manchester to give evidence more locally, for example at a local solicitors’ office. However, in the end neither party suggested that this was practicable and, given the difficulties of arranging for the necessary parts of the trial bundle to be made available to and navigated by the witness, even with professional assistance, I can entirely understand why.[572]In their closing submissions Kronospan’s counsel submitted that I should attach limited weight to her evidence because of the lack of opportunity for them to test it by cross-examination. I accept that I cannot attach the same weight to her evidence in those circumstances, especially given that none of the other Claimants’ accounts as given in their witness statements emerged unscathed from the forensic process.[573]In her questionnaire made in January 2018 Mrs Jones had complained of regular (weekly, sometimes daily) dust deposits affecting her car, garden furniture and window sills. She said that she loved her garden, but did not say that she did not use it because of the dust, although in her first witness statement she did say that she would clean the furniture before using it. In her first witness statement made November 2018 she said that the dust had become worse in the 1990’s as the factory expanded. Apart from the regularity of the dust deposits, which I have no doubt is fundamentally exaggerated, none of the rest of this seems implausible. The same degree of exaggeration in my view applied to her evidence in her first witness statement that she regularly had a “face full of dust” from the car ventilation when she turned it on.[574]As at January 2018 she said that the dust had improved over the year or so since the silos had been installed. This is obviously a reference to the silos provided for the new RCF facility. Again, this appears broadly consistent with the chronology, although on the evidence the silos were not completed until mid-2018 and even then considerable quantities of RCF were still stored outside.[575]She said that her husband had made some complaints and received some car wash tokens. She said that she had spent £5 pcm on window cleaning, which formed the subject of her claim for special damages. It is open to the objection, common to most Claimants, that she had not attempted to identify the additional window cleaning costs over and above what she would have incurred even without a dust problem.[576]She also referred to noise, which did not trouble her very much. She also referred to a smell of formaldehyde, which her husband had identified to her, but which is not plausible on the evidence. I would not have accepted that this evidence would justify any claim for nuisance for odour or noise.[577]In written closing submissions Kronospan referred to the above and other inconsistencies. I agree that these reveal a degree of exaggeration, especially in her witness statements.[578]Overall, I am satisfied I can place some weight on her evidence, especially since she also acknowledged the benefits to her and her family of the work opportunities Kronospan had provided and was also prepared to acknowledge some improvements. However, I do not consider she was reliable as to the nature, frequency and severity of the dust emissions.[579]I refer to Paul Jones’ evidence immediately below but, for present purposes, I not consider that his evidence in any way undermines her account.[580]Based on her location I would have assessed damages for nuisance, had I needed to do so, based on her location in the outer East 1 area, with a significant dust emission event once every two to three months, at £400 p.a. Paul Jones[581]Paul Jones is Mrs Jones’ son-in-law and in March 2018 he had moved into her house with his wife, to help care for her, having previously lived at 28 West View since 1998, just across the road from the Co-op and very close to the Kronospan site boundary. He works as a hospital porter. In his witness statement he said that the dust and noise were “horrendous” at the former property and that he also experienced smells of formaldehyde and burning chipboard, but had decided not to join in with the claim for financial reasons. He accepted that 2 North View was less affected, although only “slightly”, save that the formaldehyde smell was not noticeable. He disagreed with his mother-in-law that there had been any recent improvement.[582]In cross-examination he accepted that the problems with dust only really affected his car and garden furniture and that the noise and smells were only occasional. He accepted that there were other sources of dust in Chirk, volunteering road dust as one such source, but said he could distinguish that from Kronospan dust due to its brown colour.[583]Although he had no direct financial axe to grind his evidence in my view was similarly exaggerated in the same way as the majority of the Claimants and their witnesses. His evidence as to the difference between the dust emissions at his West View house and the North View house is consistent with my findings as to the relatively significant fall-off between properties close to and further away from Kronospan and, thus, provides some modest support for Mrs Green’s evidence as to the significantly worse consequences of living very close to the site and Holyhead Road in that location. Margaret Randle[584]Ms Margaret Randle is a 40 year old who has lived at Ewart Street since 2012 with her partner and five children. She had completed a questionnaire and provided two witness statements. Ewart Street is in the mid-East 1 area, close to the other lead Claimants Ronald Davies and Gareth Heyward and also to the Kronospan witnesses Deryn Poppit and John Williams.[585]Her hearsay notice stated that Ms Randle’s explanation for not attending trial was a combination of mental health difficulties and serious ill-health of her children. In her witness statements she referred to the fact that she has five young sons and that they all have various health difficulties including in particular one who has severe ADHD. In her second (2022) witness statement she also refers in general terms to her own physical and mental health difficulties.[586]There is a short letter from her GP dated 19 May 2025, which referred to a consultation that day and confirmed that she has been under treatment for mood problems, that her situation is not yet stable, that she is “going through a lot of stress in her life in particular appearing as a witness” and that the GP does not feel she would be fit to do so.[587]That evidence would not be sufficient to obtain an adjournment of a trial; however I am satisfied that it does provide a sufficient basis for concluding that Ms Randle has understandable reasons for feeling anxious about travelling to Manchester for a day to give evidence in a formal court process. Nonetheless, it does not disclose sufficient reasons for a conclusion that it would not have been practicable for her to attend had she really been determined to do so, and I cannot confidently exclude the possibly that one reason she does not wish to do so is because she has exaggerated her case and does not wish to be cross-examined about it in court.[588]In her questionnaire from 2017 and in her witness statements from 2018 and 2022 she gave accounts which are substantially the same as Maureen Jones. In their closing submissions Kronospan’s counsel identified various reasons why they would have been able to cross-examine her on various matters going to her credibility and reliability. In my judgment, in a similar way to Maureen Jones there is no compelling reason to consider that her account is untrue but there are good reasons for thinking that it is substantially exaggerated in various respects. In particular there are indications that social media was a primary reason for her becoming involved and that health concerns are a motivating feature. Further, there is no history of complaints (apart from an unevidenced complaint at some unspecified time where a car wash voucher was obtained) and none of the photographs are compelling, apart from the photograph of the rear of a HGV delivering to Kronospan, which clearly shows wood dust and debris but which is not directly relevant to the claim as advanced.[589]In the circumstances my view is the same as that which would have applied in relation to Ronald Davies, had he given evidence at trial broadly consistent with his witness statement and the other lead Claimants, so that if I had concluded there had been a nuisance it would have been assessed at £600 p.a. based on a significant dust emission event every two months on average in her location in the mid-East 1 area but no nuisance in respect of odour or noise. Gareth Heyward[590]Mr Gareth Heyward is a 52 year old man who has lived at South View in the mid-East 1 area with his partner since September 2024, before which they lived outside Chirk.[591]There is a short letter from his GP dated 16 April 2025, which referred to an absence of recent reviews but a history of severe generalised anxiety disorder in stressful situations, so that the author thought it “conceivable” that a court appearance would trigger significant anxiety.[592]As with Ms Randle, that evidence would not have been sufficient to obtain an adjournment of a trial, and I am far from convinced that it is sufficient in itself to justify his not attending at trial, notwithstanding my sympathy for his condition and my acceptance that the prospect of attending an unfamiliar place to be cross-examined would be anxiety-inducing. I do not ignore the fact that there is also medical evidence that he attended a chest pain clinic last year, but there is no evidence that he has any diagnosis beyond atrial fibrillation and high blood pressure.[593]In his questionnaire he stated that he had worked at Kronospan for 20 years up until 1997 and recorded regular problems with dust since moving into the property, building up on external surfaces and furniture and his car. The reference to cleaning windows and sills “at least three times every week” is plainly exaggerated in my view, as is his reference to washing the car almost every other day, and his account that this was the precipitating factor for renting a garage is implausible. In his first witness statement he said that they had previously had to come inside and shower off the dust, which is a complaint which no-one else has made and again seems wholly implausible to me.[594]His evidence of experiencing a burning smell, especially at night, four to five times a week, and noise almost every night, both at a scale of 5 out of 5 in degree, is also wholly exaggerated. He was unable to produce any records such as photographs or complaints, saying that they didn’t know they could make complaints, which is surprising if things were as bad as stated, especially given his knowledge of Kronospan as an employee. The identified claim for twice weekly car washes and £10 a week for air fresheners and cleaning products also appears exaggerated, especially since in his first witness statement he said that they bought one extra bottle of polish a week. It is implausible that one bottle could cost £10 as, indeed, is recognised in the special damages claim where a much reduced claim at £1 per bottle is made.[595]In the circumstances, I am unable to place any real weight on the detail of this evidence.[596]I am not impressed by his claim for special damages and would not have allowed him any such damages.[597]My view in such circumstances as to any aware for nuisance in relation to dust emissions would be the same as with Mr Davies and Mrs Randle, i.e. £600 p.a. over the relevant period given his location in the mid-East 1 area and no award in relation to odour or noise. Nicki Evans[598]In their letter to the court dated 25.4.25 it was said by Hugh James that Mr Nicki Evans had confirmed that he would be unable to attend court due to ill-health, which they understood to be mental ill-health, and they had requested medical evidence. None was provided.[599]Mr Evans is a 51 year old man who has lived at Walden Crescent, close to Adam Healy, in the outer East 2 area since 2003. I regret to say that his evidence seems as exaggerated and unreliable as Mr Healy’s evidence. I note for example his evidence in his questionnaire that his garden furniture has “literally turned black as a result of the dust [from Kronospan]”, even though that is “yellow and not like normal household dust”, and that sometimes there is so much dust in the window trays that he struggles to shut the windows. He has produced what appear to be video recordings from a security camera at the front of his house which appears to me to show heavy driving snow but which he says are outbursts of dust from Kronospan – presumably the fall-outs described by other witnesses and which he says he has posted on Facebook. Whether or not that evidence is reliable would need to be tested in cross-examination. No similar evidence has been produced by anyone else and I am unable to accept it without hearing him cross-examined.[600]I am not impressed by his claim for special damages and would not have allowed him any such damages.[601]My view would have been the same as it is in relation to Adam Healy in relation to his time in this area, i.e. £400 p.a. based on a significant dust emission event once every two to three months on average whilst at Walden Crescent in the outer East 2 area. Mark Edge[602]Mr Mark Edge did not give evidence at trial. There is a GP letter dated 28.2.25 which confirms that he is being treated for depression and anxiety and blood abnormalities and investigated for memory issues and states that being a witness would “affect his performance and affect his treatment progress”.[603]As with Ms Heyward, that evidence would not be sufficient to obtain an adjournment of a trial and I am far from convinced that it is sufficient in itself to justify his not attending at trial, notwithstanding my sympathy for his conditions and my acceptance that the prospect of attending an unfamiliar place to be cross-examined would be anxiety-inducing.[604]He is 58 years old and lived at Highfields, close to where Adam Healy lived for most of the time, in the East 4 area over the whole of the relevant claim period. His evidence is exaggerated and unreliable in relation to the scale of the dust and its problems as well as in relation to noise, although in fairness to him he did say in his first witness statement that the dust had got better and he did not make any complaint in relation to odour. He also appears to have unsubstantiated concerns about the health effect of the production of melamine, describing this as possibly relevant to what he says is the number of people who are dying in Chirk. He only made one complaint in the relevant claim period to Kronospan and only produced two photographs.[605]His claim for special damages for car cleaning and window cleaning costs is unsubstantiated and does not seek to identify the additional costs attributable to dust. I am not impressed by his claim for special damages and would not have allowed him any such damages.[606]My view is the same as above in relation to Adam Healy in relation to this area, namely that the frequency of such significant dust emission events as there were does not justify passing even the threshold for considering a nuisance and nor do any complaints about odour or noise.[607]The final non-attending witness I need to refer to is Mr David Fox. He had provided witness statements but was not called on the basis that he had been in hospital in Halifax (close to where he lives) until 16.4.25 and then re-admitted on 22.4.25 in relation to problems with his heart, a stomach ulcer, internal bleeding and anaemia. There was a letter from the hospital concerned dated 24.4.25 which provided general support for this account and inability to attend trial, which although not as detailed as would be necessary to obtain an adjournment is sufficient to explain his non-attendance.[608]In his two witness statements he referred to visiting and sometime staying with unidentified relatives living in Maes Yr Ysgol on a regular basis from the late 2000’s onwards. He does not say whether these are Mr and Mrs Jones or Mr and Mrs Williams or someone else and, if so, whether they are Claimants or not. This alone was an extremely unsatisfactory feature of his evidence, given that there was no explanation as to why he could not simply identify them.[609]His evidence was that he had noticed dust in a similar manner to the lead Claimants and their witnesses and he had complained by email to Mr Baker of Kronospan in 2018 and to the Environment Agency, which he had attached to his first witness statement. He also attached photographs of dust on his car following a visit in 2011.[610]His evidence provided some modest support for the evidence of John Jones and Nina Williams, to which I have referred already, in relation to emissions from Kronospan insofar as they affect Maes Yr Ysgol, but otherwise adds nothing to the general picture. I. Kronospan’s factual evidence[611]Kronospan called the following witnesses of fact from Chirk residents, most of whom are current or former Kronospan employees: Andrea Twigg; Darren Hughes; Rachel Brigstock; Deryn Poppitt; Jamie Reynolds; Alistair Williams; Anthony Gray; Brian Lewis; Gareth Davies; John Williams; Steven Thomas; and Rachel Langford. They also tendered without objection a witness statement from Brenda Wilford.[612]Also called to give evidence were four other Kronospan personnel and two independent professionals who provided services to Kronospan, who were in[613]A point was made in cross-examination of one Kronospan employee that it was a curious feature of its witness selection process that none of the Kronospan employees called to give evidence worked in either the MDF or the log-yard areas. If there is an inference that this was a deliberate decision, because any such employees would have been bound to have admitted that they were aware of dust problems in that area, this seems wholly speculative to me. In particular, since the reason why the non-management witnesses were called was to describe their experience of dust, odour and noise emissions at their own residential properties, there is no basis for me to conclude that they were chosen on a selective basis to avoid being cross-examined on the experience of working in particular sections of the works. Andrea Twigg[614]Mrs Twigg has lived with her husband since the late 1990’s on Holyhead Road, approximately mid-way between the Kronospan site entrance to the south and the Co-op store to the north and very close to the Kronospan site boundary. She made her witness statement in 2018 and said that she could only recall two fallouts from Kronospan after which she noticed fine yellow dust but, otherwise, was not affected by dust or noise or smells from the factory, despite being keen on sitting outside and gardening and having her windows open.[615]When she was asked in cross-examination she accepted that maybe there had been more than two fallouts and she also said that they had a coal fire and a log burner, so that they were more used to dust than those who have neither. She was one of the rare witnesses who agreed on reflection that perhaps she and her husband were less sensitive to dust than others. She suggested that those who were complaining had been influenced by complaints on Facebook.[616]She has no connection herself with Kronospan but her sons both work there, the elder one for 21 years now. She insisted that her evidence was not influenced by her sons’ connection with Kronospan.[617]There is no basis for rejecting her evidence as knowingly untrue. Mrs Twigg was plainly an honest witness.[618]However, I consider that she, for whatever reasons, significantly underplayed the extent of the dust emissions in particular. Given the well-documented evidence from Kronospan itself as to the number of the unplanned emissions it is implausible that she had only experienced two such events over twenty years, as she had said in her witness statement, albeit modified to some extent in her oral evidence.[619]It also seems inconceivable in my view that she had experienced no noise or odours at all from Kronospan over the same period, especially when she did say that she had experienced a variety of other odours, such as the smell from Mondelez and from traffic.[620]The one most plausible objective reason for her not being as frequently affected as Mrs Green to the north is that her house is directly due east of the main factory area and, hence, less likely to be affected by log-yard emissions carried by the prevailing south-west winds to the north-east. However, that cannot explain the fact that there are numerous RHRs from complainants in the same area as her property, but further away from the site, including Sarah Williams, which on investigation were accepted as genuine and linked to dust emissions from Kronospan.[621]I am satisfied that there are three principal reasons for the discrepancy between her evidence and the core unexaggerated evidence of witnesses such as Susan Green and Sarah Williams:(a) first, her connection with Kronospan, to which she is no doubt well-disposed due to its being the employer of her two sons;(b) second, a lack of sensitivity on her part to dust, odour and noise emissions; and(c) an instinctive distaste for complaining, and for people who do complain, especially about Kronospan.[622]Nonetheless, her evidence provides support for my conclusion that even residents who live very close to Kronospan are not as frequently or seriously affected by significant quantities of dust, let alone odour or noise, as they have claimed. In short, it is a counter-weight to the exaggerated evidence of most of the lead Claimants and their witnesses. Darren Hughes[623]Darren Hughes has lived on Crogen at the entrance to Lodgevale Park and just opposite the top north-west corner of the Kronospan site since the late 1990’s. He owns a security company through which has worked for Kronospan as a contractor for many years and was generally supportive of Kronospan and its positive impact on Chirk. He also however said that one of his stepsons has a serious medical condition so that if he or his wife had any concerns about any health impact from Kronospan’s operations they would have moved away.[624]His evidence was that he had not experienced any issues with dust or wood chips at home, whereas occasionally he had experienced a light dust on his car when he parked at the Kronospan site. Under cross-examination he seemed to be keen to distance himself from being thought to say that even this was obviously from Kronospan, even though it was fairly obvious from his witness statement that this is what he was saying. He occasionally heard a low background noise at night from the Kronospan factory but not enough to bother him. In the same way he occasionally experienced a woody smell but again only rarely, whereas he was more bothered with the smell from the sewage plant directly to the north of the Kronospan site. He denied ever having seen a blue haze from Kronospan, which I found surprising given the well-documented records of such events over the years.[625]He had been asked by Mr McKenna to make a witness statement. His brother has worked for Kronospan for many years and, in the same way as with Mrs Twigg, I am satisfied that this was the reason he was approached to give evidence for Kronospan. I am also satisfied that there is no question of his being pressurised to make a witness statement to support Kronospan. However, in the same way as with Mrs Twigg, and subject to one qualification, I am satisfied that his evidence downplays the impact of Kronospan in the same way as the Claimants’ evidence exaggerates it.[626]As with Andrea Twigg, the one most plausible objective reason for his not being as frequently affected as Mrs Green to the south is that Lodgevale Park, lying to the north-east of the Kronospan site at some distance from the log-yard and pre-production areas, and shielded from them by the warehouse and flooring and worktop areas to the north-west side of the site, is not as affected by emissions from Kronospan as other more southerly areas. I am prepared to accept that this is a significant factor in relation to those areas further away from Kronospan, which is where the other Kronospan witnesses who gave evidence in relation to the North-East area live. Most of them live further away from the site than Mr Hughes. Again, there are numerous RHRs from complainants in the same area as his property, live. As I have said it is unhelpful that I have not heard from any of the Claimants who live in this area. However Mr Rodway, the Claimant who lives at Wern, in the south of this area and close to Kronospan, made numerous complaints which, on investigation, were frequently accepted as genuine and linked to dust emissions from Kronospan.[627]Given that he does not live very far from Mr Rodway I am in little doubt that Mr Hughes’ evidence minimises the impact of dust emissions from Kronospan in the same way as the Claimants’ evidence exaggerates it.[628]The factual evidence overall indicates that in this nearer part of the North East area there were significant dust emissions from Kronospan affecting properties, and – although this cannot be binding in the absence of a lead Claimant from the North-east area, I would be inclined to say that the frequency of such events would have been on average every two months, with frequencies in the mid-North-East area around every three months and frequencies below three months in the outer-North-East area. Rachel Brigstock[629]Rachel Brigstock has lived since the early 2000’s at the top of Lodgevale Park, some distance away from Kronospan, where she has worked as a credit controller for around the same time period. Her evidence was broadly similar to that of Darren Hughes. She said that employees living in Chirk had been asked if they were prepared to give a statement about whether they were affected by Kronospan’s operations and she was willing to do so.[630]In cross-examination she said that she had found light fibrous dust on her car in the Kronospan car park when there had been a blowout or other incident, which is different to the ordinary darker dust and dirt she would find at home. She could not say how often this happened. She said that her experience of dust in Chirk was no different to when she had previously lived in Wrexham. She agreed that she would not have come to court to criticise Kronospan but, in my view realistically, she said that if that was the case she would just have stayed away.[631]She came across as a perfectly reasonable witness and it would be difficult for me based on her evidence alone to conclude that she was consciously under-estimating the scale of the problem at least as she perceived it. It does provide support for a conclusion that the further North-East area did not, during the relevant claim period, suffer from significant dust emissions from Kronospan even as much as once every three months on average. Deryn Poppitt[632]Mr Poppitt has worked for Kronospan since 1987, where he has been union chairman since 2008. He has also lived at Charles Street in the mid-East 1 area since 1976 and was a town councillor from 2012 to 2017. His house is close to Kronospan, being only 155m from the site boundary.[633]In his witness statement made in 2018 he said that he also occasionally noticed light fibre dust on his car when he parked in the Kronospan car park but not when his car was parked at home or more generally at his home, save that “if there is a process incident I might get something and I remember that once about 9 years ago that a light coating of fibre fell at my house”, although even then it did not cause a problem. He was clear that dust did not cause a problem to his everyday home life or that of his young daughters and nor to his knowledge did it to his neighbours or their families.[634]In cross-examination he said that the dust on his car was more like a fine sawdust than a fibre and only when there was an issue on site. He admitted however that he would not necessarily know when there was a process incident.[635]In cross-examination he also said that the dust after the process incident had only happened that one time, which also seemed to indicate a desire to minimise the incidence of dust at his house. He then appeared to agree that it might have happened more than once and might have affected others differently living in different locations.[636]In his witness statement he also said that he had never noticed odour at home, although he had noted an odour at work in 2014 due to a blue haze. In cross-examination he described this as a wood processing smell rather than a haze, and did not agree that it had a chemical smell and, again, appeared to me to be seeking to minimise the problem.[637]He accepted in cross-examination that he was well disposed to Kronospan, given it had been his only employer and had sponsored books on local history he had written.[638]From all of the above I conclude that in his witness statement he was, consciously or otherwise, minimising his experience of dust and other emissions from Kronospan and that in his cross-examination he was seeking to minimise further still.[639]In cross-examination he said that he had become aware of the claim through social media and from receiving the standard letter from Hugh James (which he had taken to Kronospan to show it) and had volunteered to give evidence. It is obvious from this that he not only disagreed with the claim but was also sufficiently concerned, probably due to his position as union chairman, about the potential impact of the claim on Kronospan to want to be involved in contesting it. Indeed in cross-examination he described a number of claimants as making outrageous claims against Kronospan which they saw as a “cash cow”.[640]However, as against this it was noteworthy that he did complain when Kronospan related matters did affect the locality. Thus, he said in his witness statement that he noticed woodchip debris on the roads near Kronospan and when he did he complained to Kronospan about it. He also said that he had noted noise issues at night due to skips being emptied or reversing vehicle alarms – and once a squeaking conveyor - and had complained about them around four times over the last three to four years.[641]Overall, I am satisfied that he was a genuine witness but one who, for the reasons stated above, betrayed that he was minimising his experience of dust, odour and noise at his property and more generally in the same way as many of the Claimants were exaggerating it. Jamie Reynolds[642]At the time he made his witness statement in 2018 Mr Reynolds had lived with his wife and children at Linden Avenue in the Lodgevale Park North East area, close to Ms Brigstock, for eight years. He had worked for Kronospan since 2016-17 and still does.[643]His witness statement made clear that he experienced no dust, odour and noise emissions attributable to Kronospan at his property.[644]He maintained this account in cross-examination and although he was, like the other Kronospan employees, obviously supportive of Kronospan – because otherwise he would not have volunteered to give evidence – there was no obvious reason to disbelieve his account.[645]This fortifies the clear impression that the further North-East area is not troubled by dust, odour and noise emissions from Kronospan. Alistair Williams[646]Alistair Williams has lived with his wife and children at John Street since 2014 in the mid-East 1 area and before that at Longfield. He has worked for Kronospan from 2010.[647]He states that he has never experienced any dust from Kronospan in either house or, indeed, in any of the other houses he has lived in from birth in Chirk. As with other Kronospan employee witnesses he says that the only time he has seen dust which came from Kronospan was on his car on having parked it in the work car park. He says that he has never experienced any odour from Kronospan or any noise of any significance.[648]As at 2018 he was a weighbridge operator who recorded complaints out of hours and said that at weekends most complaints were about dust and at night about noise.[649]He was the first to volunteer that he had been approached by the Kronospan HR manager to speak to Mr Baker about his experience of living in Chirk, which confirms what was probably always obvious, which is that Kronospan had decided to locate suitable witnesses amongst their Chirk resident employees to speak to the lack of problems due to dust, odour and noise emissions in their defence to this case.[650]He plainly had a positive view of his employer and of Chirk and it seemed to me that he believed fairly strongly that those who criticised it were completely wrong. He was particularly critical of Sarah Williams, in the context that she had complained about dust emissions from Kronospan in 2017 which had resulted in a youth football game being cancelled, perhaps because he is secretary of the youth football club, even though he did not suggest that this incident had not happened.[651]It therefore seems to me that again he has a motive to minimise the extent of any perceived problem from dust, odour and noise emissions from Kronospan and I should treat his evidence on that basis. Anthony Gray[652]Anthony Gray has lived at John Street in the further East 1 area for 28 years, close to Maureen Jones and Donna Thomas. His evidence was that it was only on rare occasions that he recognised light fibrous dust which “possibly may come from Kronospan”, but that it did not trouble him any more than other dust. His wife, who is a cleaner at houses in other parts of Chirk, had told him that their house was no more dusty than other houses. He was aware of a low level background hum from Kronospan which is not a problem, but not of any odour from Kronospan.[653]He came across to me as somewhat dogmatic in his evidence in cross-examination and not particularly willing to accept any suggestions which diverged from his own position. That may be because he had worked for Kronospan for almost 41 years. Given that he worked on the particleboard line, where dust suppression was important, he seemed curiously unwilling to accept that there was an obvious difference between dust generated at Kronospan and general household dust.[654]It was suggested to him that he might be more tolerant of dust because his house had previously been heated by coal fire and because of his working environment, but again he seemed unwilling to engage with this question.[655]He also seemed to suggest that areas to the south-east of the factory might be affected by blowouts, whereas his east side would not but he was unable to explain why this should be so.[656]One of his roles was to check the factory for any unplanned emissions in the event of complaints from residents and, on one occasion, he had actually inspected a Claimant’s property and had noted on the RHR that dust/fibre was covering the drive and had arranged for it to be swept as best as it could. Although he suggested that even on that occasion he could not have said that the dust had come from Kronospan, given that the address in question was very close to the Kronospan site, and given that he arranged for the drive to be swept by Kronospan, it seems implausible to me that did not believe it probable that it was from Kronospan, even though I accept that the form does not record any specific cause.[657]In re-examination Mr Kent skilfully drew his attention to the fact that the address is just off the Holyhead Road, so that it was possible that this dust had come from HGVs delivering to the site. Although Mr Gray gratefully accepted that suggestion, that is not what he recorded as having concluded at the time, so that I do not consider that it was the probable cause. Brian Lewis[658]Brian Lewis lives at Lloyds Lane in the East 4 area which is further away from the Kronospan site that the adjacent East 3 area and where both lead Claimants Adam Healy (who was unimpressive) and Mark Edge (who did not attend) lived. His evidence was similar to the other Kronospan employees in referring to experiencing occasional dust when his car was parked at the car park but not otherwise and not at his property save for the occasional blowout. He had noted the blue haze from Kronospan with a woody smell which he did find unpleasant and occasional night time noise which did not cause him any problem.[659]His recollection of details was, perhaps not surprisingly, not particularly clear, but otherwise he seemed a perfectly reasonable witness, and his account tends to indicate that the East 4 area is not significantly affected by Kronospan dust, odour and noise emissions due to its distance and direction from the site. Gareth Davies[660]Gareth Davies has lived in Lodgevale Park since 2010 with his family and has worked as an electrical engineer at Kronospan for many years. His evidence was to similar effect as the other Kronospan employees and witnesses from the outer North-East area.[661]He came across as a reliable witness and reasonably fair minded. For example he did volunteer in his witness statement that due to the reduction in outdoor materials storage of chipping (by which he clarified in cross-examination he meant RCF) “dust around the factory is gradually decreasing”. John Williams[662]John (also referred to by his middle name Patrick) Williams has lived at George Street, in the mid-East 1 area, close to Ronald Davies and Margaret Randle, with his family since the mid 2000’s and worked at Kronospan since the late 90’s.[663]In his witness statement he said that he noticed dust from Kronospan on the windows and frames of his house which face the factory around twice a year. He would also notice an occasional small build-up of dust on his car. He was aware of occasional blowouts from Kronospan but could only remember two in particular.[664]In cross-examination he said that he experienced the fine dust from Kronospan but not the thin fibres which he associated with MDF.[665]He heard occasional noise which was not a problem and no odour problem.[666]He gave evidence in a straightforward manner and appeared reliable. His address is not very far to the west of Susan Green’s house and, in the same way as with Mr Poppitt, it is difficult to see how his evidence can sensibly live with her evidence without either one being wrong or both being exaggerated and minimised respectively. His evidence was also inconsistent with the evidence of the investigations recorded on the RHRs from that area. There was less evidence of minimisation in his case as there was with Mr Poppitt. However, I reach the same conclusion that there was significant minimisation in the same way as there was significant exaggeration in the evidence of his Claimant neighbours, including Mrs Green. Steven Thomas[667]Steven Thomas has lived with his wife at Plas-y-Waun in the East 3 area, not very far from Mr Jones and Mrs Nina Williams at Maes yr Isgol, since 2012, and has worked at Kronospan for over 35 years in the particleboard press section. As with other witnesses he identifies the fine dust with the particleboard line and the fibres with the MDF line.[668]He acknowledges that in high winds he sometimes sees dust on the Kronospan front yard and on the cars in the car park, but not otherwise. He says that he experiences no problems with dust at his property save once every few months “a few specks of light dust on the chairs outside” and “a light covering of light dust” on his car.[669]He acknowledged some blowouts but recalls only one in September 2017 which created some dust which was soon blown or washed away. He accepted that where he worked he would not necessarily be aware of all such incidents. He was taken to one EIRF in particular from 5.6.16 which refers to dust being emitted from the PAL refiner building and blowing all over the factory and surrounding area. Given the number of recorded blowouts it is surprising and in my judgment frankly implausible that he could only recall one.[670]It was suggested to him, as with many other of the Kronospan employees, that he was more tolerant of dust than others. Like most of the others, he accepted that there would probably be a range of sensitivities but did not regard himself as particularly insensitive to dust.[671]He had no problem with odour and said from working with it inside the factory, when fumes come off the press which are extracted out, that there is no smell of formaldehyde outside the factory. He says that he has never smelled an acrid wood burning smell.[672]He had no problem with noise, although he had previously heard some noise at his previous addresses which were further away and to the south of the Kronospan site.[673]In the same way as with Susan Green, Deryn Poppitt and Alistair Williams in the East 1 area, I have the same difficulty that Mr Thomas’ evidence was very different from that of his relatively close neighbours Mr Jones and Mrs Williams in East 3 area. There is no question here of Mr Thomas being significantly further away from Kronospan than the two lead Claimants, although his property is slightly more due east than theirs, but again not by very much. It follows that the only realistic explanation for the substantial difference between their accounts is exaggeration by the lead Claimants and minimisation by Mr Thomas. Rachel Langford[674]Rachel Langford has lived with her parents on Offa in Lodgevale Park since the mid-2000’s. She was a Kronospan employee at the time she made her witness statement in 2018, as was her father, but she left Kronospan in 2019 but was still willing to attend court and give evidence. Her evidence was similar to the other Lodgevale Kronospan witnesses and there was nothing of note in her witness statement or which emerged in cross-examination to cast doubt on the evidence already referred to in that respect. Brenda Wilford[675]Mrs Wilford did not give evidence due to the very recent death of her husband and, in the circumstances, her witness statement was admitted as a hearsay statement without objection.[676]As the senior church steward until August 2018 of the Chirk Methodist Chapel located opposite the entrance to the Kronospan site she gave evidence as to what she said was the lack of any problem with dust or odour or any serious problem from noise from Kronospan over the relevant period, in circumstances where she would spend around 2 hours a day there on average. She gave the same evidence as to her experience in her own home, in the same area as Mr Healy, Mr Edge and Mr Lewis.[677]Kronospan is entitled to place reliance on this evidence, especially as neither she nor her late husband have ever worked for Kronospan.[678]However, unlike most of the other witnesses who are Chirk residents and who gave evidence for Kronospan, she is unusual in that she said that she never observed or had been made aware of any dust problem or odour problem at any time, other than the cocoa smell, from Mondelez. Whilst this is, as I have explained, plausible in relation to her experience as a resident of the East 4 area, it seems to me to be implausible if, as she said, she had spent as much time in and around the Methodist Chapel as she said. That evidence is inconsistent with the widespread evidence of at least some dust which is different from normal dust and is attributable to Kronospan and at least some occasional odours. In particular, the absence of any knowledge of the occasional blowouts is surprising. Given that the Claimants’ counsel have been unable to test these apparent inconsistencies in cross-examination I am unable to place any great reliance on this evidence.[679]I also note that in his witness statement Mr McKenna disclosed that Kronospan had donated 10% of the cost of the roof renewal of the Chapel, which enabled it to obtain a grant for the remainder. Mrs Wilford had not disclosed this in her witness statement. Whilst I am not suggesting that this might indicate that she had deliberately given untrue evidence as a thank-you to Kronospan, it is nonetheless something which might explain why she was so supportive of the company and willing to give evidence in its defence. Michael McKenna[680]Michael McKenna had joined Kronospan in 1989 as HR director. In January 2011 he became chairman of the board of directors of Kronospan UK, with overall executive responsibility for the Chirk site, where he remained until he retired on ill-health grounds aged 70 three years ago.[681]He had also lived in Chirk from early 2000 throughout the relevant claim period and beyond and was perfectly willing and able himself to complain if he saw dust which had an actual or possible off site impact (see for example the EIRF of 15.3.16 to which he was referred in cross-examination).[682]It became apparent at times during his evidence that he struggled at times to follow the questions and to give completely coherent answers. At the time I wondered whether this might be due to some medical condition. However, he did not volunteer any explanation about this (even though he was asked in examination-in-chief which illnesses had led to his retirement) and there was no medical evidence to this effect. In examination-in-chief Mr Baker was asked by Mr Kent to compare Mr McKenna’s demeanour in the witness box with his previous experience of him and volunteered that he looked like a man with the onset of dementia. He gave no further reasons for this opinion based on any particular close conversations or other close contact he had had over the recent past with Mr McKenna or anyone else. He may or may not be right, but – stating the obvious – he is not medically qualified to make this diagnosis and he does not appear to have any other persuasive evidential basis for doing so.[683]In closing submissions Mr Kent suggested that I should not place any evidence on Mr McKenna’s evidence, insofar as he made admissions against Kronospan. That was particularly a reference to his volunteering, when asked about the reason for the delay in completion of the RCF reception facility, that it was “priorities” and explaining, when asked, that he meant Kronospan’s priorities for investment, and that increasing productivity took priority over environmental improvements.[684]In response Mr Hart submitted that there was no basis for concluding that in these passages of evidence he was confused. Having reviewed the transcript of his evidence I accept that Mr McKenna was not obviously confused in giving particular answers to particular questions of importance. One telling example was when he was asked about emissions from Mondelez and, expecting him to refer to the smell from roasting cocoa beans, in fact he referred to elderberries. This initially seemed to indicate some mental confusion to me, until it became apparent that he was almost certainly referring to elderberries being carried by birds from the Mondelez site to his property, which was something he had referred to in paragraph 19 of his witness statement.[685]In any event, the admission about which Mr Kent was concerned appeared to me to be entirely consistent with the way in which Kronospan had approached the projects which were all underway at this stage, which was to prioritise the completion of the biomass project over the RCF reception project. In fairness to Kronospan, the biomass project did also have an beneficial environmental impact, so that the decision was not quite so binary as was put to Mr McKenna.[686]He had always lived in the South area of Chirk, albeit further to the west of Castle Walks where all three lead Claimants in that area lived, so that there is some reason why his experience in relation to dust, odour and noise from Kronospan from 2005 onwards might be a little different from theirs. However, that cannot explain the radical difference and I can only conclude that his evidence in this respect involved a degree of minimisation in the same way as theirs involved exaggeration. Also, whilst he said in his witness statement that he could be objective, his strong belief that it is Hugh James which is responsible for this litigation, rather than simply having enabled it, seems to me to indicate to the contrary. Dr Bernard Acton[687]Dr Acton is a specialist in environmental protection, with a PhD in air quality and an advisory role for the wood panel industry and a role in the preparation of BREF. He was called as a witness of fact in relation to his provision of consultancy services in the environmental protection field, specifically emissions testing, to Kronospan since 1990 through the Alderley Consulting Group (“Alderley”).[688]He has tested for formaldehyde, TVOCs and total particulate matter (“TPM”) and confirms that Kronospan “virtually always pass and most often come well within the limit values”.[689]He did however make clear when asked that this only related to normal process emissions referred to and did not apply to unplanned emissions or to exposed source emissions because these were not susceptible to the formal testing which he undertook.[690]In relation to the 2014 plume grounding referred to in the overview section above he said that the odour cannot have come from formaldehyde, given that the quantities of formaldehyde released are well below those required for it to be smelled and also that formaldehyde at those levels would irritate the eyes before being capable of being smelled. I accept this evidence as coming from someone with expertise in the area who was not challenged – and nor was there any obvious basis for any such challenge.[691]As he explains in his witness statement, he was also instructed to undertake the dust monitoring exercise for Kronospan from 2017 onwards, using the Dustdisc dust monitoring equipment referred to in more detail in my review of the dust monitoring experts below at seven specified locations.[692]He also arranged for microscopy tests to be carried out in early 2018 on four dust samples collected from four specific areas:(a) the Co-op store on Holyhead Road;(b) Crogen near the junction with Holyhead Road,(c) Charles Street (in the East 1 area close to Mr Poppitt’s house); and(d) the Kronospan site entrance. These were the four sites where some of the Dustdisc deposition samples had been found on testing to exceed the 200 mg/m2/day level (addressed in more detail below) so that it was thought important by those advising Kronospan to see whether the source of those depositions could be identified as Kronospan or otherwise.[693]Under cross-examination he agreed that these samples were all taken over the period August to November 2017 (i.e. the start of the sampling period) and that they were found to contain between 15% to 30% of organic matter (such as wood). He said that this was regarded as normal for an urban area. Nonetheless, in relation to Charles Street, for example, there was found to be 30% organic fibres. Apart from the further 20% brown organic material, which could possibly (but is unlikely to) have come from Kronospan, the remaining 50% could not have come from the Kronospan site. This is an indication that over these periods dust from Kronospan was not the major source of dust emissions in these areas.[694]He was also asked about testing of a further sample undertaken in October 2022 which was from material collected from his property by Mr John Jones (one of the lead Claimants from Maes Yr Ysgol). On testing, organic material was found to be the primary component in the form of various wood and plant fibres and particles. I have already referred to this in my review of Mr Jones’ evidence above. Dean Kettlewell[695]Dean Kettlewell provided a witness statement which dealt with the noise assessments he had undertaken at Kronospan from 2011 to 2018 in relation to planning applications made by Kronospan, including the results of baseline noise surveys which revealed no more than a low level general hum from the industrial estate as a whole. He had not been involved in relation to the remedial noise attenuation works which were undertaken to comply with the 2014 permit and he was not cross-examined. However, his evidence is relevant because his noise assessments are contemporaneous records of the noise levels experienced in Chirk as a result of Kronospan’s activities over the relevant claim period.[696]There is no suggestion, nor can there be, that these provide evidence of nuisance levels of noise from Kronospan over this period. His conclusions were that the position in 2016 was an improvement over the position in 2011, although at both dates noise inside bedrooms was at reasonable levels even with the windows open. His further conclusion was that:(a) at daytime road traffic was the dominant source of noise;(b) at night-time noise from Kronospan was a “low level hum with occasional low-level audible noise from distant reverse alarms”.[697]It would have been relatively easy for the Claimants to have obtained such evidence from a suitably qualified noise expert who could have commented upon these contemporaneous noise assessments. He confirmed that he was unaware of WCBC raising any issues with his noise assessments and no planning or permit applications were refused on noise grounds. Matthias Kaindl[698]Matthias Kaindl is a director and chief operating officer of Kronospan’s holding company and also the third generation representative of his family to hold a senior role in the international Kronospan business.[699]The evidence in his witness statement was of a high-level nature, not surprisingly as although he visits Kronospan’s Chirk factory two or three times a year he also has overall responsibility for more than 40 other Kronospan sites worldwide.[700]He was asked about the delay in implementing the new RCF reception facility. His high level answer was that instead of proceeding with the smaller improvement required by WCBC Kronospan had decided to design and install a totally new RCF tower and material reception facility which took more time to design and obtain planning permission than would the smaller improvement. Under cross-examination he accepted that he had not been responsible for the detail of the project or of the dealings with WCBC. Chelsey Burgess[701]Chelsey Burgess was Chelsey Barker before her marriage, which I mention only because that is the name seen on all of the contemporaneous documents, hence I have referred to her as such where that name is used.[702]She was employed by Kronospan as an environmental health and safety officer since 2014, reporting to Mr Baker, although since his retirement she has now taken over his role.[703]One of her responsibilities was to visit 8 selected locations in Chirk on a regular basis (at least four times weekly) over almost 9 months from March 2018 (and later continuing subsequently through to 2022) to take photographs to identify the presence or absence of wood dust, typically on dust bins in fixed locations. Her evidence is that she had only noticed such dust on one occasion in three locations.[704]In cross-examination she was asked, by reference to dates when there were a significant number of dust complaints which were investigated and recorded as justified, why no dust was found on the photographs taken on those dates. She accepted that it could be the case that dust was seen on cars which was not seen on bins. This obviously makes sense, given that cars tend to be shinier than dustbins and, hence, any dust on them is more visible.[705]Nonetheless, although the Claimants’ counsel have also observed that taking a photograph to prove a negative is not particularly probative of anything much, I think that it is fair to say that this pictorial history does indicate the absence of a regular and significant problem with dust deposition from Kronospan settling in different Chirk residential locations. It is plainly inconsistent with the Claimants’ evidence of regular daily or weekly deposits, especially where Claimants have described the dust deposits as being very frequent and/or being comprised of large fibres.[706]It is also an evidential counter-weight to Ms Wilson’s observation that an intrinsic weakness of the Dustdisc sampling is that it only shows an average over fourteen days and is not, therefore, well suited to pick up individual high daily dust deposits unless they continue over a sufficient period to be picked up on the fortnightly average. If there were regular substantial deposits on a daily basis, but not every day, then at least some of these would have been picked up by this sampling process, and there is no reason to think that it has been or could have been suppressed by Kronospan.[707]She was asked about the process for recording and responding to complaints using the RHR procedure. The stated purpose was to “ensure that all complaints are recorded and investigated in a robust manner so that the cause of the complaint can be identified and if possible allow corrective action to be taken. It is the policy of Kronospan to investigate all complaints resulting from our operations and to report back to the complainant at the earliest opportunity”.[708]The SHE Manager (Mr Baker over the relevant claim period) “has responsibility for front line initial response to any resident complaint and to ensure that any emissions from the site that are having an impact on our neighbours are stopped as soon as possible and that corrective action is put in place to prevent recurrence”.[709]The procedure required Mr Baker to visit the complainant and gather evidence and investigate to “establish if there was any aspect of plant operations, which could account for the problem encountered by the complainant” so that “actions will be put in place following investigation to prevent recurrence of any incident that gave rise to the complaint”, whereas “the complaint will be registered as "unjustified" if the cause of the complaint was found to be from a source other than Kronospan operations”.[710]Whilst it would be wrong to regard this as the equivalent of an environmental reporting and action obligation enshrined in statute, regulation or permit condition, equally it is fairly plain that investigating and completing the RHR involved making a decision whether or not the complaint appeared either:(a) justified and linked to a Kronospan plant operation, in which case actions to prevent recurrence should be put in place; or(b) not due to Kronospan operations, in which case it should be marked as unjustified.[711]She was taken to an example from 9.5.14, where she had investigated and concluded that:(i) the fact that the materials on the cars was dirty indicated that there were no process problems;(ii) the dry, windy conditions were the most likely cause of the materials found and that the water bowser had not been operated that afternoon;(iii) the preventive action was to ensure the usual dust minimisation measures were in place, including the water bowser operating in dry conditions. In cross-examination she accepted that although she did not necessarily think that all the material was from Kronospan, the RHR clearly conveyed that she had identified a link between the dust on the car and dust being blown from Kronospan.[712]She was taken to another example from 10.4.14, where she had found a layer of very fine, dirty wood dust on a car and, having investigated, had found that Kronospan had not been “wetting the roads”. She accepted that this was a reference to wetting the site roads, not to wetting Holyhead Road, and she accepted that this was her best assessment in terms of a link between cause and effect. Although in cross-examination she said that she could not positively discount dust from Holyhead Road, it is clear that this was not her attribution at the time.[713]She was also taken to other RHRs, from which it was apparent that her general approach was that where she could see light fibrous material her initial thought was that it was probably from a process issue whereas, if it was darker fibrous material and the weather conditions and investigations supported this, her conclusion was that it was probably from the log-yard. Others showed that a process issue had led to dust settling on roofs on site and then being blown off site, because the roofs had not been cleaned following the process issue.[714]What emerges in my view from this cross-examination is that although there were clearly procedures in place to ensure that log-yard emissions, or at least escape of such emissions off-site, were prevented or at least minimised, the steps which the environmental department would also want to see taken were not always taken by operatives who were no doubt always busy and more focussed on hitting production targets. I also accept that the same was true to some extent as regards unplanned emissions.[715]What also emerged from her evidence was that, as a result of gaining experience in investigating these complaints, she became adept at distinguishing between Kronospan dust emissions and non-Kronospan dust emissions, even if this was only her best assessment rather than being completely definitive. As she accepted, this is why she was able to reject one complaint of dust on a car on the basis that, although the photograph appeared to the untutored eye to show Kronospan dust, in fact it showed dust from catkins which had fallen from an adjacent tree.[716]As she also confirmed, Kronospan maintained a log of all such RHRs which were populated by Mr Baker and then by her as summarising the individual RHRs, including the nature of the complaint where justified or marked “unjustified” as appropriate, which included the opportunity to add comments in the last column.[717]She was also asked about odour from low plumes from Kronospan. Her evidence was that it was predominantly a wet woody smell but that there was also what she described as a sweeter smell, rather than a chemical smell. She did accept however that she understood that this was not the same smell as that emanating from Mondelez and that it was – at least as she understood it – the odour from the CVOCs previously referred to. Keith Baker[718]Mr Baker was perhaps the most important of Kronospan’s factual witnesses, given his role as environmental health and safety manager at the Chirk factory from 2005 until his retirement in September 2023 on ill-health grounds Although he has continued to be retained by Kronospan as a consultant to provide services in relation to this litigation. .[719]Much of his evidence in his three witness statements was a factual account of Kronospan’s factory and processes, which was not seriously disputed. His most substantial witness statement was his second and where I refer to his witness statement I refer to this one save where I state to the contrary.[720]My major concern about the reliability of his evidence was his attempt to rewrite history in his witness statement in relation to the RHRs completed by him and others. He appeared to suggest in paragraph 95 that “on most occasions”, even where they had “no clue” as to the source of dust on cars, “in order to preserve goodwill” car wash tokens would still be handed out “with a record on the form of windblown dust being made”. He returned to this point in his third witness statement where he said that: “I sometimes draw assumptions on wind direction/weather conditions concerning the potential source of fugitive dust but this is pure guesswork on my part and I really have no way of assessing on these occasions whether Kronospan is making any contribution to the background dust and dirt experienced by the serial complainants who are claimants in this case”.[721]The precise meaning of or intention behind making this statement was not entirely clear to me. He appeared to be suggesting that even where he had no idea whether or not dust on cars came from Kronospan he would nonetheless enter “windblown dust” to justify issuing a car wash voucher but without actually knowing whether or not the windblown dust had come from Kronospan.[722]I can quite understand a Kronospan policy of giving out car wash tokens for goodwill purposes, even where the link between Kronospan and the dust complaint was not established to Mr Baker’s full satisfaction, or where he saw dust which looked like it came from Kronospan but also saw substantial quantities of other general dirt or dust as well.[723]However, in his examination-in-chief he was taken to a RHR which he had completed on a visit to Mr Bell on 4.4.17 at Castle Walks after a complaint on 2.4.17. This recorded that on inspection the car did have an even covering of wood fibres but also general dirt and dust. It also recorded that Mr Baker suspected that “the wood fibre fallout was windblown and not as a result of a specific incident”. He then recorded that no specific incident had been recorded over the last few days but also identified dust suppression measures as the preventive action. That seems to me to be a very different situation to that suggested in his witness statement, because Mr Baker was perfectly well able to identify from his own experience that there was evidence of windblown wood fibre type dust from Kronospan, even if it was not as a result of a specific process incident. In such a case it is perfectly reasonable to proceed on the basis that he was accepting that this wood fibre type dust from Kronospan was a substantial contributory cause to the other general dust and dirt found on Mr Bell’s car.[724]In seeking to explain this RHR in examination-in-chief he did not actually address the particular visit or entry in question or explain why he had written what he did. Instead, he gave evidence that if on such a visit he found fibres which may be from Kronospan as well as other material then he would “give them car wash tokens and be a good neighbour”.[725]In my judgment it is clear that in the very many RHRs with similar records of windblown dust identified as probably coming from Kronospan, this recorded his (or the other investigator’s) genuine view at the time. There would have been no point at all in recording, for example, dust suppression measures as the preventive action in such a case if the probable linkage had not been made. It has not been suggested, for example, that a positive attribution of the dust to Kronospan was required to justify the issuing of these car wash vouchers to internal or external auditors. Mr Baker and Mrs Burgess are intelligent enough to know that including a statement of linkage in an internal record, which might be relevant in subsequent investigations or legal proceedings, should not have been made if that was not their opinion at the time.[726]To attempt to suggest in his evidence to the court that the clear linkage of the dust found on residents’ cars and garden furniture with Kronospan was pure guesswork by him, because in fact he had no clue and he only did so for goodwill purposes, in my view lacks any credibility. This part of his witness statement, and indeed his explanation in examination-in-chief, seemed to me to be a fairly blatant attempt to get around the fundamental problem that many of these RHRs did indeed acknowledge that the windblown dust had come from Kronospan. He was taken to others in his cross-examination, but I do not need to refer to each and every one of them. I am afraid to say that when he was asked about each there was a fairly consistent pattern of attempting to minimise or obfuscate what was plainly conveyed by each of the contemporaneous RHRs and – in one case - EIRFs[727]He did accept in examination-in-chief that process incidents would result in identifiable wood fibre dust landing on residents’ vehicles, but then seemed to suggest that otherwise all that he saw was “black/grey dust/dirt … from normal use”. However, again it is apparent that a great many of the RHRs do not suggest that the windblown dust only related to Kronospan process incidents, as opposed to log-yard emissions, so that the latter could not be linked with Kronospan.[728]He also suggested in cross-examination that he could not be confident about cause and effect in many such cases because, even if there was evidence of a problem and dust on site, that would not mean that that dust had the “potential to get off site” and, if there was a significant issue, there would be other complaints in the same area. I am prepared to accept that evidence of a dust problem on site does not necessarily mean that there will be a dust problem off site as a result. However, if dust is complained about, and on investigation dust is seen to be present at the residential location and also to have the appearance of Kronospan dust, then if investigation on site reveals a dust problem on site it does not seem to me that Mr Baker or anyone else should – or, indeed in reality did – have any real problem in making the linkage.[729]I have already referred above, in the subsection referring to the site and the different processes, to the fact that there was more scope for log-yard emissions before the 2018 improvements were completed. I have also referred above, in relation to Mrs Burgess’ evidence, that the system was only as good as the operatives were ready, willing and able to implement it on a consistent basis. WCBC’s letter of 4.10.11 and Mr Baker’s response to it is also good evidence that the system was not always implemented in a number of respects. The RHRs provide plentiful evidence of investigations identifying that the system was not always working as intended.[730]Mr Baker also suggested in cross-examination that he was able to identify Kronospan dust where it had been processed, because it tended to be a lot lighter in colour, whereas RCF dust which had not been processed, or dust from roadways, tended to be darker or dirtier and, he said, could not necessarily be distinguished from dust from Holyhead Road.[731]I am prepared to accept that there would be some element of uncertainty in some cases about the extent to whether dust found on residents’ cars was from Kronospan. However, in my view Mr Baker in his evidence on this point was seeking to exaggerate this difficulty for the purposes of this litigation. In reality, as the RHRs show, it was usually reasonably easy for him or the other investigators to look at the colour and composition of the dust on the car, to look at the surrounding area, to note the prevailing wind direction and wind speed, to note whether the weather was dry or wet, to investigate what was happening at site, and to consider whether this was part of a pattern of complaints or a one-off, in order to make a reasonably confident assessment as to whether or not a linkage had been made out.[732]In cross-examination he was taken to a photograph which showed a stockpile of RCF and, whilst it is clear that it is a light to medium brown colour, as opposed to a yellow to light brown colour, it is still obviously different in colour to dark dust. The following photograph showed a number of stockpiles of RCF, sawdust and boiler fuel, from which it can be seen that they are all different shades of brown, but none are obviously a very dark brown. Some of these photographs, which were taken by an unauthorised drone, show significant quantities of dust on top of silos and other surfaces, from which they could easily become wind-entrained in windy conditions.[733]Mr Baker was asked in examination-in-chief and again in cross-examination about the delay in completing the RCF reception facility beyond the July 2015 required by permit condition 13 in 2014. He explained in examination-in-chief that the delay was due to unforeseen ground conditions in the underground cellar which was part of the design. He said that he had kept WCBC informed and they were willing to accept this delay based on the explanations he provided.[734]In cross-examination he was referred to the fact that as long ago as April 2011 Kronospan had made a presentation to the CELG about their plan to provide a new biomass plant and a new RCF reception building. They had applied for planning permission for both in 2012, which had been obtained in 2014 on the basis (as discussed above) that this would minimise dust emissions from the RCF unloading, storage and screening process. He was also referred to the fact that the biomass plant was then the subject of a revised planning permission application, which was constructed and commissioned before the RCF reception facility was even begun. He was referred to the permit condition requiring the facility to be completed by 31.7.15, which was based on Mr McKenna having given in correspondence what he described as a realistic completion of the end of June 2015. In January 2016 Mr Baker had then given a revised completion date of the end of May 2016. It was this delay which resulted in a strongly worded complaint in WCBC’s letter dated 5.4.16.[735]It appears that for planning reasons a further planning permission application was required at this point, and was the subject of a separate planning statement dated February 2016 in relation to the “RCF reception facility, grading plant, storage silos and associated infrastructure”. It was explained that this would provide additional storage capacity to further reduce the amount of processed wood material stored outside and thus reduce fugitive dust and noise from vehicle handling.[736]Mr Baker provided, as requested, an interim contingency plan, and explained that the RCF unloading area had been further enclosed with log walls and a narrow entrance, the amount of fines content has been reduced and the RCF screening area would be better protected as would the board shredding area, both of which would also be paused in high winds even though they had mist-air systems. He also explained that production managers would be reminded of the need for take steps to minimise off-site dust emissions.[737]Whilst these proposals are not in themselves an implicit admission that what had been done in the past was not adequate, they are in my judgment an implicit acceptance in mid-2016 that fugitive off-site dust emissions from the RCF unloading, storage and screening had been a problem for a long time and that, despite promises going back to 2011, nothing concrete had been done either by way of permanent solution or interim solution in the meantime until now.[738]Finally, Mr Baker was cross-examined in relation to noise attenuation works. As I have mentioned the 2010 permit required Kronospan to undertake a noise assessment and undertake appropriate noise attenuation works to the lowest practicably achievable by June 2011. A consultancy known as RSK then produced a report and the 2012 permit required further investigations in response and a programme of maintenance, after which a consultancy known as Wakefield was retained to provide budget costings and a report identifying various noise control measures, which were incorporated into the 2014 permit to be done by 31.7.15. Not all were completed by that date, as explained by Mr Baker in a letter to WCBC in August 2015. He agreed that this could have been completed with a little more vigour and that this was one of the reasons he was brought in to do so.[739]In re-examination he agreed that the maximum noise limit of 37DBA required to be achieved by the 2014 permit was an extremely low limit and did not cause him any concern. J. The expert evidence – introduction and overall conclusions[740]As already indicated, there are four experts giving evidence in relation to three separate subject areas. I shall address the detail of the expert evidence in relation to each separate subject area separately.[741]However, before I do so, in the same way as with the factual evidence, I provide an introduction and my conclusions on the expert evidence.[742]First, save to some limited extent in relation to dust characterisation and dust dispersion modelling, this is not a case where any of the experts were manifestly more expert than their opposite numbers in the areas covered by their reports. Because of the overlapping nature of their expertise, and because of the fact that there was not a complete overlap between the areas covered by each, it was likely that one would have more expertise in one particular area within their overall specialism than another.[743]In particular, I consider that Ms Wilson and Dr Datson were of broadly equivalent expertise in relation to what is in my view the expert topic of most importance to this case, namely dust monitoring. In relation to dust characterisation, Dr Anguilano had more hands-on expertise in visual examination of the images. In relation to dust dispersion modelling, Dr Carruthers had more specialist expertise of complex modelling operations in relation to dust than did Ms Wilson.[744]Second, this is not a case where the evidence of any one of the experts was so comprehensively exposed as wrong in cross-examination that I can confidently discount their evidence in its entirety on the key issues in dispute.[745]Third, there is, however, an important difference between the approaches taken by Ms Wilson and Dr Carruthers on their approach to the dust dispersion modelling exercise and that taken by Dr Anguilano and Dr Datson to the dust characterisation exercise respectively which is of some relevance to my assessment of their evidence.[746]In short, and simplifying, both Ms Wilson and Dr Anguilano were dissatisfied with the initial results of the wholly computational dust dispersion modelling exercise which Ms Wilson undertook and the wholly computational dust characterisation exercise which Dr Anguilano undertook, for reasons which I shall examine later. They both therefore resolved to undertake a second stage analysis.[747]In Ms Wilson’s case, that involved re-programming the model by adjusting the input data from that which had been previously agreed between Dr Datson and Dr Gibson, the previously instructed Claimant expert in this field. This was on the basis of what she considered were inconsistencies between the results and what she considered would have been expected, by reference to what she considered other relevant and reliable contemporaneous evidence, most significantly the frisbee 2016/17 data. Having done so, she then re-ran the dust dispersion modelling exercise and gave evidence that in her view the results were both reliable and provided strong support for the Claimants’ case.[748]In contrast, Dr Carruthers was prepared to accept that the results produced by the exercise would have an appreciable margin of error, but did not consider that of such significance as to justify discarding the results. His view was that the contemporaneous evidence relied upon by Ms Wilson, most importantly the 2016-17 frisbee data, was not sufficiently reliable to justify departing from the agreed input data, so that there was no basis for re-running the analysis using different input data.[749]Dr Datson, having undertaken the dust characterisation exercise on a fully computational basis in the same way as Dr Anguilano had initially done, he saw no reason to undertake a visual examination of all of the samples.[750]In Dr Anguilano’s case, that involved undertaking a visual examination of all of the samples as an additional non-automated analysis to see to what extent the samples included organic wood fibres which might have come from the Kronospan site. This was on the basis that she was concerned that the automated analysis was missing wood fibres which might be present. Having done so, she considered that in the vast majority of cases there was evidence of very much smaller wood fibres – which she refers to as “fibrils” - which could have emanated from the Kronospan site. This of course provided support for the Claimants’ case.[751]Having seen the results of the respective second stage analyses of Ms Wilson and Dr Anguilano respectively, Dr Carruthers and Dr Datson disagreed with their respective conclusions and maintained their initial opinions.[752]It would be very unusual for a judge to determine the resultant differences of opinion after a trial in which all four witnesses were extensively cross-examined on the basis of an application of the burden of proof and I do not do so. Nonetheless, in my view a court is entitled to look particularly critically at the evidence of an expert when, as here, they materially depart from the initial common approach (especially where – as with Ms Wilson – that is the result of a prior agreement between experts) in a significant and material manner. That is even more so where, as here, the initial results happen to be adverse to their clients’ case and where their subsequent investigations produce conclusions more favourable to their clients’ case. In my view that expert must satisfy the court that it was appropriate to do so on a purely objective basis and that the results of the second analysis should be preferred to the results of the initial analysis undertaken on the basis of the initial approach.[753]Having considered the evidence, neither Ms Wilson nor Dr Anguilano have been able to persuade me that their change of approach was not at least partially influenced by their desire to see whether or not their further analysis would benefit their clients’ case more than their existing analysis. I am not for one moment suggesting that they did not fully and properly discharge their duties as independent experts but I do consider that their evidence has to be considered with some caution as a result. Moreover, I am not satisfied on my analysis of the evidence that I can safely prefer their opinions based on their changed approach to those made by their opposite experts who proceeded on the basis of the initial common approach.[754]In particular, having re-read Ms Wilson’s reports in the light of her cross-examination and all of the evidence, I am satisfied that she has started from the assumption that the Claimants have justified complaints about dust and that this assumption has coloured her approach to the evidence and caused her to re-run the exercise on the basis that the 2016-17 frisbee data can be treated as reliable when, in my view, it plainly cannot be treated as a reliable indicator of the nature, extent and frequency of dust emissions from Kronospan over the whole of the relevant claim period. Whilst I accept that she was justified in expressing reservations about the reliability of the results of the initial exercise, in my judgment she was not justified in re-running the exercise in the way that she did or in seeking to present the revised results as more reliable than the initial ones.[755]As regards Dr Anguilano, I accept that she had cogent reasons for concerns about how the automated exercise might have missed some wood fibres. However, I am not persuaded by her evidence that what has been missed is a significant number of wood fibres of the type and size which were sampled from the Kronospan site or otherwise the subject of the Claimants’ complaints and evidence. Instead, it appears to be a relatively small number of very small wood fibres which do not appear to bear any relation to those sampled or complained of and whose relevance to the case is not properly explained. Thus, I am not persuaded that, even if she is right about this, it actually provides any significant support for the Claimants’ case.[756]Nonetheless, their evidence has persuaded me that there are some real concerns about the accuracy of the first stage computerised analyses undertaken in each case and, in consequence, that it would be unsafe to place very great reliance on the results as put forward by Dr Datson and Dr Carruthers respectively. I also accept that the approach of Dr Datson and Dr Carruthers is open to the criticism that they have both been overly unwilling to accept the justified criticisms about the weight which can be attached to the dust characterisation and the dust dispersion modelling exercise respectively in relation to this case.[757]In contrast, the dust monitoring exercise is of much more significance to my eventual decision and, for that reason, I address it first and in most detail. Having done so, I am satisfied that, although there are criticisms to be made of both Ms Wilson’s and Dr Datson’s conclusions, the analysis and opinions of Dr Datson more generally accord with my assessment of the factual evidence overall and of the inherent probabilities than those of Ms Wilson and also that his analysis and opinions provide support for Kronospan’s case. K. The expert evidence in relation to dust monitoring[758]The detailed and comprehensive 31 page joint statement from Ms Wilson and Dr Datson produced on 17.2.23 identified the areas of agreement and disagreement between them pre-trial and is a convenient introduction to the evidence on this hotly debated topic. I summarise the most important points below and determine the important points of dispute at the same time under the following subsections: General matters; The frisbee mass deposition data; The dustdisc deposition data; The dustdisc directional data; The Osiris data; The complaints data; The complaints data and the wind data used by Ms Wilson; Other sources of dust soiling. General matters[759]Ms Wilson and Dr Datson agreed that it is appropriate to distinguish cases, such as the present, where the case is about disamenity dust (i.e. dust nuisance by soiling of surfaces), from cases about airborne concentrations of small particle dust which – as already noted - are of particular concern because they are small enough to pass into and the respiratory system and cause injury or disease.[760]They noted that, because there had been a concern about small particle dust, separate testing was undertaken and data was available in that regard from a Partisol monitor and an Osiris monitor, albeit both outside the relevant claim period.[761]They agreed that the relevant air quality objectives set for the protection of human health in relation to small particle dust are not directly relevant to this case.[762]However, they also agreed that the data could be indicative of a local source of dust and analysis of the data in relation to wind direction at the time of sampling could provide information about the location of the dust source. Ms Wilson considered that because the Osiris data was tested on a one hour basis it could be compared with meteorological data, albeit that the results post-dated the relevant claim period. Dr Datson considered this information informative but not definitive, because it was not possible to identify the proportion of the relevant particle size tested as a proportion of the whole.[763]There was no disagreement which in my view is of any real significance in relation to the data obtained from the Partisol monitoring.[764]They considered the frisbee 2016/17 data. They agreed that there was limited information about the specifics of how the exercise was carried out and where the exact locations were. They agreed that because the frisbee data sampling period ran for four weeks from drop off to collection, and because it was not possible to break down dust deposition within that time period, the data does not provide information about short term dust deposition variations.[765]They fundamentally disagreed about how much weight could be attached to the 2016-17 frisbee data. Ms Wilson considered that since it was the best available data for the relevant claim period it should be considered alongside the other contemporaneous evidence. Dr Datson considered that given the lack of information about it generally it should be treated as unreliable.[766]There was some question raised at trial about who undertook the frisbee testing, which is of potential relevance to the accuracy of the process and, hence, the accuracy of the data obtained. Dr Acton said in evidence that it was his understanding that it had been undertaken by environmental protection officers at WCBC. There is no evidence to the contrary. It is difficult to see who else could have done it, given that it was undertaken at the instigation of the CELG, of which WCBC was the relevant government representative in relation to dust emission issues, and it was not done or commissioned by Kronospan. I am satisfied that WCBC’s environmental protection officers did undertake this testing and it is a reasonable inference that as such they would have had basic training and competence in their use. This conclusion is supported by the CELG meeting minutes dated 4.3.19, where Mr Minshall was able to explain the dust collection methodology and confirm that dust collected in the foam insert was washed into the sample. That is a point relevant to a query raised by Dr Datson as to whether foam inserts were used, which would be relevant to the accuracy of the results.[767]I shall need to refer in more detail below to the evidence in relation to the 2016-17 frisbee dust sampling exercise, and the weight which can be placed upon the data and the conclusions which can be reached from that data, below.[768]The experts then turned in their joint statement to the dustdisc dust monitoring exercise undertaken by Mr Acton for Kronospan. They agreed that the dustdiscs were able to collect dust in two separate ways, which enabled more data to be obtained than from the frisbees. The first was essentially similar to the frisbee method, in that dust falling into the dustdiscs was collected on horizontal adhesive sticky pads which could then be measured to provide mass deposition data. The dustdisc sampling period was two weeks (rather than the frisbee’s four weeks) and, in the same way as the frisbees, this allowed the average daily mass dust deposition over the relevant period to be calculated. In the same way as with the frisbees this data did not provide information about short term daily dust variations, although it obviously had a better prospect of doing so due to the reduced sampling period.[769]The experts agreed that, even though the frisbees and the dustdiscs operated in broadly the same way, the collection efficiency was sufficiently different (the dustdiscs were more efficient) that it was not possible to make direct comparisons between the dust sampled via these different methods.[770]The horizontal sticky pads were also tested to provide information as to two additional soiling criteria, %AACGloand %EACGlo. Dr Datson considered that soiling-based criteria is more informative than mass dust deposition criteria in cases such as this, because the complaint is about the visual impact of the appearance of the dust rather than the impact of the total volume of dust. Ms Wilson agreed with this as a proposition and it is plainly correct.[771]%EAC is the longer-established criteria, developed initially by another two-party research team (Beaman and Kingsbury – “Beaman”), which quantifies dust coverage as soiling on a transparent adhesive surface on the basis of a scale, where 0% EAC is pure white with no obscuration and 100% EAC is pure black with full obscuration.[772]According to Ms Wilson, it is used to define the perceived nuisance effect of darker dusts, but may not be as effective for light wood dust such as encountered in this case. Beaman developed a criteria for %EAC which identified the public response as:(a) “possible complaints” at 0.5 %EAC/day;(b) “objectionable” at 0.7%;(c) “probable complaints” at 2%EAC; and(d) “serious complaints” at 5%EAC. Dr Datson disagreed that this would not be effective for light wood dust.[773]This debate seems to me to be a matter of degree, especially given that in this case one is considering the visibility of light dust on receptors with a wide variety of different textures, colours and degrees of shininess. Just because light wood dust on a shiny metallic painted car will be more noticeable than the same dust on a dark matt item of garden furniture or window sill does not mean than %EAC is inappropriate, given that this is not a case simply about dust on shiny cars.[774]%AAC is a similar method, developed by DustScan, used to quantify dust coverage (irrespective of colour) on a transparent adhesive surface. A digitised image of the dust sample contains a set number of pixels, each of which is tested for the presence or absence of any obscuration. If any shade of dark is identified on the pixel it is treated as affected by soiling. The rationale is to identify the total area of the overall sample which is affected by dust, albeit that it does not quantify the degree of the soiling on each pixel. No official or custom and practice guidelines have yet been published for this alternative method.[775]In order to avoid the risk of over-reliance on one or the other criteria, DustScan has developed a set of criteria for annoyance using a combination matrix from the %AAC results and the %EAC results developed from Beaman which is found at table 4.3 of Dr Datson’s report. The experts agreed that using this combination matrix was both helpful and appropriate in this case.[776]Dr Datson had also produced his own site-specific criterion, discussed further below.[777]The principal difference between Ms Wilson and Dr Datson was that Ms Wilson considered that because this dustdisc data did not cover the relevant claim period it was necessary to rely on other sources to evaluate dust nuisance over this period, although she accepted it was appropriate to consider the data as part of the overall data base. In contrast, Dr Datson considered from his experience of dust monitoring programmes that the data could be considered broadly representative of the relevant claim period by itself.[778]Ms Wilson referred to Mr Baker’s evidence, which she said identified changes in site operations and management practices at Kronospan since the end of the relevant claim period. She said that if these changes had led to more effective control of dust emissions then the post July 2017 data would not be directly representative. She accepted that it was impossible to accurately determine the influence they may have had, but considered that they represented “minimum long-term dust soiling conditions in the area and do not take into account the historic nature of the claim prior to the changes implemented by Kronospan”. Dr Datson disagreed, stating that in his view it was impossible to accurately assess the degree of any such change and that the post July 2017 data was broadly representative.[779]In cross-examination Mr Kent made the point to Ms Wilson that she had not addressed these changes or their effect in her report. This was plainly the case. She suggested that the dustdisc dust deposition data from 6.3.17 to 4.1.21 (as presented graphically in her fig. 12 to her first report and discussed below) indicated a trend of reduced dust deposition by reference to the Vallack criteria (see below). Dr Datson’s view in cross-examination was that there was a peak in 2017 but otherwise it was “pretty flat” and, by reference to his own analysis of %EAC over the period, the degree of trend downwards was “not stark”. It seems to me that there is some indication of a reduced trend but that it would be difficult to say much more than that, or to draw with any confidence the conclusion which Ms Wilson draws from that data.[780]In any event, as Mr Kent also put to Ms Wilson in cross-examination, if the major changes had been effected by the end of 2018 that would not account for some quite significant spikes in summer 2019 or again (although to a lesser extent) in summer 2020. Nor would it explain the significant increase in high dust matrix levels at the Co-op sample location or – to a lesser extent – at the site entrance towards the end of the period.[781]Given that the dustdisc sampling programme started within days of the end of the relevant claim period (28.7.17 and 18.7.17 respectively), and given that the changes made at Kronospan occurred in stages over 2018 and, even then, did not result in a complete cessation in open storage in the log-yard, it seems to me to be unrealistic for Ms Wilson to suggest that the data, at least in the initial 12 months (and, albeit with less confidence, the initial 24 months) cannot be considered significantly any less representative than the frisbee 2016/17 data of conditions throughout the relevant claim period. Indeed, since the tenor of her evidence overall is that the dust emissions experienced in Chirk due to log-yard emissions were largely concentrated to areas lying north-east of the log-yard, it is difficult to see why the data outside of those areas should have been significantly affected by the improvements.[782]It does, however, follow from this that Dr Datson may also be subject to criticism for not acknowledging the impact of the post 2017 changes, even if it was not possible to make an accurate assessment of those changes, or at least to recognise that it would have been the dustdisc data up to the end of 2018 which would have been of particular relevance to relevant claim period conditions.[783]As Mr Hart put in cross-examination of Dr Datson, he had failed to give any detailed reasons in his report for concluding that the dustdisc data could be treated as broadly representative of conditions within the relevant claim period. In particular, he had failed to address the impact of the changes made at Kronospan.[784]Mr Hart also took Dr Datson to the section of his joint statement where he said that “from the available information it is not possible to accurately assess the degree to which any changes to site operations might (or might not) have affected dust propagation in Chirk prior to the start of the July 2017 programme of dust monitoring”. In cross-examination he said that this was because there was always a lot of change going on and that it would be a very complex task. He accepted that the changes would or might have led to an improvement but that it was difficult to quantify it.[785]In my view it follows that in my judgment Dr Datson could not confidently have expressed the positive view that the totality of the 2017-20 dustdisc data was representative of dust emissions over the relevant claim period.[786]I also address here one further point raised by Kronospan about the nature and extent of the log-yard emissions. As I have already noted, the major changes undertaken were almost all intended to address the problem of dust wind-entrainment from exposed sources, in particular the stacks of RCF, sawdust and wood chips.[787]To a layperson it is obvious that wind will pick up dust and carry it away. A typical example would be the effect, familiar to most, of a strong wind on a dry sandy beach. This general observation, however, says nothing about how much dust will become wind-entrained at different wind speeds, for how long it will happen and how far such dust will be carried. As referred to below, the dust directional data does not indicate any clear correlation between dust soiling in the locations more remote from the Kronospan site and the wind direction coming from the Kronospan site, let alone from the log-yard area of the Kronospan site.[788]Further, in cross-examination Ms Wilson was referred to a publication known as the US EPA AP42 methodology, with which she was familiar, which contained a section dealing with wind erosion of open aggregate storage piles and exposed areas within an industrial facility. In short, it stated that particulate emission rates tend to decay rapidly (a half-life of a few minutes) during an erosion event and that any natural crusting of the surface binds the erodible material, thereby reducing the erosion potential. In other words, and perhaps counter-intuitively, it states that even in high winds dust emissions do not continue unabated from such piles for a long time.[789]It is, therefore, highly likely that in windy, warm and dry conditions, high wind gusts would have led to dust emissions from exposed dust particles in the log-yard area. However, on the evidence, these dust emissions would not necessarily have continued to the same extent for very long in normal conditions and nor is there any body of research material which indicates how far they would have been carried. Further, the reduction in dust emissions rates will of course be increased if and to the extent that effective measures are taken to damp down affected areas.[790]The dustdiscs also included vertical, 360 0 cylindrical adhesive sticky pads containing 24 15 0 sectors. The amount of dust deposition on each individual segment was separately tested by reference to the %AAC and %EAC soiling criteria (it cannot, of course, collect horizontal dust to obtain mass dust deposition data). As will be apparent:(i) the presence and extent of soiling in a particular segment of the column is indicative of dust propagation from the direction in which the segment was facing; and(ii) this is predominantly dictated by the prevailing wind direction at the time of deposition. In short, if the dustdisc was situated due east of the Kronospan site, and the dust deposition was all on the west-facing 15 0 segments, then it may reasonably be concluded that the dust had all come from the direction of the Kronospan site. Again, however, the results of this directional data (also referred to as dust flux data) could only reflect the average over the 14 day period, so that it was not possible to identify more short lived directional deposition events within that period.[791]In the same way as above Ms Wilson and Dr Datson were unable to agree as to whether it was appropriate to rely on this directional data in relation to the relevant claim period. In the same way as above Ms Wilson considered that it was necessary to rely on this directional data in combination with other sources, especially given that it only gave an average over the two week sampling period, whereas Dr Datson considered that this data could be considered broadly representative by itself.[792]My conclusions on this point are broadly the same as they are in relation to the depositional dust data and for broadly the same reasons.[793]Leaving aside the fundamental disagreement about how far the 2017-20 dustdisc data can be transposed to the relevant claim period, the experts agreed that otherwise that data provided a comprehensive dataset from which a range of conclusions could be drawn. There were seven locations, shown in fig. 11 of Ms Wilson’s first report and fig. 4.8 of Dr Datson’s report. It appears that three were chosen to replicate, so far as practicable, the locations used in the CELG 2016-17 sampling programme. It also appears that the precise locations may have varied over time, but not such as to make any significant difference to the overall picture.[794]The first was in the North East area at 5 Crogen, close to the junction with Holyhead Road and to Darren Hughes’ house, and south of Lodgevale Park. This was fairly close to the Lodgevale Park frisbee location, and would have been a very useful source of data. However, the directional data was discounted by the experts because the location was too close to a local business from which windblown dust was likely to have skewed any results.[795]The second was in the East 1 area at 10 Charles Street, Mr Poppitt’s house, not very far south from Crogen and also not very far north-east of Mrs Green’s house on West View. It would be expected, therefore, to provide a useful source of data in relation to this case.[796]The third was at the Co-op on Holyhead Road in the East 2 area right next to the Kronospan site adjacent the log-yard area and, again, would be expected to provide a useful source of relevant data.[797]The fourth was at Ashover, at Andrea Twigg’s house, in the East 2 area, also on the Holyhead Road and between the Co-op and the Kronospan site entrance.[798]The fifth was at the Kronospan site entrance.[799]The sixth was at the Parish Hall, further down Holyhead Road from the site entrance in the East 3 area, close to the previous Maes-y-Waun frisbee location. The location varied over the programme duration. The experts agreed that the directional data from the second location was unreliable and unusable although again the depositional data was useable.[800]The seventh was in Ceirog in the South area, again close to the same previous frisbee location in that area.[801]There was also an eighth, at Victoria Road in Wrexham, added as a control later.[802]For some reason no dustdisc was located in the same area as the Lloyds Lane site, near the Chirk school, where the fourth previous frisbee was located.[803]A number of “baseline” sites were also identified by the respective experts, then Dr Gibson for the Claimants and Dr Datson for Kronospan, chosen on the basis that their location made them indicative of the general level of dust in Chirk, excluding any impact from the Kronospan site. As the experts agreed, they are not strictly accurately described as “baseline” sites, because that usually describes sampling undertaken before a particular activity the subject of interest commences, so that the better description is “background” sites. They were all sites to the south and south-east of the Kronospan site, selected on the basis that they were thought unlikely to be affected by any dust from Kronospan given the prevailing wind directions.[804]Ms Wilson considered it unhelpful that there was no monitoring in the areas she regards as most likely to be affected by dust from the log-yard, which she believed were in the West View and Wern areas. In my judgment, there is no real basis for this objection, which simply reflects Ms Wilson’s personal view as to where she considers the greatest dust emissions from log-yard emissions would have been experienced. It is obviously unhelpful that the Crogen location, reasonably close to both, produced unreliable directional data. However, 10 Charles Street is not very far from Crogen or West View. Further, as Dr Datson stated, if the log-yard was a significant source of dust then the Co-op monitor was likely to be as much affected as was those two locations. The frisbee mass deposition data[805]Regarding the utility of the frisbee mass deposition data, it is common ground that there are no UK (or, for that matter, EU or WHO) statutory standards or minimum limits in relation to the measurement of deposited dust or to identify the point or points at which it may or does cause objectively significant degrees of annoyance or disamenity capable of amounting to a nuisance.[806]Ms Wilson also noted that there are also no statutory standards or minimum limits, and no specific current guidance as to the frequency of occurrence above which people may, or do, not tolerate dust incidents.[807]She had, however, noted that ministerial guidance from 2005 in relation to mineral extraction stated, although without any referenced evidence base, that a community might be prepared to tolerate a dust incident once a month but not repeated incidents of once or twice a week.[808]This guidance also noted that a community’s response to dust was influenced by such factors as the identity and social factors of the area and the community in question, their personal experiences and any adverse publicity.[809]In my view this guidance appears reasonably sensible, although of course the nature, extent and impact of the dust and, in particular, any rational health concerns in relation to the dust, will make a big difference. As to the adverse publicity, given that what does or does not amount to a legal nuisance is a matter for objective assessment, increased sensitivity to nuisance due to publicity, justified or otherwise, should not be taken into account. It follows that if, as I am satisfied is the case, Chirk residents were more likely to complain from around 2015 due to increased adverse social media publicity and due to the involvement of and facilitation by Hugh James becoming involved, that should not be taken into account.[810]The experts agreed that there was a commonly applied “custom and practice” dust deposition threshold of 200 mg/m2/day, based on data taken from sampling undertaken using frisbee gauges, and derived from research conducted by the researchers Vallack & Shillito (“Vallack”). It was arrived at by multiplying a historical, typical UK median background by 3.5 to reach a “complaints likely” figure. However, the experts also agreed that this was not a definitive threshold for the onset of nuisance, merely an indication at which complaints about dust might occur in certain circumstances according to a variety of factors.[811]Ms Wilson also noted that the same research had provided thresholds for three categories of location where no reliable local background data (defined as 12 months minimum measurement data) existed, as the experts agreed was the case here in relation to the relevant claim period. Disregarding the first category (open country), the second is identified as residential areas and the outskirts of towns and the third as commercial centres of towns. The figures for the second are(a) 203 mg/m2/day - complaints likely; and(b) 146 mg/m2/day - complaints possible. The figures for the third are 261 mg/m2/day - complaints likely; and (b) 199 mg/m2/day - complaints possible. This reflects the fact that inhabitants of these three different location types will be used to a certain level of background dust and it is only an appreciable increase beyond this level which may or will generate complaints.[812]The second category (residential areas and the outskirts of towns) is the most directly applicable to the residential areas of Chirk where the lead Claimants live. However, if one takes Chirk as a whole, including the town centre, the reasonably busy Holyhead Road and Station Road and the established industrial areas, as well as the residential areas, i.e. the overall established pattern of uses in Chirk, in my view somewhere between the second and the third is more appropriate. That would mean a complaints likely figure of around 230 mg/m2/day and a complaints possible figure of around 175 mg/m2/day.[813]I would therefore be inclined to regard 200 mg/m2/day as the lowest minimum for likely complaints and 230 mg/m2/day as a more likely minimum.[814]In his report, Dr Datson also referred to guidance issued by NRW in 2013 which stated that this threshold did not properly reflect the nuisance effect from low density material, such as woodchip. This is because the soiling effect is not directly correlated with the mass of what is deposited. The guidance suggested a “better approach” as being to use a “bespoke benchmark limit derived by correlating observed dustfall rates with complaints data or community responses”.[815]In cross-examination Dr Datson was asked about this in the context of why he did not attach weight to the history of reported complaints. He expressed concern about how the complaints could be screened for bias, conscious or unconscious, although he did say that he had had regard to the log of complaints maintained by Kronospan.[816]In reality, whilst the NRW guidance is perfectly sensible advice where there is no significant risk of complaints or responses being skewed by, for example, local campaigns seeking to achieve a particular objective, for example tighter conditions being imposed on a site, it is difficult to see how this data could be reliably relied upon. In my view this caution would also apply in litigation, such as the present, where there is a real risk of complaints being influenced as above or, also, by the adverse publicity from the involvement of solicitors promoting claims and then actual litigation.[817]This brings me on to a more fundamental point. For a correlation of observed dustfall rates with complaints data to have value what is required in my view is a reliable dust monitoring programme and a reliable complaints gathering exercise being undertaken at the same time. That is not something which has been undertaken in this case, whether during the relevant claim period or otherwise.[818]There was the relatively limited (both in duration and scope) frisbee 2016/17 data exercise. The results can be compared with the Kronospan RHRs, which cover the whole of the relevant claim period. They could also be compared, but only for a very short time from 9.3.17 to 20.4.17, with the nuisance record sheet as compiled by Mr and Mrs Green. However, there was no frisbee installed at Mrs Green’s property over the same period, so that it is not possible to compare her record of complaints with reliable dust sampling data from her property, with or without associated wind directional and speed data. There was only one complaint from the Greens to Kronospan over this period recorded in the schedule of complaints, so that there is little opportunity to cross-check the complaints with Kronospan’s investigation records.[819]In his oral evidence Dr Datson also referred to the Vallack procedure (copied in fig. 5.5 of Ms Wilson’s first report) which – as noted above - begins by asking whether reliable background data (12 months minimum) existed. If so, then if the sample data was 3.5 times or more of the background data complaints were “likely”. The experts had agreed that there was no such reliable background data for the relevant claim period although, as will be seen later, Ms Wilson was cross-examined on the alternative assumption that data of sufficient reliability was available.[820]Given that Hugh James first wrote to local residents in July 2016, it would have been just about possible for such an exercise to have commenced and finished by the end of the relevant claim period. That it was not is not the fault of Hugh James, who obviously had a number of matters to investigate at that point. However, insofar as the data is not available that is the consequences of the Claimants’ decision to issue proceedings before doing so. Although some attempt was made to blame Kronospan for this, it is difficult to see how it can be criticised for not beginning the dustdisc exercise any earlier than it did.[821]The experts also agreed that the Vallack mg/m2/day figures had not been re-calibrated to take into account the difference in sampling efficiency as between frisbees and dustdiscs. Finally, they agreed that there was insufficient data available to derive a local or source specific threshold, or to calculate a local threshold in relation to the baseline location data, because all of the results were below the limits of detection.[822]Nonetheless, Ms Wilson considered this threshold to be a useful indication of the risk of dust complaints and, in relation to the dustdisc data, a useful indication of periods when dust depositions were elevated. She agreed that it would be necessary to consider not just whether or not the threshold was exceeded on a monthly average basis but also the frequency, location and effect of the dust deposition.[823]She had also used this threshold to calculate “complaints likely” and “complaints possible” thresholds to identify levels at which dust complaints are likely and possible applying the 203 mg/m2/day and 146 mg/m2/day figures respectively.[824]As already stated, I consider the 203 mg/m2/day figure as too low for this locality and 230 mg/m2/day as more reliable. However, in my judgment, it is no more than a very approximate indicator in any event, especially given that:(a) the threshold was largely derived from experience in relation to dark mineral dusts such as coal dust;(b) in the context of the dust which is complained of here, i.e. light wood dust landing on a variety of different surfaces, there is less obvious direct impact across the board. Dust such as that complained of here is most obvious – and likely to be annoying - on the surface of a newly washed dark metallic painted car in sunny weather than on a light brown window sill in cloudy weather. However, in the same way, any deposits on a newly washed car will be annoying, whether that is dust from adjacent vegetation or general dust from other sources or smuts left after a rain shower. As against this, as the Claimants submitted, the fact that dust particles from wood are lighter than dust particles from denser minerals, it may well be that there will be a greater accumulation of wood particles than denser mineral particles even though they will have the same mg/m2/day reading.[825]In relation to the 2016/17 frisbee data the experts agreed that dust deposition in excess of 200 mg/m2/day was measured at times at each sampling location, that in two locations (Lodgevale Park and Maes-y-Waun) the mean value was also in excess of this threshold, that median values at all four locations were below the ‘complaints likely’ threshold, and that at three of the four locations (not Maes-y-Waun) below the ‘complaints possible’ threshold.[826]In relation to the 2018/19 frisbee dust monitoring undertaken for CELG the experts agreed that the measurements were much lower, with the vast majority below both the ‘complaints likely’ and ‘complaints possible’ threshold. They also agreed however that there was one “rogue” result which suggested an error and called into question the competence of the CELG monitoring.[827]The difference between the experts is that Ms Wilson nonetheless believed that the frisbee 2016/17 data indicated that a threshold indicative of complaints being likely was regularly exceeded over that period, albeit that it was not sufficient to provide evidence on the presence or absence of any specific materials. In contrast, Dr Datson believed that any such conclusions should be treated with caution and that the SEM analysis of the samples showed that the main material in the samples was grit, probably from the road, rather than organic material, which might have emanated from Kronospan.[828]In my judgment the data is far too variable as between sites and as between different periods to draw a firm conclusion such as that reached by Ms Wilson. In the first five periods there are instances of rates exceeding 230 mg/m2/day, whereas in the last four there are none in any area. In that five week period there are only nine out of a possible twenty periods where rates exceeded that threshold. Overall the threshold was only exceeded in nine out of a total thirty six periods, i.e. in 25% of all periods.[829]There were two successive periods where the threshold was significantly exceeded at Lodgevale Park, in August and September 2016. In the first such period there was also a significant exceedance at Maes-y-Waun. Surprisingly, however, in August 2016 Ceiriog Close also exceeded that threshold even though it is in the South area chosen as a baseline site. In contrast, Lloyds Lane (Chirk school), close to Maes-y-Waun, recorded no observable deposition, which either indicates a surprising and unexplained discrepancy or an error of some kind.[830]In none of the locations does the mean or median exceed 230 mg/m2/day. Whilst Lodgevale Park has three results exceeding 200 mg/m2/day, Maes-y-Waun – as the only other with a mean above 200 mg/m2/day – only achieves that due to a surprisingly high (621 mg/m2/day) figure in December 2016. This is not a period when records indicate any significant unplanned emissions event or any significant number of RHRs from this area.[831]On any view there is no consistent pattern of high dust deposition rates which is consistent with a significant problem with dust, whether at individual sites on a consistent basis, or all sites on a consistent basis, or otherwise. It also only covers a period of less than 10 months in the context of a six year period, noting the observation by Vallack, as referred to above, that a minimum of 12 months’ data is required to obtain reliable background data.[832]In my judgment the most which can be said, comparing the frisbee 2016/17 data with the contemporaneous records, is that there is some evidence that the late summer and early autumn of 2016 was a bad time for dust emissions and this may explain the picture of higher results. However, this evidence does not in my judgment support a case that there was a persistent problem of significant dust emissions over the whole of this period, let alone that it was all or even substantially due to dust emissions from Kronospan, given the analysis which is available in relation to those samples.[833]I am thus unable to accept Ms Wilson’s conclusions at paragraph 4.8 of her first report that:(i) this data provides “robust evidence that dust soiling sufficient to cause nuisance has occurred”;(ii) “the risk of likely complaints was a regular occurrence”; or(iii) it is possible to draw an inference that “the source of dust is large and potentially elevated some distance above ground to enable substantial dust to travel large distances”.[834]Insofar as point (iii) is intended to support the proposition that the most likely source of that dust is the Kronospan log-yard, it does not engage with the fact that there is no evidence of wood dust being found in the samples from Lodgevale Park and Maes-y-Waun and only limited evidence of wood dust being found at the Chirk school.[835]Dr Datson was criticised in cross-examination for making no reference to the CELG data in his report conclusions or even expressing a view as to what weight could be attached to it. These are fair criticisms, but he did refer to and reviewed the data in section 7.2 of his report, so that it cannot be said that he simply ignored it. He was also cross-examined on the basis that he persistently sought to downplay the weight which could be attached to this data. Again, there is some truth in that criticism, especially in his comments in the joint statement where, as I have said, he seemed to cast more doubt than was reasonably justified as to whether any weight at all could be attached to this data.[836]However, given the limited scope and duration of the programme, the disadvantages of the frisbee gauges compared with the dustdiscs, the lack of any detailed or contemporaneous evidence as to how the sampling programme was undertaken and the actual results, it does not seem to me that Dr Datson as a dust monitoring expert should be the subject of serious criticism for only attaching limited weight to this data. I accept his evidence that the results were erratic and, therefore, likely to be unreliable, albeit if not to the same extent as the later CELG sampling (although, since the evidence indicates that they would have been undertaken by the same team, that must itself shed some further doubt as to the reliability of the earlier sampling exercise). There is no compelling analysis or compelling reason to consider that the erratic nature of the results was due to some equally erratic nature of the dust emissions from Kronospan over the same period.[837]In my judgment Ms Wilson can be subject to similar criticism for seeking to overstate the reliability of the frisbee 2016/17 data and to attach overmuch weight to it by seeking to suggest that it must be reliable not only in relation to the period covered but the whole period from July 2011 onwards. She also did not consider whether the weight which could properly be attached to it should be cross-checked against the 2017-2018 dustdisc data, even allowing for the uncertainties which attached to the extent to which that data was impacted by any changes to the factory over that period.[838]In cross-examination Mr Kent also suggested to Ms Wilson that a useful cross-check was to apply the approach proposed by Vallack (see fig. 5.5 of Ms Wilson’s first report) in cases where there was reliable local background data for a minimum, of 12 months, i.e. to ask whether the measured dust depositions exceeded 3.5 times the measured background figure. Although he acknowledged that none of the available data would strictly have met that criteria, he suggested that it was reasonable to take as local background data the dustdisc data results from the locations chosen jointly by her predecessor Dr Gibson and Dr Datson for that purpose and then to apply the method suggested by Vallack to see whether the comparison indicated that complaints were likely.[839]On that basis, it appears from the frisbee 2016/17 data that this complaints likely threshold was only achieved in two test periods at Lodgevale Park and in a further two test periods The second was only two mg/m2/day below, so I have included it. at Maes-y-Waun, i.e. only four out of a total of 40 possible test periods.[840]In re-examination, Mr Hart rightly drew Ms Wilson’s attention to the agreement reached between herself and Dr Datson that it was not possible to calculate a local threshold from the data collected during the baseline survey, because all the results were below the limits of detection. Nonetheless, in cross-examination Ms Wilson had been willing to agree that the median of the figure from Ceiriog Close was the best one in that data set, which is the one which Mr Kent had used for his cross-examination.[841]Thus, whilst it can only be a useful cross-check, it does not seem to me to be unreasonable to use it as such. On that basis, it does indicate a much more limited pattern than suggested by Ms Wilson and demonstrates the dangers of seeking to draw the conclusion which Ms Wilson has drawn from this limited data set in isolation from the other data which is available.[842]In cross-examination, Ms Wilson expressed the view that the analysis undertaken by the author of the 2017 report as regards correlation between dust deposition and wind direction and speed was flawed, because the data taken from the Kronospan site based anemometer was unreliable, She said that this is because the wind as measured at that location was liable to be influenced by wind funnelling from the surrounding buildings, suggesting in particular that winds from the west and the north-west were being blocked by the Kronospan buildings to the west and north-west of the anemometer location.[843]In his report Dr Datson had said that analysis of the data from the anemometer had shown a significant effect by local buildings and “therefore the wind data will not be representative of wind conditions over the wider Chirk area”. In examination-in-chief he was asked about this and said that in his view the anemometer was about 6-7m from the ground and “pretty good” for dust monitoring at least in the immediate locality of a few hundred metres from the anemometer, whilst accepting that it would not be so for the whole of Chirk.[844]In advance of the trial Ms Wilson had compared the wind roses produced in the 2017 CELG report using the Kronospan anemometer and those which she had produced using the data from the closest wind station at RAF Shawbury (which she had also used for her analysis of the dustdisc directional data – addressed below).[845]However, as was pointed out, she had not attempted to explain how the unusually high reading for Maes-y-Waun (621 mg/m2/day for December 2016) was explained by the weather data from that closest wind station. Nor had she used that weather data (or the data available for Chirk itself) to demonstrate how running the same results against the CELG data would have shown that there was a correlation between high dust deposition results and winds from Kronospan. This was a surprising omission, given that since Ms Wilson believed that the frisbee 2016/17 data was a reliable and significant source of contemporaneous data one would have thought that she would have wanted to undertake her own investigation into whether there was a correlation between then frisbee 2016/17 data wind directions and speeds.[846]Nonetheless, there is a reasonable basis for her concerns about using the Kronospan anemometer to undertake a Chirk wide assessment of a possible correlation. Mr Hart observed that in his report Dr Carruthers had said that he and Dr Gibson had agreed that “the wind measurements at the Kronospan site are heavily influenced by the main site building so the measured wind direction is unreliable. This in turn means the analysis in that report is unreliable”.[847]Dr Carruthers was asked about this by Mr Hart in cross-examination. He attempted to row back a little from his use of the word “unreliable”, saying that “for most quarters it's going to give the right direction, but one has to be careful when the wind is blowing from the west because there is a long stretch across the buildings”. That direction, however, is of most interest anyway in this case.[848]Overall, I accept that it would be unsafe to place any reliance on the conclusions of the 2017 CELG report in relation to the impact of wind direction, but that does not impact on the rest of the conclusions in the 2017 CELG report.[849]Of most relevance for the purposes of this trial is my firm conclusion that the frisbee 2016/17 data, whilst undoubtedly relevant, is not sufficiently reliable to bear the heavy weight placed upon it by Ms Wilson.[850]I will address later the significance of Ms Wilson’s point that what is relevant is not the average daily dust deposition data but individual dust emission events. The dustdisc deposition data[851]The experts agreed that deposited dust levels were highest at the Kronospan site entrance, but disagreed as to how the data should be used and as to the most significant conclusions to be drawn from that data.[852]Ms Wilson believed that the data indicated that dust levels had continued to be elevated, especially at locations closer to the Kronospan site, whereas Dr Datson believed that they showed low deposited dust levels in all residential locations, and also observed that the directional data does not identify the log-yard as the source of dust and, instead, indicated road traffic at the site entrance and weighbridge area as the sources of dust.[853]It is difficult to square Ms Wilson’s statement in the joint statement with the dust deposition data which she summarised in section 6.8 of her report, given that there were only two two-week periods up to September 2020 where the 203 mg/m2/day threshold was exceeded in any one place, and that was at the Co-op site, and only one two week period where it was exceeded otherwise, which was in the period ended 6.10.17 where it was exceeded at Crogen, Charles Street and the site entrance. The daily median at all sites never exceeded 80 mg/m2/day, when the UK background median was itself 56 mg/m2/day.[854]No matter what spin Ms Wilson attempted to put on this in her graph analysis at fig. 12, by including reference to the lower 150 mg/m2/day complaints possible threshold, on any view that is a very modest number of occasions when this threshold was exceeded and ought, on any sensible view, have called into question her conclusion drawn on the basis that the frisbee 2016/17 data could be taken as reliable evidence that “the risk of likely complaints was a regular occurrence”.[855]Ms Wilson had produced a graph analysis of the results using the combination matrix in fig. 14 of her first report, which showed that:(a) there was no very high risk at any location in any period;(b) at the Kronospan site entrance there was a fairly frequent high risk from the start of the monitoring period (18.7.17) for the next two years; (b) there was a high risk in autumn 2017 at the Co-op and Crogen and again over much of the spring to autumn of 2018;(c) there was also a high risk in a small period from late September to early October 2017 at Ashover, Ceiriog and Charles Street (but not at the Parish Hall) and again more intermittently through spring to autumn 2018.[856]Ms Wilson said in examination-in-chief that the lower risk results in these last four sites was explained by their being further away from the Kronospan site and there would be occasions where people were being more affected by dust than at those locations. However, unless by further away she meant further away from the log-yard, as opposed to from the Kronospan site as a whole, that is not obviously true in relation to Ashover or the Parish Hall.[857]Whilst it is true in relation to Charles Street, that location is of particular relevance because, if dust from Kronospan was being blown towards the Co-op and Crogen (i.e. in an easterly and north-easterly direction), then that same wind direction would take any such dust on towards Charles Street, yet the evidence indicates that dust was not reaching Charles Street on anything like the same regular basis.[858]It would also appear to follow from Ms Wilson’s analysis of distances that most of the areas where most of the lead Claimants live are no closer to either the site entrance or the Co-op than are Charles Street or Ashover and, to the contrary, are further away.[859]Dr Datson had assessed the dustdisc data from August 2017 to September 2020 against the Beaman public response table. His fig. 7.11 showed that although some results exceeded the 0.5% EAC “possible complaints” threshold and the 0.7% EAC “objectionable” threshold in the locations closest to the Kronospan site, none came anywhere near the 2% “probable complaints” threshold, let alone the 5% “serious complaints” threshold, and the position was significantly less more generally, especially after two spikes in October 2017 and March 2018.[860]Dr Datson had also considered that the better approach was to use the %EAC criteria to determine a site-specific criterion for ‘complaints likely’, using research criteria to arrive at a threshold of 0.78% EAC (taking the 3.5 times figure referred to above). Ms Wilson did not disagree with this figure, which was very close to that used by reference to the sites in Chirk which were distant from Kronospan. By reference to the data shown in his Table 7.5 he had concluded that this was only reached in under half the samples at the site entrance, only a quarter at Co-op and Crogen and none elsewhere. Even in Charles Street and Ashover, both sites close to Kronospan, the percentage was only 2% and 3% respectively. The end result, as he said, was that in only one residential site that there was a significant proportion of complaints likely events and, even in that location, it was only 22%, where the amount of dust overall was likely to be affected by the vehicle hire site close by and by the impact of road generated dust from Holyhead Road.[861]In my judgment this data indicates that significant dust emission events due to emissions from Kronospan were not experienced in the residential areas of Chirk in the 18 months period immediately following the end of the relevant claim period. In my judgment this data indicates that Ms Wilson’s reliance on the frisbee 2016/17 data as demonstrating that nuisance levels of dust were present in the residential areas of Chirk on a regular basis in the relevant claim period is wrong. That is because this more reliable data can, with reasonable confidence, be treated as good evidence of the position in the period covered by the frisbee 2016/17 data and, as indicated, demonstrates that there were very few significant dust emissions events experienced in the residential areas of Chirk over the relevant claim period.[862]Again, I will address later the significance of Ms Wilson’s point that what is relevant is not the average daily dust deposition data but individual dust emission events. The dust directional data[863]Ms Wilson had applied the combination matrix to this data. In my judgment, despite her best efforts to salvage what she could from this analysis, it provided at most very limited support for the Claimants’ case. That is because:(a) it was only at the Co-op and the site entrance that there was any high or medium risk dust directional deposition of any significance;(b) there was virtually no such risk at any of the other locations;(c) there was relatively little high or medium risk until 2019-20, which is inconsistent with a relatively constant pattern of deposits during and immediately after the end of the relevant claim period;(d) the direction of such dust deposition risk was not uniform, so that at the Co-op in the early years it was largely from the south west, whereas at the site entrance over the same period it was largely from the west and north-west. Ms Wilson did not provide any explanation for the difference.[864]There was only one two week period (6.10.17 to 18.10.17) where high matrix results were observed at Ashover, Ceiriog, the Parish Hall, and Charles Street, but from varying wind directions, i.e. not just from the direction of the Kronospan site. Ms Wilson agreed that this appeared to imply that there was a lot of dust in the area at the time. It is possible, as was suggested to her, that this episode coincided with the arrival of Saharan dust to the UK on 16.10.17, but that seems to me to be little more than speculation. This outlier result cannot, in my judgment, prove anything of any wider significance.[865]The most that could be said was that the direction of dust in relation to the Co-op and the site entrance was generally from the direction of the Kronospan site. This showed that in these two locations, very close to the site, the principal source of dust was from the site, but that did not significantly assist the Claimants in showing that any such dust continued any further into any of the residential areas where they lived.[866]Explanations for this may include, as indeed Ms Wilson said by reference to her criticisms of the wind data from the Kronospan anemometer, that in relation to the site entrance there was a fairly substantial factory building between the log-yard and other exposed areas on the one hand and the dustdisc gauge on the other. Even in relation to the Co-op there was a formalin plant building and other structures, as well as a bund and line of trees, between the log-yard and other exposed areas on the one hand and the Co-op on the other. The pre-production area was also some distance away from both.[867]The absence of a clear connection between the log-yard, wind direction and wind speed in relation to %EAC and %AAC is also demonstrated by the visual summaries produced by Dr Datson in his detailed and compelling analysis of the dustdisc data in section 7.5 of his report. Although there is a pattern of higher coverage in the three locations closest to the site (the Co-op, site entrance and Ashover) when winds are blowing from the west, including the north-west and south-west, the wind directions are not obviously associated with the location of the log-yard relative to those three locations. There is no real connection at all in relation to the more distant locations. The Osiris data[868]Ms Wilson believed that the data from the Osiris monitors was of some relevance, because it provided data on an hourly basis which allowed direct comparison with meteorological data over the same period. From undertaking this comparison she identified a correlation between strong winds from the direction of the log-yard and high particle concentrations which, she believed, provided support for the dust coming from that source. Dr Datson does not believe that the data, properly analysed, provides any support for this conclusion.[869]It appears to me that this data provides at best limited support for Ms Wilson’s opinion. It is based on her evidence that in 2021, which was the only one of the three years from 2020 to 2022 when wind speeds exceeded 12 m/s (metres per second) from the north-west, there was a very high probability that the highest 25% of smaller particles captured by the Osiris monitors at Chirk School would be recorded.[870]She suggested that this was indicative of winds whipping dust from the exposed surfaces of stockpiles. However, this was not also the case in relation to the other years, where there were other correlations in relation to other wind directions. Additionally, although there was a similar correlation in relation to Chirk hospital, there the correlation related to winds from the north-east. Although Ms Wilson suggested that there were plausible explanations for these correlations, viewed as a whole this evidence does not seem to me to show a particularly strong connection. In summary, it seemed to me that Ms Wilson was cherry-picking the one result which might provide some support for the Claimants’ case and seeking to ignore those which did not.[871]She also accepted that high winds of 12m/s were quite rare in any event, so that this data does not seem to me to explain the frequency of the dust deposition complained of by the Claimants in this litigation.[872]In contrast, Dr Datson’s explanations in his report appeared more compelling. At the conclusion of her cross-examination on this point she was prepared to accept that this data did not really take the case much further. The complaints data[873]Ms Wilson and Dr Datson also separately addressed the conclusions they believed could be derived from an analysis of the complaints data. They noted that people have variable responses and differing tolerances to dust soiling, albeit that most people fall between the extremes of high and low tolerance. They fundamentally disagreed as to whether or not there was any specific relationship between weather, location, dust mass deposition and/or dust soiling on the one hand and complaints on the other.[874]Ms Wilson’s essential conclusions were that:(a) the complaints represent a minimum level of actual instances of dust soiling;(b) there was a statistically significant difference in ‘complaints days’ and ‘no complaints’ days when winds are blowing from Kronospan towards all areas of Chirk; and(c) in the absence of a comprehensive monitoring survey covering the full claim period and area, the complaints data provided the most reliable evidence of dust nuisance during this time.[875]Dr Datson did not agree with this analysis. He did not accept the criteria adopted for the wind speed analysis and noted only a limited correspondence (in the North East area) between complaints and measured dust soiling in the immediate post relevant claim period.[876]In her first report Ms Wilson had identified 475 Dr Datson had taken the same figure, whereas Dr Carruthers had taken a figure of 469 (see paragraph 5.2 of his report), but the discrepancy is too small to be material. complaints logged by Kronospan in relation to dust from January 2011 and September 2017, with complaints being made in almost 90% of all months in the period.[877]Analysis of these RHRs shows that the dust complaints were associated with dust on 253 separate days during the claim period; the majority of these relate to dust deposited on cars. Given that the relevant claim period is seven years, i.e. 2,555 days , that means that complaints were made on average on 10% of all days in the period with, on average, two complaints being made on each such day. That statistic at first blush appears significant.[878]However, a proper statistical analysis would need to investigate how many complaints were made on specific individual days (a significant proportion, it transpires) and how many by the same household (again, a significant proportion).[879]Also, since there are approximately 1,800 households in Chirk, the number of complaints made over the relevant claim period still amounts to only a vanishingly small percentage of the total number of potential complaints, namely 4.6 million (1,800 x 365 x 7). Even if one only considers the 253 days when complaints were actually made, it is still a small number of those who might also have complained if the occurrences were widespread (approximately 460,000 such complaints)[880]Of course, no-one would seriously expect every household to complain every day of every year, but it is important to place the number of complaints in context, given that the Claimants’ case is that the nuisance caused by dust emissions from Kronospan in Chirk was, and remains, significant, frequent and endemic across most of residential Chirk.[881]In cross-examination Ms Wilson accepted, obviously correctly, that the complaints could not, from a scientific point of view, be regarded as independent or objective.[882]She also acknowledged that 82 complaints (almost 17.25%) of the total related to a single incident on 8.12.12. My workings show that if this incident is deducted from the total that produces an adjusted total of around 400 complaints over an 80 month period, which averaged out amounts to only 5 a month across all of the residents of Chirk.[883]She also acknowledged that 167 of the 475 complaints (approx. 35%) had been made from eight locations, of which most (36) came from Castle Walks (where 12 alone came from Mr and Mrs Bell). This, of course, is in the South area where, according to her expert evidence, there was one of the lowest likelihoods of dust deposition from Kronospan. The second most in number (33) came from just one address in the North-East area – although not identified I suspect from another claimant Mr Rodway. Mr John Jones (from the East 3 area) only made one complaint during the relevant claim period but then proceeded to make around 70 by the end of 2022. Fig. 22 in Ms Wilson’s report shows the wide geographical spread of such complaints.[884]In my view this evidence in itself demonstrates that the complaints cannot by any means all be regarded in themselves as independent or objectively established. Neither party has to my knowledge undertaken the exercise of working through the RHRs to identify:(a) the chronological and geographic spread of all complaints;(b) the number of complaints capable of being correlated to documented unplanned emissions or log-yard emissions contained in Schedule 1 notifications or EIRFs;(c) the number attributable to repeat complainers (although the identity of the makers of all complaints other than Claimants had been redacted by Kronospan, that appears to me to have been inappropriate or - at least – that any legitimate concerns were capable of being addressed by less impactful redaction (i.e. using anonymised initials or by way of confidentiality ring);(d) by reference to the Kronospan investigations as recorded in the RHRs: (i) how many were identified as apparently genuine and apparently consistent with Kronospan dust; (ii) how many of these were specifically attributed to unplanned emissions or to log-yard emissions; and (iii) how many were identified as unproven or unfounded.[885]In my view the primary onus was on the Claimants, seeking to rely on these complaints as genuine and reliable and an important limb of their positive case, to undertake this sort of detailed analysis to demonstrate to what extent they support their case. Although Ms Wilson refers in her report (paragraph 9.18) to having undertaken an analysis of the complaints data, and to have taken account of a number of uncertainties there mentioned, there is nothing in section 9 of her report, where she addressed the complaints data, or in her appendices, which shows that a detailed analysis of the kind mentioned above has been undertaken in this section of her report or how all relevant uncertainties have been taken into account. The most substantive analysis was her comparison of complaints with wind direction data, which is addressed separately below. In my view, despite what she said in this respect, in reality Ms Wilson has effectively treated the complaints as all indicating the presence of nuisance levels of dust emanating from Kronospan on every recorded occasion.[886]Both Dr Datson and Dr Carruthers had also undertaken analyses of the complaints data in their respective reports.[887]Dr Datson had undertaken a review of the complaints data in section 7.6 of his report. He noted that of the 475 dust complaints 165 were associated with specific events on site (principally unplanned emissions), whereas the remainder were either related to log-yard emissions or not specifically identified.[888]He noted that there were only two months within the period January 2011 to June 2018 where there were elevated complaints for non-event dust complaints, August 2016 being associated with high winds and warm dry weather) and May 2018 (being associated with excessive dust during commissioning of the new silos). He noted in his table 7.10 that there was no strong geographical bias to the non-event complaints, with the majority (145) in the east but significant numbers in the south (96), south-east (126) and north-east (85) as well. This does not support Ms Wilson’s theory that the majority of such complaints are related to log-yard emissions which principally impact the East 1 and North-East areas of Chirk.[889]He noted that there were also only two months within the same period with elevated complaints in relation to unplanned emissions, December 2012 (82 complaints) and September 2017 (35 complaints). These account for all but 48 of the 165 specific events complaints. His table 7.9 demonstrates how it is impossible, based on the complaints data, to identify any regular pattern of significant numbers of complaints following unplanned emissions events over the relevant claim period.[890]He did however also note some factors which provide some support for the objectivity of the complaints data. Thus, he noted that in some parts of Chirk (particularly the north-east and to a lesser extent the east), but not others (south-eastern and south), there was some correspondence between higher dust deposition levels and complaints. He also noted from the wind directional data some correspondence between winds from the west and south and higher complaints and dust deposition levels.[891]In his report Dr Carruthers had noted that of the 469 dust complaints he recorded 118 were associated with planned emissions or unplanned emissions, occurring over 19 days, whereas the remaining 351 complaints were associated with log-yard emissions, unidentified sources or were classed as unjustified.[892]He also noted (in table 6) that, of the residential complaints, complaints were made only 14.5% of the time when wind was recorded from the west, which was little different to the percentage when wind was recorded from the north (12.8%), and the percentages in relation to winds from the east (9%) and south (6.5%) were also not negligible. This, as he said, does not indicate a strong correlation between wind blowing from the Kronospan site and the likelihood of complaints. He also (fig. 12) found no correlation between complaints and wind speed. These findings contradict Ms Wilson’s suggestion of a clear correlation between complaints and wind from Kronospan or – which is relevant to the next section – between high wind speeds, including winds from the west, where Ms Wilson believed they would have whipped up dust from the exposed sources in the log-yard prior to the improvement works undertaken by Kronospan.[893]Kronospan also note that there was a marked increase in the number of complaints in the 30 months after June 2016, being the approximate date when Hugh James first became involved (418 complaints), compared to the 30 month period immediately before (only 197 complaints).[894]I accept of course that most people do not complain all the time, and some people tend not to complain at all. Nonetheless in my judgment Ms Wilson’s essential conclusions as summarised at the beginning of this section are not made out on an analysis of the evidence.[895]I do accept that Kronospan’s RHRs provide a solid basis for a general finding that a reasonable number of these complaints were accepted on investigation as genuine and on balance attributable to dust emissions from Kronospan.[896]Nonetheless, in my view Ms Wilson has not sufficiently taken into account when considering the actual significance of this data:(a) the high numbers of complaints from one or more unplanned emissions events;(b) the high number of repeat complaints;(c) the risk that a number of such complaints are either unjustified, possibly to obtain car wash vouchers free of charge, or – more likely in my view - made by persons who have become unduly sensitive to dust emissions or otherwise pre-disposed to complain due to perceived health risks from dust emissions from Kronospan;(d) the wide geographical spread of complaints, which appears to be contrary to her conclusions that dust emissions from Kronospan will have a different impact in different places; and(e) the relatively limited number of complaints when compared with the total number of households in Chirk and the duration of the period in question.[897]Overall, insofar as Ms Wilson is using this complaints data to demonstrate that the frisbee data and the dustdisc data does not fully capture the reality of the nature and extent of the dust deposition in Chirk over the relevant claim period, I do not accept that it supports that conclusion.[898]As I have already said, I do accept that if one compares the complaints data with the frisbee 2016/17 data there is a correlation between elevated dust complaints in August 2016, when the weather data refers to persistent high winds and warm dry weather, and the frisbee 2016/17 data, which showed high readings at all three locations in the four week period commencing 4.8.16. However, that does not seem to me to demonstrate that significant reliance can be placed on the complaints data as a whole in the absence of the detailed and careful cross-reference between reliable sampling and detailed complaints data such as is envisaged by the NRW guidance referred to above.[899]In their closing submissions the Claimants’ counsel contended (paragraph 44-45) that the dustdiscs were not capable of detecting dust emissions of the kind involved in this case. They give the example of the process emission of 13.9.17 which obviously occurred, was plainly significant, and gave rise to 35 separate complaints, mostly in the East 2 and East 3 areas. They note that nothing out of the ordinary was detected by the dustdiscs in the 2 week period within which this incident occurred.[900]They suggest that this is not necessarily surprising, because the impact of a one day emission event may well not be picked up due to the sampling process only providing an average of the two or four week period of sampling.[901]I accept this as a valid point. However, it must still be noted that even this testing period will pick up any extended period of high dust deposition rates within this sampling period. It follows, as the inevitable corollary of the Claimants’ submission, that the lack of a high overall daily average in the 14 day period within which the postulated unplanned emissions or log-yard emissions event occurred demonstrates that they could only have been an isolated event or series of events within this period. Put pithily, if there had been a week of very high dust emission events within a two week period, this would still have resulted in a significant overall average daily rate.[902]In the event, this point only really assists the Claimants if there is other evidence on which they can rely to make good their factual case that this is what was happening on a regular basis. However, in the absence of an analysis which proves that this is the case from the complaints data which, as I have demonstrated, has not been undertaken, it is essentially no more than speculation.[903]I turn now to Ms Wilson’s analysis of complaints data and wind directional / speed data which she believed did provide evidence of a connection. The complaints data and the wind data used by Ms Wilson[904]Ms Wilson had undertaken an analysis of complaints against wind speeds exceeding 10 m/s for more than one hour from the direction of Kronospan and concluded that there was a very strong correlation between the two at times of dry weather in relation to all of the residential areas of Chirk.[905]It was unfortunate that in her report and analysis (at Appendix 6) she had failed to make it clear that her analysis was not limited to consecutive hours, which was the impression gained from her report. That was particularly so because, on the basis of this mistaken understanding, Kronospan’s team had produced an alternative analysis. Some other errors in her report were identified in cross-examination. Nonetheless, it appears that her analysis, once these confusions and errors were identified, was soundly based on a figures-as-figures approach. However, the crucial question remained as to what it actually established.[906]In cross-examination Ms Wilson accepted that the analysis only showed whether it was more likely that there would be a complaint when the wind was blowing in a particular direction than if not (i.e. whether or not a statistical difference was established). It did not show whether, or establish that, the extent or, thus, significance, of any statistical or causative correlation between wind direction and/or wind speed on the one hand and complaints on the other.[907]Thus, she accepted that in relation to the example she had given of Lodgevale Park, the same correlation was established when wind was blowing from the north-east (when any dust could not possibly have come from Kronospan) as when it was blowing from the south-west (when it might well have done). She accepted that, despite the apparent wording in paragraph 2.11 and 2.12 of her report, in fact there was no basis for saying that complaints days were more frequent than no complaints days when the wind was from the direction of Kronospan.[908]As stated, Dr Datson had noted some evidence of some correlation between complaints and wind direction in some areas, but only in general terms.[909]This was the subject of consideration and disagreement as between Ms Wilson and Dr Carruthers, who had also looked at this question. Unlike Ms Wilson, Dr Carruthers had investigated whether there was any correlation between wind speed and complaints across all wind speeds, from the lowest to the highest, whereas Ms Wilson had only considered whether there was any correlation in relation to high wind speeds. As Dr Carruthers observed, this was because she had assumed that dust was being blown from the exposed dust sources in the log-yard during high winds and therefore, he suggested, had conducted the investigation on the assumption that it would demonstrate what she had already assumed was the case. His evidence however was that there was no increase in the frequency of complaints in line with increases in wind speed. He described this as surprising, but nonetheless appeared to demonstrate that “the wood yard (exposed) sources are not associated with complaints in a significant way”.[910]Ms Wilson suggested that her analysis was more detailed, because she had taken specific locations and hour by hour wind data. Dr Carruthers was prepared to accept that he could have undertaken a more detailed analysis, but maintained that his analysis was perfectly good enough to see whether or not there was a connection between wind speed and directions on the one hand and complaints on the other, so as to see whether complaints could be linked with higher winds from the Kronospan site and, thus, with dust emissions from the log-yard. As stated, on that basis he had concluded that no connection was demonstrated.[911]Ms Wilson also identified one period where complaints associated with wind from the north-east transpired, on examination, to be complaints from locations to the south and south-west of the site which, therefore, could be considered consistent with her opinion. Dr Carruthers agreed, whilst noting that this was not the case with all complaints where the wind was not blowing from the direction of the Kronospan site.[912]It seems to me that in the end Ms Wilson’s analysis proved relatively little of really significant probative value. Ms Wilson accepted that she had started the exercise to see whether or not it would reveal anything of significance. In the end, it did not reveal a significant statistical correlation, but Ms Wilson had included it anyway, without making absolutely clear the limitations of what it did reveal.[913]In her conclusion on this section in her report she had said that “in the absence of a comprehensive monitoring survey covering the full claim period and area, the complaints data provides the most reliable evidence of dust nuisance during this time”, albeit she accepted that it did not provide a perfect picture, given the range of factors which may explain why people may or may not complain. She relied on the analysis of complaints against high wind speeds from Kronospan and considers that “this is consistent with settled dust from stockpiles or roofs being resuspended by strong winds”.[914]In my judgment the evidence on which she relies is too weak, both in terms of what can sensibly be gained from the analysis of complaints and the extent of any statistically significant correlation between complaints and wind speed and direction, to establish a strong link between complaints and dust emissions from the Kronospan site, whether at all or in relation to the specific link between complaints and log-yard emissions to which she refers. Other sources of dust soiling[915]Ms Wilson and Dr Datson also considered the evidence as to the sources of dust soiling from Kronospan and elsewhere. They agreed that there were other sources that would contribute to dust soiling at all locations, but did not agree as the scale, quantity, nature and sources of the dust, nor how the dust characterisation data demonstrated the scale and nature of other dust sources in the locality.[916]These other dust sources would include other organic sources of dust from vegetation, including wood fibres from trees and shrubs which are of particular relevance given that they would be chemically indistinguishable from those emitted from Kronospan. Mr Kent was right to take Ms Wilson to task in cross-examination for not even mentioning these other sources of dust or, additionally, for failing to refer to dust generated from road traffic, including woody material falling from HGVs serving Kronospan and then crushed into smaller fibres by other traffic and re-suspended, given her observations that dust deposition was high at locations on or adjacent to Holyhead Road.[917]Ms Wilson placed reliance on the correspondence between the type of material leading to complaints and that emitted from Kronospan, whereas Dr Datson considered that such a conclusion was subjective.[918]It is clear from the sampling tests as were undertaken in relation to the CELG samples that a significant proportion of the dust was either from mineral particles and, thus, most probably road and road traffic related, or from organic material which must, given the well-vegetated character of most of residential Chirk, have included a significant proportion of non-Kronospan vegetative particles.[919]It seems to me to be a significant weakness in Ms Wilson’s analysis that she had not recorded or considered the impact of these other significant sources of dust affecting the Claimants’ property.[920]In contrast, Dr Datson had done so in section 7.7.1 of his report by reference to the samples taken by Dr Acton, to which I referred in my review of his evidence. He had noted that all of the samples contained a considerable amount (at least 65%) of material which could not have been wood fibres from Kronospan, and even the remaining organic fibres could have come from other sources, such as plants and insects, as from Kronospan. His view was that the organic fibres in the samples from the site entrance and the Co-op appeared similar to the site control samples, whereas those from Crogen and Charles Street appeared different in appearance. This is obviously relevant to the important question as to what extent the significant dust emission events suffered by the Claimants are principally due to Kronospan. In general terms, it would be difficult on the basis of this analysis to conclude that more than around one third were due to Kronospan.[921]This however is a convenient point to turn to the dust characterisation evidence as a matter considered by and debated between Dr Anguilano and Dr Datson. L. The expert evidence on dust characterisation[922]The joint statement runs to nine pages. It addresses primarily the interpretation of the data from the SEM-EDX analysis of samples undertaken by LPD Lab Services, whose principal - Dr Romani - had undertaken much of the work involved in producing this initial analysis. Where in this section I refer to sample data I am referring to the data from this SEM-EDX analysis.[923]LPD Lab Services undertook an analysis of control and field samples provided by Dr Gibson (as the Claimants’ then expert in relation to dust characterisation) and Dr Datson, on the agreed basis that the interpretation of the sample data was a matter to be addressed by the parties’ respective experts as a matter of expert opinion. Dr Gibson was then replaced by Dr Anguilano as the Claimants’ expert on dust characterisation.[924]The control samples came from various parts of the Kronospan site and the field samples came from the seven locations where the dustdiscs had been placed by Dr Acton, and dated from 2020. The details are described in paragraph 7.7.2 of Dr Datson’s report, including the sheer size of the data set obtained from the SEM images and the EDX analyses and, hence, the need to undertake a filtering process of that data set which, he said, was “underpinned by sound, rational scientific decision-making”.[925]In summary, what LPD did was to produce SEM (scanning electron microscopy) images of the content of the samples. The images are both high magnification and high resolution and the data contained in them can be screened in various ways, thus allowing the expert to gain an idea of the morphology (i.e. the size and shape) of the contents. LPD also produced EDX (electron dispersive X-ray) analysis data of the content of the samples, which provided data as to the elemental (chemical) composition of such content. The experts could then use these two data sources to undertake further analysis to reach conclusions as to the nature of the dust particles captured by the sampling process.[926]Dr Anguilano’s evidence was that the data obtained by LPD and the further screening processes undertaken by Dr Datson were not foolproof, for three principal reasons.[927]The first was that where there were a number of particles in the sample, some of which were next to or above or below each other, especially where some were organic (such as wood fibres, whether from Kronospan or from local vegetation) and others inorganic (such as metal coming from brake discs or rubber crumb coming from tyres), and also where they were of varying sizes, there was a risk that one or more of the particles might be wholly or partially obscured by others and, hence, not identified as a separate particle in the data or, otherwise, not correctly identified.[928]The second was that because the adhesive of the substrate onto which the sample had been laid was carbon-based, a decision had been taken to discard any particle with a carbon content exceeding 70% which, might, therefore exclude wood fibres.[929]The third, and most significant, related to what she identified as the presence of what she identified as long, thin, very fine wood fibres (which she referred to as “fibrils”). Whether or not these fibrils were present represented the most significant disagreement between the two experts. She believed that they were widely present and that they had not been picked up by the screening processes undertaken by Dr Datson, whereas he believed that they were not widely present and that what she had identified as fibrils were simply distortions in the adhesive fixing the dust particles to the underlying substrate.[930]It was common ground between them that it was possible for the adhesive to radiate outwards from some point of damage or weakness, or otherwise to crease or to crack in places. Both experts also accepted that it could be very difficult to distinguish between these features (I shall refer to them collectively as creases) on the one hand and fibrils on the other. This was the subject of cross-examination of both experts, to which I shall refer below.[931]What Dr Anguilano had done, being not satisfied that the statistical screening process which she had embarked upon could be relied upon with complete confidence, was to undertake her own visual examination of each sample. This included those which had a carbon content exceeding 70%, where she believed that she was able to form an opinion whether or not a particle was organic wood by reference to its morphology. In such a case she would then cross-check the elemental composition to confirm that it was a wooden particle and not simply a carbon-based background.[932]Dr Anguilano had not, however, explained this process in her report. Instead, she had simply stated her conclusions in relation to each field sample in a table which did no more than identify in relation to each sample whether or not it contained wood fibres (which, with one exception, they all did) and, if so, into which length and diameter bracket they fell, as well as whether or not they contained one or more of a number of specified mineral or metal particulates (again which, with one exception, they all did).[933]Whilst it is not suggested that she had not undertaken this process, it was a surprise that she had not clearly set out in her report what she had done or why she had done it. She did not explain the statistical screening processes she had embarked upon or at what point, and why, she had abandoned that process in favour of a different process. She did not explain the nature of such morphological examinations as she had undertaken with a view to clarifying how she had established the morphology of the control samples and then applied that to the morphology of the monitoring samples. Nor did she explain the nature of her chemical examination. What she appears to have undertaken was a visual impressionistic analysis, relying upon her own skill and expertise.[934]Whilst that is not objectionable in itself, her failure to explain the process in detail and with clarity, so that it is understandable to anyone reading the report, including to the court to whom it ought to be addressed, does not assist in persuading the court that the expert’s evidence is to be preferred where it is strongly disputed. It also gives rise to a concern that one reason for the change of approach was that the initial results were producing conclusions which were unfavourable to the Claimants’ case and that this, consciously or unconsciously, influenced the decision to abandon the initial process and start afresh with a new one. I immediately make it clear that I do not conclude that Dr Anguilano deliberately decided to start again with the firm intention of producing evidence to support the Claimants’ case, but on balance I do consider that a sympathy for the Claimants has led to an unconscious impetus to find evidence which would support their case.[935]In contrast, Dr Datson had explained in great detail in his report the process which he and his team had undertaken. There were 83 samples taken from the dustdiscs the subject of the monitoring programme, ten control samples taken from the Kronospan site, ten samples from various roadside locations around Chirk, three samples taken from stacks at the Kronospan factory and 20 samples from the baseline sampling locations. Each such sample was analysed at five fields of view (FoV) and EDX analyses were undertaken in relation to each. There was, therefore, a huge amount of data, which it would have been impossible to analyse by visual inspection alone.[936]Accordingly, his team had applied a morphological statistical screening process, using software, to screen out the material which did not correspond with the key attributes of the particles found within the control samples, including the size of the particles where they were much larger than those collected during the sampling process. This analysis, which was identified as a “cautious, rigorous morphological analysis” with a “very conservative [size] filter”, revealed that “at most only around 5.5% of all particles examined corresponded with the recognised control samples from within the Kronospan facility”.[937]In his summary Dr Datson had described this analysis as having demonstrated that “only a very small proportion (less than 1 in 40 at most) of the particles found in the off-site samples have physical properties (size and shape) similar to those within the Kronospan facility, but also that even of these not all can be considered to have arisen from Kronospan due to their elemental composition or visual properties”.[938]In his oral closing submissions, responding to criticism in the Claimants’ closing submissions as to the lack of explanation of the steps leading to this conclusion, Mr Kent referred to the fact that the actual overall percentage derived from the tables included in the report was only around 2%, similar to but less than the 1 in 40 (2.5%) figure given by Dr Datson, so that the basis for the figure was discernible from the report itself. This process was criticised by the Claimants as giving evidence which did not appear in Dr Datson’s report. I do not accept this. The calculation follows from the information in the tables in the report even though, as I accept, Dr Datson did not – and ought sensibly to have – spelled out in his report how he had reached the “less than 1 in 40 at most” figure.[939]A further elemental composition screening process was then applied to screen out non-wood material. It was not possible to identify elements which could clearly differentiate between wood material from the Kronospan control samples and off-site samples. The total number of particles was identified in three tables in his report[940]At this point the FoVs were also inspected visually to identify particles of sufficient interest to undergo elemental analysis. One of his colleagues had then physically examined those samples which had not been screened out by that process.[941]On completion of that process only 29 particles (0.5% of the original cohort) remained from all of the non-Kronospan samples. Even so, this did not mean that they necessarily came from Kronospan, only that they had the same essential characteristics which had been identified as belonging to the Kronospan control samples in their shape and their chemistry, which would also include numerous sources of other organic wood material.[942]Of these, only six were linked to the Kronospan samples by visual examination to identify visual similarities. In his summary Dr Datson had referred to this as “about 1 in 5”. Again, in his oral closing submissions, responding again to criticism in the Claimants’ closing submissions as to the lack of explanation of this process, Mr Kent had said that if one added up the total of the particles not screened out that produced a total of 173 and that the 29 particles left after the next stage process amounted to one in six. Again, this was criticised as giving evidence. Again, I conclude that what Mr Kent was doing was undertaking the calculation which was implicit in the information in the report itself, although again I accept that if this had been spelled out in the report it would have been better and led to a more precise figure.[943]The end result was that Dr Datson stated in his report that he believed that only 0.1% of the particles analysed “were identified as representative of material from the Kronospan operation”, whereas the remainder “will have originated from a range of natural and anthropogenic sources in the general locality and cannot be said to have originated from Kronospan”. Again, it can be seen that the 0.1% figure comes from applying the rounded ratio derived from 6 of 29 samples to the figures produced from the previous two ratios. Again, this is implicit from the figures in the report, even though a more detailed and more precise figure would have been better.[944]He was cross-examined on the basis that this screening had been undertaken by reference to the “clean” control samples from the Kronospan, emanating from the stockpiles, and not including the samples collected from the site roadways because they were “much more heterogeneous” and may have come from off-site. However, given that material on the roadway may well have included dust particles brought in by incoming vehicles, that does not seem to me to be unreasonable in the context of the task which Dr Datson was engaged in. He was criticised for not undertaking a cross-check, by running the morphological, particle size and elemental screening processes against the non-clean site road Kronospan samples, to check that off-site samples containing the same material was not being wrongly screened out by this process. If, as appears likely from the report, this had not been done (although Dr Datson did not know for sure) this is a fair criticism. However it is not a point which had been made before trial, so as to allow Dr Datson to consider this criticism and, if appropriate, the opportunity to explain why not or to do so prior to trial.[945]It does, however, illustrate that what Dr Datson was doing was seeking to identify a unique signature of Kronospan dust which, perforce, excluded this source of heterogeneous dust. The consequence, as was put to him and as he agreed, was that whilst he could, if he was right, state that only 0.1% of the dust particles analysed could with confidence be shown to have the same properties as those found in these “clean” control samples from Kronospan, it by no means followed that he could also say with confidence that the remaining 99.9% did not come from Kronospan.[946]It follows, to be clear, that he could not say, and was not saying, that only 0.1% of the dust particles identified in the field samples were from Kronospan and the remainder were from elsewhere. He was only saying that 0.1% could confidently be stated to have the same properties (as he said in cross-examination, the same “fingerprint”) as that found in the clean Kronospan control samples. It follows that the weight to be applied to this exercise, even on Dr Datson’s case, is less than it would be if all of the characteristics found in all of the Kronospan control samples had been brought into the screening process.[947]Nonetheless, given the sources of dust particles from Kronospan, it is reasonable to conclude that if the dust deposited in the off-site samples had come predominantly from Kronospan it would have contained more than only 0.1% of material which could be linked to the clean control samples.[948]In cross-examination on this point Mr Henderson suggested to him that the very fact that this figure was so low suggested that something had gone wrong with the sampling analysis he had undertaken. That, however, of course assumes that one would have expected to see the outcome which the Claimants contend for. Again, I am not aware that a cross-check has been undertaken against these samples to see whether this assumption can be verified from other objective evidence.[949]Dr Anguilano and Dr Datson acknowledged in their joint statement that they had applied different analytical methods to the interpretation of the sample data. They also agreed that in the circumstances there was scope for reasonable disagreement between them in relation to the opinions they reached.[950]Nonetheless, the parties and the court are left with the fact that they were unable to agree whether or not a significant proportion of the sample SEM data images did or did not identify wood fibres such as might have come from Kronospan. Dr Anguilano considered that they did, whereas Dr Datson considered that they did not. Dr Datson also believed that, even if they did, they could simply be identifying other fibrous/organic matter which did not emanate from Kronospan. The experts agreed that a degree of uncertainty remained in relation to the identification of such objects.[951]In addition to her identification of what she believed to be wood fibrils, Dr Anguilano also considered that the presence of these fibrils was consistent with what she would have expected, because they were likely to be carried further away from their source than larger and heavier fibres and, hence, likely to be found at the more distant sample locations. Dr Datson disagreed, saying that in his opinion it was difficult to see how these very small, long thin fibrils could have travelled so far from the site.[952]As against that, as was put to Dr Datson in cross-examination, if the overwhelming evidence of the lead Claimants and their witnesses was that they were affected by dust which they could identify as from Kronospan, and some had produced photographs of such dust which Mr Baker and others had accepted appeared to come from Kronospan on investigation, it would be surprising if the samples did not reveal the presence of dust from Kronospan.[953]However, for that proposition to hold good in specific, as opposed to general, terms it would have been necessary to consider evidence of, for example, the mass of the dust deposited in the sample, the %EAC and %AAC readings, the physical appearance of the sample, and any RHRs or other contemporaneous evidence which might indicate whether there were complaints of Kronospan dust in the vicinity of the sample location at that time which were regarded as genuine on investigation.[954]Dr Anguilano suggested that approximately 80-90% of the samples she had examined included what she considered to be wooden fibrils as well as steels and silicates. The latter were said to be relevant because steel and silicates were also found in the Kronospan control samples. However, in cross-examination she accepted that steels and silicates would have been widely found in sources of dust which might otherwise have been expected to be present in Chirk. It follows, in my judgment, that this separate point added little to her disputed identification of the fibrils.[955]She accepted in cross-examination that she had adopted the approach of including each of the samples she had examined as a positive result even where there was only one particle in it which she had identified as a wooden fibril. Whilst this was logical, insofar as the fibril was consistent with the presence of something being carried from Kronospan to the sample location, it was – as she agreed - not conclusive that something had in fact been carried from Kronospan because, as she agreed, it was not possible to be conclusive that the fibrils had come from Kronospan. That was because there was nothing unique in the elemental composition of the various types of wood products in the Kronospan control samples or in the fibrils to be able to assert with confidence that they must be related to each other.[956]In short, even accepting her evidence as to the presence of these wood fibrils, that was not evidence that they had come from Kronospan or that the dust found in these field samples contained anything more than the most minor of wood content. Insofar as the contrary was suggested in the Claimants’ closing submissions I do not accept it.[957]In terms of the correctness of her identification, a number of points were raised in cross-examination of both witnesses.[958]She identified in examination-in-chief an example of a slide where she said one could see not only radial marks from the underlying sticky pad but also “ghost” elongated fibres with small mineral particulate debris on top of them.[959]In his examination-in-chief Dr Datson explained that the adhesive was liable to deform, distort or rupture when the covering sheet was removed to inspect the dust particles, which could produce a variety of different types of crack or crease, whether in a radial shape of otherwise. This evidence was consistent with Dr Romani’s report, where he stated that there had been significant difficulties in removing the sheet applied to the top of the adhesive layer without also removing the particles and, in order to deal with this problem, he had found it necessary to freeze the samples first.[960]Dr Anguilano also identified in examination-in-chief an example of a slide where she said she could identify what she also described as a fibril running in a different direction to the radial marks on the sticky pad. She accepted that it was difficult to interpret these samples and distinguish between the two but said that she could do so because she had experience of doing this.[961]She was taken in cross-examination to one which had been considered in the joint statement (sample 82334), where what were described as pale elongated features could be seen, which Dr Anguilano had identified as long thin wood fibres with a length of over 400 µm and a width of less than 10 µm. In examination-in-chief Dr Datson was very definite that they were cracks in the adhesive, identifying what he said was clearly distortion in the adhesive in the images as well. It is very difficult to my untutored eye to see whether what Dr Anguilano identifies as fibrils are physically separate and distinct from the underlying creases in the substrate. Whilst they have a much more definite appearance than the underlying creases, they do appear to connect to these creases. I agree with Dr Datson that this tends to suggest that they are part of that feature rather than a separate and distinct fibril.[962]It increasingly seemed to me, as Dr Anguilano was cross-examined in relation to a number of these samples, that there was considerable room for debate and reasonable disagreement either way. By way of example I refer to sample 79546, where the middle photograph showed what might appear to be fibrils similar to others above and below, but where there was also another feature which looked like a breakage of the substrate.[963]It was suggested that this, and the further processes described by Dr Romani, would explain why the cracking to the substrate had occurred and also, therefore, why what Dr Anguilano had identified as fibrils were simply instances of more cracking than she had experience of seeing. That seems to me to be a distinct possibility.[964]As against that, it was submitted that there was other evidence, in the form of the optical microscopy analyses carried out by DustScan in January 2018 and May 2018 from samples collected from dustdiscs in four locations, and in October 2022 of the dust sample collected by Mr John Jones referred to above in my consideration of his evidence. It was suggested to Dr Datson that this evidence, indicating as it did substantial qualities of organic fibres and brown organic material, contradicted his analysis. Dr Datson disputed this, saying that it could not be said that this material originated from Kronospan any more than from natural sources. I agree with this.[965]However, in examination-in-chief Dr Anguilano suggested that one of the fibres on top of one of the black fibres in one of the images taken from analysis of the John Jones sample appeared to have a similar appearance and size to the fibrils that she had noted in the SEM images. Since I accept Mr Jones’ evidence that this was a genuine sample from an occasion when there probably was an unplanned emission from Kronospan, I accept that this is an indication that it is possible for fibrils to be found in distant samples.[966]Nonetheless, standing back and looking at the evidence overall, in my view Dr Anguilano’s evidence was of a very different nature to any of the other evidence in the case, in that she was saying that what she had identified as wood fibres were, in fact, a subtype of the wood fibres, namely extremely fine and small wood fibres known as fibrils. There has been no analysis by her or anyone else to show that these could have been or did form a constituent part of the dust particles the subject of the complaints made by the Claimants.[967]Whilst it is possible that these fibrils might, collectively, and in what presumably must have been in very significant quantities given their size, have the appearance of very fine sawdust, there is no positive evidence to that effect. Dr Anguilano did not suggest that she undertook a quantitative analysis of the samples which showed, putting it in the vernacular, that the samples were stuffed full of these fibrils which could, on unaided visual examination, have the appearance of sawdust, in the same way as the samples taken from John Jones had a very large number of larger sized fibres consistent with their having been taken from dust fibres which had been collected together and bagged up.[968]These fibrils clearly could not be the larger fibres also identified by the Claimants in their evidence. There is no evidence from the samples which she has examined that they also included any significant quantity of the larger sized fibres which could be consistent on visual analysis with wooden dust particles emanating from Kronospan. It was suggested to Dr Datson in cross-examination that these larger fibres may have been present but had been filtered out through the sieving process undertaken by LPD. He did not agree, given the size and composition of the shaker sieve, and there is no obvious basis for saying that he is wrong about that.[969]In short, even if Dr Anguilano is right on this very fine point of identification of fibrils as opposed to creases I am not convinced that this evidence by itself provides much assistance to the Claimants’ overall case.[970]It was also noted in her cross-examination that she had not provided any photographic or other evidence to show that these wooden fibrils had separated from the larger wood fibres seen in any of the Kronospan control samples or, indeed, other samples of similar such fibres. She suggested that sample 02A showed larger fibres with very small fibrils attached to them which, she said, would be detached and carried further by the wind than the larger fibrils. However, Dr Anguilano was unable to provide evidence, either from literature or from her own professional experience, as to the extent to which this can happen or does happen and, in particular, whether it could explain why there was virtually no evidence of larger fibres in these samples. She said in cross-examination that she had done some analysis on this subject on other sites in London, but she had not provided or referred to any materials or details in her report or in the joint statement. She also accepted that she was not able to give expert evidence about whether such fibrils could be carried, for example 100 - 200m from the Kronospan site to one of the sample sites.[971]Nor was it something which Ms Wilson had given evidence about in her report, other than to observe in passing (at paragraph 11.5) that it could have been potentially difficult to isolate from the control samples from Kronospan the “specific finer particles that would travel far enough to reach the dust deposition gauges in the community” and also that “there may also be issues associated with the collection efficiency of the deposition gauges that would influence the proportion of low density material collected”.[972]Although she had also described examples of how some such low density wood fibres might not be collected by the dustdiscs, this evidence is, with respect nowhere near sufficient to cover the questions which arise, as discussed above, as to how Dr Anguilano’s opinion actually provides support for the Claimants’ essential case in relation to evidence that the samples from the dustdiscs contained a substantial proportion of wood fibres which were likely to have come from Kronospan.[973]It is true that Dr Datson had stated in his report and accepted in his evidence that “dust propagation depends on particle size, wind energy and disturbance activities. Large dust particles generally travel shorter distances than small particles”. However that point, which is plainly not contentious, is a different point to that identified above, which is whether it is common for small fibrils to become detached from larger fibres and to be carried significantly further than the larger fibres and, if so, how that proposition is consistent with the Claimants’ essential case that the dust they experienced was primarily composed of dust particles which had the appearance of emanating from Kronospan. As to the former, Dr Datson agreed that it was possible but remained sceptical, having looked – he said - at the reference materials. The latter was not the subject of any close attention either in the written evidence or at trial.[974]The essential point I return to is that Dr Anguilano has come up with her fibrils analysis and one of the points she has to accommodate in her evidence is the absence of any larger fibres. Her first explanation is that they dropped out of the air sooner than the fibrils and, hence, did not reach the sample locations. If, however, that is the case, they would not have reached the Claimants’ properties either. Her second explanation is that they did reach the sample locations but were removed by the sieving process. However, this has not been proved by reference to the process actually undertaken by LPD or by experimentation and is, essentially, speculative. In contrast, it seems to me, Dr Datson’s explanation, that neither wood fibres or fibrils were present in any substantial quantities, has the undoubted merit of simplicity and consistency.[975]Dr Datson was, however, prepared to agree that some larger fibres may not have been identified as such because of their irregular shape. That is obviously a possibility, but it clearly would not explain the massive gulf between Dr Anguilano’s conclusion and Dr Datson’s conclusion. The same is true of the risk of false identification in relation to the chemical composition data which, again, he accepted was a problem.[976]In cross-examination, Dr Anguilano was taken to one sample, 82330, which appeared to show what may have been a larger fibre with smaller fibres joined to it, but there were also other features similar to the fibrils which did not appear to have any connection to the larger fibre.[977]In examination-in-chief Dr Datson referred to his report where he noted an apparent difference between the appearance of the organic fibres in the samples from Crogen and Charles Street compared to the sample from the site entrance which, in his view, indicated that the former were from vegetation rather than from the Kronospan site. He accepted however in cross-examination that this was essentially a speculative opinion.[978]In cross-examination he was also taken to sections of his report in which he had made clear that he was not confident that SEM-EDX analysis was the most appropriate method to use in this case, given his knowledge of the sampling media used. However, he maintained his position that it was still better to undertake a statistical screening process rather than a visual examination, in order to remove the uncertainties associated with the exercise of professional judgment.[979]I do accept that Dr Anguilano has hands-on experience in materials characterisation using SEM-EDX analysis data, both in her academic role and also in her consulting role, and that she had access to microscopes to enable her to examine the samples direct which Dr Datson did not have. I also accept that she, unlike Dr Datson, had physically examined all of the visual images, whereas he had relied on his colleagues and on his examination of the images contained within Dr Anguilano’s report.[980]However, in the end, I am not persuaded that I am able to prefer her expertise to that of Dr Datson on the key point at issue between them, given that he had expertise and experience in working with these DustScan materials, including the problems associated with the creasing of the adhesive, which she did not.[981]For all of the reasons given above, I prefer Dr Datson’s evidence on the key issues than that of Dr Anguilano and, hence, I am not satisfied that there were these fibrils in a high proportion of the samples or in any event that this is sufficient in itself to justify a conclusion that the samples also contained fibres which could have emanated from Kronospan or been the source of the dust complaints made against Kronospan.[982]The converse of this, however, is that Dr Datson’s analysis does not get Kronospan very far as positive evidence in its own right, given the limitations of what his 0.1% figure actually signified.[983]In the end it is probably the case that this aspect of the expert evidence has only succeeded in proving a negative, i.e. that there is no hard scientific evidence from this dust characterisation exercise which links the dust in the samples from the dustdisc sampling exercise with fibres from Kronospan. M. The expert evidence on dust dispersion modelling[984]The experts giving evidence on this issue were Ms Wilson for the Claimants and Dr Carruthers for Kronospan. Their joint statement explained that the purpose of the modelling evidence was to assist the Court in deciding the distance beyond which the Claimants' complaints of nuisance are unlikely to have been of such a degree as to constitute an actionable nuisance. They considered eight separate matters, namely:(1) metrics for dust nuisance;(2) conclusions drawn from analysis of complaints and weather and air pollution data;(3) data used in the model;(4) modelling method used;(5) use of model adjustments using CELG monitoring data;(6) conclusions drawn from the modelled data, including: (i) sources of dust; (ii) areas most to least affected and the distance beyond which the claimants’ complaints of nuisance are unlikely to have been such a degree to constitute an actionable nuisance;(7) limitations to the model; and(8) relevance to the dust monitoring evidence. Metrics for dust nuisance.[985]The experts agreed that the usual approach is to model mass of dust deposited and that there are problems in converting this to dust soiling metrics such as %EAC or %AAC. They had also both used the threshold deposition rate of 200 mg/m2/day for four-weekly averages. Conclusions drawn from analysis of complaints, and weather and air pollution data.[986]This was the major area of disagreement between the experts. In this case the disagreement was as to the method of analysis employed by each expert.[987]Ms Wilson concluded, based on her analysis, that there is a “strong statistically demonstrable difference between the likelihood of complaints or no complaints when there are a high proportion of winds blowing from Kronospan towards all areas of Chirk”.[988]Dr Carruthers concluded, based on his analysis, that there is no significant correlation between the number of complaints and wind speed and, hence, no basis for a conclusion that the log-yard is associated with complaints.[989]For the reasons given above in relation to the dust monitoring evidence, as well as those given by Dr Carruthers in his detailed analysis in his report, I am not persuaded by Ms Wilson’s analysis as to the linkage between complaints and wind direction. Data used in the model.[990]The data was taken from sources agreed between Dr Carruthers and the Claimants’ previous expert, Mr Gibson. Three sources of emissions were considered:(i) wood dust from the log-yard;(ii) unplanned emissions; and(iii) normal process emissions in accordance with environmental permits.[991]The first source was the most controversial. It had been modelled as representing the great majority (573,000 tonnes) of the total of 645,000 tonnes over the whole period.[992]Dr Carruthers considered that the unadjusted model, based on the use of the agreed US EPA AP42 methodology which had been used to produce this figure, if anything overestimated the emissions from the log-yard. He relied on a number of reasons to reach this conclusion, including that no account had been taken on the impact on dust emissions of:(a) the tree barrier around the site or the wood barriers around the storage piles;(b) the additional moistening effect of rainfall and dust suppression measures . He also noted that the US EPA methodology had already been amended in relation to the log-yard emissions by taking hourly wind speed rates rather than the daily wind speed rates, and that this had resulted in a four-fold increase in itself.[993]In contrast, Ms Wilson considered that the number of different factors also not taken into account meant that the only appropriate approach was to use the US EPA methodology, whilst also proceeding to make significant adjustments to the input data once she had seen the results, as discussed in more detail below.[994]I am satisfied that Dr Carruthers was right to observe that there were these factors pulling in the opposite direction from those identified by Ms Wilson. However, in the end this debate only illustrated the significant areas of uncertainty associated with the whole dust dispersion modelling exercise in a retrospective litigation exercise such as the instant. As is often the case, if Master Fontaine had known what I now know about the limitations and uncertainties associated with this exercise I doubt whether she would have given permission to the parties to rely upon expert dust dispersion modelling evidence. Modelling method used.[995]Both experts had used the same modelling method, known as ADMS, which is short for Atmospheric Dispersion Modelling System. This is a software package, developed by Dr Carruthers, which calculates the dispersion of material released into the atmosphere, taking account of prevailing meteorological conditions, source characteristics, buildings and topographical (terrain) features. Use of model adjustments using CELG monitoring data.[996]Before addressing the issue of adjustments it should be recorded that the experts agreed that without the model adjustments the model results produced by each were slightly different, but not by so much as to make any material difference to the conclusions to be drawn from them. In the circumstances, and given that it was the adjustments made by Ms Wilson using the CELG data which led to the significant difference in the ultimate outcome, it is unnecessary to investigate or to determine the reason for the minor differences between the two in relation to the model results.[997]I should also record that there is no objection in principle to the approach of model adjustment, i.e. using other data to adjust the result of the modelling based on the selected method. The question is whether it is appropriate in this case.[998]Ms Wilson’s approach, as summarised in the joint statement, was that the agreed source emissions were only ever a pragmatic estimate, subject to uncertainties and unknowns, which also therefore affected the model results. In the circumstances, in her view, if the model results did not reflect the contemporaneous observations then it was appropriate to adjust them.[999]Dr Carruthers’ approach, as summarised in the joint statement, was that it was inappropriate in this case to make any adjustments from the previously agreed source data for three reasons:(a) first, the agreed source emissions data were the best estimate available and should not be departed from without strong evidence, which had not been produced;(b) second, the frisbee 2016/17 data was of unknown and questionable quality;(c) third, since Dr Datson had demonstrated via the dust characterisation exercise that only a small fraction of the material deposited could be assigned to Kronospan, then Ms Wilson’s adjustments, which assumed that all depositions above the baseline depositions emanated from Kronospan, could not be justified.[1000]In cross-examination he accepted that his second reason (the reliability of the frisbee 2016/17 data) was largely based on Dr Datson’s opinions in relation to dust monitoring. He also accepted that he did not have expertise to offer his own opinion on that issue, although he did say that he was able to and had reached his own conclusion that the frisbee 2016/17 data was inconsistent with the wind direction data .[1001]It follows that his second and third reasons stand or fall with my conclusions about the expert evidence on dust monitoring and dust characterisation. As stated and explained above, on balance I do not accept that the frisbee 2016/17 data can be regarded as justifying the conclusions which Ms Wilson had reached in reliance upon her assessment of that data. Nor do I accept that Ms Wilson has demonstrated that anything more than a proportion (less than 50%) of the dust found in the samples could be organic fibres which could come from Kronospan. These conclusions provide strong support for Dr Carruthers’ opinion on these points, albeit that I accept that insofar as he has regarded the frisbee 2016/17 data as completely unreliable, or has accepted that Dr Datson’s dust characterisation exercise has demonstrated that no more than 0.1% of the dust found in the samples could have come from Kronospan he is in error.[1002]The most substantial ground of attack on his evidence was that his modelled results identified only 10% at most of the actual dust deposition figures recorded by the frisbee 2016/17 data. One specific illustration of the size of the discrepancy was that in the first frisbee sampling period of 4.8.16 to 6.9.16 a dust deposition figure of 454 mg/m2/day was measured at Lodgevale Park, whereas the modelling produced a very small figure of only 2.9 mg/m2/day (less than 7%). In addition, Ms Wilson made the point that if the frisbee only collected around 50% of actual deposited dust, then the discrepancy was even more marked.[1003]It was put to him in cross-examination that this was extremely surprising and indicated that the dust dispersion modelling assumptions must be flawed, given that Lodgevale Park was to the north-east of the Kronospan site, especially the log-yard, and hence likely to be affected by dust emissions from the Kronospan site during prevailing south-west winds. It was also put to him that it was inconsistent with the RHRs for this period, which identified a number of complaints on 4.8.16 and afterwards which Kronospan’s investigators had recorded as either actual or suspected pre-production or log-yard dust emissions.[1004]Dr Carruthers agreed that complaints about dust emissions would be very unlikely if the actual dust deposition level was only 2.9 mg/m2/day. Whilst he made the point that one had to be careful about assuming that a low monthly average translated to an equivalent low daily rate on specific dates, he had to accept that the difference was so large that it could not explain the difference between what was modelled and the frisbee result for that sample in that location.[1005]It is clearly right that this was a good example of the modelled data appearing far lower than might be expected based on the complaints data. However, as against that, it must also be said that if the actual daily dust deposition rate was as high as 454 and 490 as recorded in Lodgevale Park in the eight week period from 4.8.16 to 6.10.16, it is also surprising that there were only (it appears) six complaints about dust from the North-East area within that period, of which four alone were from one claimant, Mr Rodway, and the other two both from Linden Avenue. In other words, there were significant discrepancies between the modelled results and the frisbee 2016/17 data, but also as between the RHRs and the frisbee 2016/17 data.[1006]Dr Carruthers also made the point that cherry-picking the most obvious comparisons between the modelled results and measurements from specific locations in specific times was liable to distort, whereas a better overall comparison could be seen from his figure 50, which showed a less dramatic difference for most of the results.[1007]In re-examination he was taken, perhaps with a converse element of cherry-picking from Mr Kent, to his modelling results for Maureen Jones who, as will be recalled, lived at 2 North View in the East 1 area and, hence, not far south from the Lodgevale Park area. These showed that one extremely high mg/m2/day was modelled on one day in August 2016 and two other high results were also modelled, both exceeding 200 mg/m2/day, over the surrounding period. The point being made, I infer, was that a modelled estimate of three such incidents in a 12 month period was not obviously implausible.[1008]Overall, his view was that the results of the dust modelling analysis were not surprising, given that the exercise only modelled dust depositions from Kronospan, whereas the samples included all dust deposited in the sample from Kronospan and from all other sources, such as vegetation and transport related dust particles.[1009]It was also put to him that the modelling inputs did not take into account the effect of re-suspension, such as where dust emitted from an unplanned emission landed on a roof, picked up by wind, landed on a road, picked up by wind again, and so on. Dr Carruthers noted however that it tended to be only the smaller particles which tended to be re-emitted in this way. Further, since the exercise is concerned with emissions from the site onto the residential areas, if dust falls on to another area of the site and is re-emitted, eventually landing in a residential area, it is difficult to see how it could be treated as being more than just one emission from the site for the purposes of the modelling exercise as well as in real life.[1010]As indicated, Dr Carruthers had also argued that, if anything, the modelling adopted assumptions which in fact led to an overstatement of the likely emissions. When this was put to Ms Wilson in cross-examination, she disagreed, stating that unplanned emissions were very much estimates. Although she also stated that the log-yard emissions were taken from the US EPA, which was generally based on minerals and did not take into account the different properties of wood fibres, Dr Carruthers had explained in the joint statement that he and Dr Gibson had made adaptations to established emission factors for wood dust sources. Ms Wilson also accepted in cross-examination that there were other reasons why the model input for unplanned emissions could be overstated, namely the rate of pile degradation used, the impact of surface crusting mentioned in the US EPA, the influence of rainfall and water suppression measures and the screening impact of the bund and trees around the site entrance.[1011]In the joint statement Dr Carruthers had said that he would accept that there was a range of uncertainty in all of the modelling predictions, but that in his view it was only 0.5 to 1.5 in relation to planned emissions, 0.2 to 5 for unplanned emissions and 0.2 to 3 for log-yard emissions. His view was that Ms Wilson’s assumptions were “extreme and unjustifiable”. He made the point in cross-examination that Ms Wilson’s adjustments did not build in any compensation either for the uncertainty of the frisbee 2016/17 data or for the extent to which the adjustment departed from the initial modelling estimate.[1012]All these points seem to me to have force. By not including some allowances for these countervailing factors in her adjustments Ms Wilson was not, in my view, adopting a sufficiently rigorous and impartial approach. She was also elevating the frisbee 2016/17 data to a significance and a reliability which they cannot in my judgment bear.[1013]In cross-examination, Ms Wilson suggested that even if the modelling was adjusted and the top of these ranges used, that would still result in significantly more exceedances of the 200 mg/m2/day threshold than Dr Carruthers had identified. Whilst it is plainly true that it would have resulted in a higher level of exceedances, the impact on the overall result can only be surmised in the absence of such calculations having been done.[1014]Ms Wilson had had ample time to undertake this exercise in the lengthy period between the joint statement and the trial had she wished to do so. So had Dr Carruthers for that matter. After hearing her evidence to this effect at trial Dr Carruthers decided to do so himself and Mr Kent sought to put his conclusions into evidence in his examination-in-chief. Mr Hart objected that it was too late to do so, because he would not have time to take instructions, which Ms Wilson could only provide once she had seen the detailed underlying data, or – thus – to cross-examine on a suitably informed basis. I upheld his objection, but on the basis that in fairness to both parties (as well as for the reason already explained) I would place no reliance on what Ms Wilson had said in evidence either on this point.[1015]As already stated, Ms Wilson considered that it was appropriate to make adjustments, especially given the significant divergence between the results of the modelling exercise when compared with the measured values from the frisbee 2016/17 data.[1016]In paragraph 3.5 of her report Ms Wilson had stated that what she had done was to “verify and adjust the outputs based on a comparison with the available monitoring data for the model period as published by the CELG”. This, as was suggested to her in cross-examination, was rather understating the true significance of what she had done. As she accepted in cross-examination, in fact it was a process of “manipulating the modelling results to fit the only monitoring data we have”. She also did not make clear in her report or consider the justification for placing such strong reliance on the frisbee 2016/17 data, given that it only covered a nine month period in the last two years of the six year relevant claim period.[1017]As stated, it was not in dispute that in certain circumstances such an exercise might be appropriate, the example given in cross-examination being a case where:(a) there is modelling data from one source of emissions to one receptor site; but(b) there was also reliable monitoring data which was inconsistent with the modelling data. In such a case it might be appropriate to adjust either the emissions factor or the result.[1018]However here, in my judgment, it is plain that what Ms Wilson had done was to decide – wrongly in my judgment for the reasons already explained above in relation to the dust monitoring evidence - that the limited frisbee data was reliable. Insofar as she had also decided in this context that the history of complaints was also reliable as a minimum indicator of the extent of dust emissions from Kronospan, then she was also wrong in my judgment for the reasons also explained above. Having reached those conclusions, she had then concluded that the modelling results must be wrong because they were inconsistent with the reliable data. Having reached that conclusion, she had then decided that the appropriate course was to manipulate the emissions data modelling so that the results were more consistent with that data.[1019]What seems to me to be unacceptable was to do so without any reasoned basis for making the adjustments other than to achieve the consistency which she had already decided there should be with the frisbee 2016/17 data. In short, the adjustments were not made on the basis of some separate freestanding principled and justified basis.[1020]Dr Carruthers was prepared to accept that the adjustment made to the unplanned emissions figures was within a reasonable margin, but fundamentally disagreed with the extent of the adjustments in relation to:(a) the planned emissions, which amounted to a 91.42% increase; and(b) the log-yard emissions (where the increase ranged from a modest 6.93% for one source to a 92.51% increase in relation to the unpaved site roads, which was already the largest source of modelled emissions even before this adjustment was made). In examination-in-chief he described the emissions from this source after adjustment as being “truly enormous”. He also contested the decision to make no equivalent increase to the background figure.[1021]I agree with Dr Carruthers that this process went well beyond what could reasonably be justified and, effectively, amounted to throwing the model out of the window. In my judgment what Ms Wilson ought really to have done was to explain in her report why, in her opinion, the modelling results were plainly inconsistent with the available data on any sensible interpretation, to say that it was simply not possible to adjust them in a principled way which did not invalidate the whole modelling exercise and, hence, either simply not undertake the remodelled exercise or, at the very least, not to put forward the adjusted results as being ones upon which any significant reliance could be placed any more than – in her opinion – could reliance be placed on the unadjusted results.[1022]I have considerable sympathy for Ms Wilson, in that she was brought in to replace Dr Gibson but had to work on the basis of the modelling inputs already agreed between him and Dr Carruthers, with which – it appears - she did not entirely agree. However, if that was the position, then it seems to me that her only options were either to proceed on that agreed basis, but to explain why she did not agree with it or, therefore, accept the results produced, or for the Claimants to make an application to the court for permission for her to undertake her own analysis using different model inputs, whether instead of the previously agreed inputs or in addition to them. Whether or not permission would have been granted is a matter for speculation, although I cannot help but suspect that it would not have been given, having regard to the rather sorry chronology of events in relation to the expert evidence. However, instead, she started by following the agreed model inputs, but then attempted to manipulate the resultant results on the basis of what she believed they ought to have been.[1023]She explained that she had made adjustments to the log-yard emissions inputs on the basis that the literature had explained how difficult it was to model fugitive dust because of the uncertainties as to the source of these emissions. If that was the position, then that might have been a very good reason for her to include such caveats in her report.[1024]However, she had also made one of the largest adjustments to the planned emissions when, on the face of it, there was no obvious basis for doing so, since these were the most reliable source of emissions. She said that this was not of any importance in the context of this case, because they were having a fairly minimal influence on the monitoring locations. That may be so, although I note that she did say in her executive summary that these sources may in part explain the causal link between Kronospan and the dust emissions in the south and east areas. Nonetheless, that does not in my view explain making an adjustment which cannot be justified even on the basis of Ms Wilson’s own opinions. Later in cross-examination she accepted that she would not have done this if she was only looking at these planned emissions.[1025]More relevantly, for present purposes, was her analysis comparing the frisbee 2016/17 data with the unadjusted modelled deposition rates, with the latter being as she put it, not of the same scale almost across the board. I accept that in relation to Lodgevale Park and Maes-y-Waun this was so even though, as Dr Carruthers had said and as Mr Kent put to her in cross-examination, the frisbees were measuring all dust from all sources, as opposed to the modelling which was only modelling dust from Kronospan.[1026]However, as I have already said and as Mr Kent put to her in cross-examination, this alone did not justify her undertaking the exercise which she did. That is particularly so when, as Ms Wilson was fully aware, the frisbee 2016/17 data on which she relied was very limited, both in terms of number of locations and in terms of duration, when there was no hard information as to the circumstances in which it was undertaken, when on any view there were question marks as to the validity of all of the data, and when it was significantly different from the data from the dustdisc monitoring programme, which began very shortly after the end of the relevant claim period and within a matter of months after the end of the frisbee 2016/17 monitoring programme.[1027]Her answer in cross-examination was to say that she believed that the discrepancy was explained due to the significant under-estimation of the influence of the log-yard emissions, based on the complaints information. However, as I have already found above in relation to the dust monitoring evidence, the weight placed by Ms Wilson on the complaints information cannot be justified and, moreover, reliance on even more obviously subjective and unreliable complaints data, especially without a rigorous analysis of what it actually demonstrated on detailed investigation, could not support a decision to rely on the frisbee 2016/17 data if that was also subject to significant reliability concerns.[1028]Further, as she also agreed, even on her re-modelling exercise she was unable to obtain a good fit with the frisbee 2016/17 data, although she did suggest that it would be unusual to do so anyway. However, if that was the case, then it is even more difficult to see the merit in attempting the exercise.[1029]At the very end of her cross-examination, she stated that in relation to fugitive emissions the uncertainty associated with the exercise meant that the most useful element of the modelling exercise was to look at the distribution of impacts across an area, but not the actual deposition rates or the frequency with which they exceeded a specified threshold. When asked why she had not said so in her report, she said that it was too far down the line.[1030]This analysis of the real strength of the dust dispersion modelling exercise appeared substantially to coincide with Dr Carruthers’ own view, even though he was also more inclined to place greater weight on the accuracy of the inputs which he and Dr Gibson had agreed should go into the model.[1031]In summary, however, I do not accept the validity of Ms Wilson’s decision to undertake this re-modelling and it follows, and in any event, nor do I accept the reliability of the adjusted results.[1032]However, I also accept that it is difficult to place any real weight on the modelled results as produced by Dr Carruthers given the significant discrepancy between the results and the evidence, albeit itself subject to uncertainty, as regards the frisbee 2016/17 data and indeed the dustdisc data in relation to the North-East and East 1 areas. I consider that once Dr Carruthers had seen Ms Wilson’s report he should have undertaken his own analysis of the range of uncertainty in relation to the log-yard emissions and should then have re-run his modelling to see whether or not, applying that range, the re-modelled results were within a reasonable margin of consistency in relation to what appeared in the frisbee 2016/17 data and the dustdisc data for 2017-18. Conclusions drawn from the modelled data, including:(i) sources of dust;(ii) areas most to least affected and the distance beyond which the claimants’ complaints of nuisance are unlikely to have been such a degree to constitute an actionable nuisance.[1033]Given the disagreement between the experts in relation to the above issues it was not surprising that in relation to issue (i) there was no agreement about either the absolute or relative magnitudes of the dust emissions from the sources on the Kronospan site. Nor were they able to agree, other than in the broadest of terms as regards the spatial pattern of deposition, on the magnitude of dust deposited so as to be able to reach any agreed conclusions on issue (ii).[1034]In Ms Wilson’s view the adjusted results demonstrate that in the north-east residential areas the most frequent source of dust emissions is log-yard emissions, whereas in the other areas it is either unplanned emissions or a combination of planned emissions and log-yard emissions.[1035]However, in her adjusted results the position was still that only in the areas closest to the Kronospan site in the North East, East 1 and East 2 areas did the proportion of 4 weekly rolling average periods exceed the complaints likely dust deposition threshold rate of 203 mg/m2/day for more than 40% of the time. It only exceeded 20% in the east part of the East 2 area and did not reach 20% in any other areas. On that basis it seems to me that it would be difficult to see how any claims in any other than those three areas could even arguably reach the threshold of a significant dust emission event due to Kronospan.[1036]In his report Dr Carruthers had shown the results of his modelling in contour plot form, both by reference to all sources together and the individual sources separately.[1037]In short, taking first the median, then as regards the 200 mg/m2/day complaints likely daily dust deposition threshold, none of the residential areas would even have reached the lowest figure, whereas the log-yard area would have comfortably exceeded the 200 threshold. Even taking the 98th percentile (i.e. in only two out of 100 occasions), only the residential area within around 50m of the site boundary in the East 1 area would reach the 100-200 mg/m2/day sector. It is only taking the 99.9th percentile (i.e. 0.1 out of 100 occasions, or less than a day a year) that there is a significant impact, although that is from unplanned emissions rather than log-yard emissions. This shows, if correct, that the impact of dust emissions was extremely limited geographically.[1038]On balance, and for the reasons given, I am unable to accept either Ms Wilson’s conclusions or Dr Carruthers’ conclusions and, instead, am satisfied that the true position is somewhere between the two positions but, due to the lack of any intermediate analysis, am unable to say what that might be on the basis of this element of the expert evidence.[1039]In the end it is probably the case that this expert evidence has only succeeded in proving a negative, i.e. that there is no clear evidence from this dust dispersion modelling exercise which proves that dust emissions from Kronospan are likely to have caused significant dust emissions in any of the various residential locations of Chirk where the Claimants reside. Limitations to the model.[1040]The experts agreed that the two principal reasons for uncertainties in model predictions are model input parameters (including emissions), and model algorithms and processes. They agreed that the emissions methodology agreed between Dr Carruthers and Dr Gibson was made on a specific basis. They agreed that the significant difference between their modelling results is due to Ms Wilson’s adjustment to the model by using CELG data. Relevance to the dust monitoring evidence.[1041]Ms Wilson considered that there is some element of under-estimation in respect of some residential locations.[1042]In cross-examination, however, it was put to her that her table of modelled frequency of dust soiling above the threshold included elevated rolling 4 week percentages in respect of various frisbee and dustdisc locations which were inconsistent with the actual dust deposition results in those locations (or the closest similar ones in relation to the frisbees) over the whole period of testing and that this was a powerful indication that her modelling did not reflect the actual position.[1043]In response, Ms Wilson pointed to the broad correlation as regards the frisbee results at Chirk school and Lodgevale Park, which is not surprising given that it was in reliance on the frisbee data that she had made the alterations to the model.[1044]She also argued that the modelling could only ever be an estimate. That is obviously true but, in my view, ignores the fact that in this case the modelling was a retrospective exercise which could be compared with actual data and, crucially, that she had relied on her interpretation of the actual frisbee data to modify the results of the initial exercise.[1045]It was put to her that the only other way in which she could explain the difference between the actual dustdisc data and her modelling was if there had been a significant reduction in dust emissions from Kronospan post July 2017. As I have already stated, whilst not strongly apparent from the dustdisc data, there was probably a reduction in log-yard emissions from towards the end of 2018 onwards, but there is no reliable evidence to suggest that it took effect as early as July 2017. N. Nuisance – discussion and conclusions[1046]It is helpful to remind myself of the key questions I must address by reference to the authorities as discussed in section B above.[1047]The first question is whether or not Kronospan’s use of its site over the relevant claim period has caused a substantial interference with the ordinary use of each of the lead Claimant’s properties, where substantial means that it exceeds a minimum level of seriousness, judged objectively, and where it is necessary to make a judgment about what an ordinary person would regard as acceptable, making an allowance for variations in normal human reactions.[1048]If so, the second question is whether Kronospan’s use of its site over the relevant claim period was more than an ordinary use of the site. This is where the potentially complex investigation as to whether the established pattern of uses of the locality includes uses by Kronospan which themselves amounted to a nuisance and, if so, whether Kronospan had acquired a prescriptive right to commit that nuisance. At this stage the question as to whether or not Kronospan could rely on any prescriptive right if it had committed a public nuisance may also arise.[1049]The third question is whether, even if Kronospan’s use of the site was an ordinary use, it also took reasonable steps to keep the nuisance to a reasonable minimum. This is where any issues of compliance with the relevant environmental permits may arise. A substantial interference with the ordinary use of each of the lead Claimant’s properties from dust?[1050]I will address interference by dust emissions first.[1051]Kronospan submitted that occasional dust deposits on cars could not amount to a sufficient level of interference to support a finding of actionable nuisance. They submit that the fact that a car used for everyday purposes acquires dust from Kronospan as well as normal environmental dust from being driven around and then parked in the open air cannot amount to a substantial interference with the use and enjoyment of the Claimants’ occupation of their property, given that all of this dust has to be cleaned off at regular intervals anyway. They also observe that if any lead Claimant did not have or use off-street parking it is not possible to regard dust emissions affecting their car as relevant to their loss of amenity in relation to their property. That last point can only, I think, be a question of fact and degree in an individual case and it is not necessary for me to make a finding on the point in this case.[1052]They make the same point in relation to garden furniture, which is designed to be kept out of doors. They say the same in relation to window sills and door sills and also say that there is no convincing evidence of dust entering houses.[1053]I agree with this submission in relation to those dust emissions which only involve a modest amount of dust, not sufficient to make a reasonable occupier feel that they needed to clean their car, garden furniture or sills appreciably sooner than they otherwise would.[1054]If, however, the dust emissions are more substantial, either due to a significant quantity being deposited in a short time or to a lesser quantity over a longer time, which leaves a visible amount of wood dust which is obvious to the average reasonably observant person, and would make the average reasonable householder want to remove it as an unsightly blemish, then that would, in my judgment, be capable of amounting to a substantial inference. That is providing that such significant dust emission events occur on such a sufficiently frequent basis and over such a sufficiently prolonged period as to be regarded as unacceptable by the average reasonable householder.[1055]Clearly, if I had accepted the Claimants’ evidence as wholly reliable, I would have been satisfied that each had satisfied the substantial interference requirement.[1056]However, I have found that the Claimants’ evidence is, without exception, significantly exaggerated, although some more so than others.[1057]Furthermore, although I must bear in mind that I must decide each individual lead Claimant’s case separately, when considering the actual level of interference each has suffered I must have regard to the evidence overall as to the impact of the Kronospan dust emissions on their particular part of Chirk, because there is no principled basis for saying that the level of interference objectively suffered by, for example, Mr John Jones could sensibly differ materially from that suffered by his close neighbour, Mrs Nina Williams.[1058]As I have already found, the frisbee 2016/17 data does not satisfy me that nuisance levels of dust were experienced at any or near any of the locations where the frisbees were placed in that ten month period other than on a relatively small number of occasions in relation to Lodgevale Park and far fewer elsewhere. For the reasons I have given, this data is far too variable, unreliable and time-limited to enable me to draw any clear conclusions as to the frequency, nature, extent and impact of any significant dust emission events from Kronospan over the relevant claim period as a whole.[1059]The most which can be said with any confidence is that there were a small number of four-weekly periods where the 230 mg/m2/day threshold was significantly exceeded. In my judgment this is nowhere near sufficient to establish a substantial interference by dust over this period or, by extension, over the whole of the relevant claim period.[1060]The SEM analysis conducted, as recorded in the CELG report, did not support the Claimants’ case that any dust emissions had come from Kronospan, although the analysis itself is not available and only a very small area of the dust was sampled in this way.[1061]Further, as I have also already found, the frisbee 2016/17 data is significantly inconsistent with what I am satisfied is the more reliable dustdisc data, especially that from 2017 and 2018, which is highly relevant to my assessment of dust emissions within the relevant claim period. This data demonstrates even more clearly that in relation to none of the residential locations (other than Crogen, and then only on a handful of occasions) was the 203 mg/m2/day threshold exceeded. Applying the more directly relevant %EAC thresholds and his site specific %EAC criterion none approached the 5% serious complaints threshold.[1062]I have noted the Claimants’ argument that neither the frisbee 2016/17 data nor the dustdisc 107/18 data exclude the possibly of individual high dust depositions on isolated dates. I accept however, as I have already said, that there is insufficient other reliable evidence to satisfy me that this was happening in individual areas on a basis any more frequently than I have already found in relation to the individual lead Claimants.[1063]Finally, and again as I have already found, the complaints data does provide reasonable support for the Claimants’ case in general terms. However, in the absence of a proper statistical analysis, it does not prove that any of the individual lead Claimants in any of the individual areas experienced such a frequent number of significant dust emission events principally due to dust emissions from Kronospan over such an extended period as would demonstrate a substantial inference sufficient to amount to a nuisance over all or any part of the six year relevant claim period.[1064]For the reasons I have already given, neither the dust characterisation evidence nor the dust dispersion modelling evidence persuades me of this either and, to the contrary, insofar as it is capable of supporting either party’s case it supports that of Kronospan.[1065]I accept that although there were undoubtedly occasions where over the course of the relevant claim period WCBC did make clear that they were satisfied that there were unacceptable levels of dust emissions from Kronospan, this was not a consistent state of affairs and in general WCBC appeared satisfied with Kronospan’s explanations and assurances. Significantly, at no stage did WCBC even begin any enforcement action in relation to alleged breaches of the relevant permit in relation to dust emissions.[1066]I accept that considering the complaints data alongside the correspondence between WCBC and Kronospan and the frisbee 2016/17 data and dustdisc 2017/18 data, it is reasonable to conclude that there are two principal patterns. The first is an element of justified complaints in relation to the consequences of significant unplanned emissions events coupled with high winds, causing dust to be blown in the direction of whichever residential areas of Chirk the wind happened to be blowing at the time. The second is another element of justified complaints in relation to the consequences of log-yard emissions, when a combination of high levels of exposed sources and high winds, especially in summer periods with warm and dry weather, usually towards the North-East and East 1 areas, and particularly the case in 2011, 2015 (although even then Mr Minshall noted only light to moderate dust emissions, with a mix of Kronospan dust and general environmental dust), 2016 and 2017.[1067]However, the evidence in relation either to such significant unplanned emissions incidents or log-yard emissions simply does not establish that over the relevant claim period this led to dust emission events of such frequency and seriousness (in terms of amounts of dust from Kronospan or in terms of the consequences of such dust) in relation to any or all of the residential areas of Chirk to conclude that it amounted to a nuisance for which Kronospan is responsible.[1068]Even where I accept that some of the residents of particular areas of Chirk will to some extent at least have suffered from dust both from unplanned emissions and from log-yard emissions I am still not satisfied that the criteria for a nuisance is made out.[1069]I began my review of the Claimant’s factual evidence with Mrs Green, giving detailed reasons for my conclusions in relation to her case, because it seemed to me that if any of the lead Claimants could make out a case for the existence of a substantial interference from dust emissions from Kronospan it was her, given her close location relative to the Kronospan site and, in particular, the log-yard area, her general reliability as a witness, her history of complaints and the dust log which she and her husband had maintained over the last ten months of the relevant claim period.[1070]However, as I said when considering their evidence by reference to the evidence as a whole, it seemed to me that the factual evidence only justifies a conclusion that they experienced significant dust emissions principally from Kronospan on average only once a month over the relevant claim period.[1071]It is important at this stage to stand back and look at matters in the round and to consider whether such an experience could nonetheless amount to such a substantial interference over such an extended period as to justify a finding of nuisance. Having done so, I conclude that it does not, for the following reasons in particular.[1072]First, whilst I accept that seeing visible dust particles on a car on a reasonably regular basis over an extended period is annoying, I am not satisfied that the interference with the enjoyment of one’s property is so substantial as to amount to a nuisance in legal terms.[1073]Particular points to bear in mind are that:(a) its impact is only aesthetic, so that it does not prevent the car from being driven;(b) it does not have an unpleasant texture, colour or odour, such as would make the average owner to look at it with active distaste, in the same way as most people would regard a heavy scattering of bird droppings over a car;(c) it is reasonably easy to remove by brushing, indeed I accept that most of the time most of it will be removed naturally by being blown off when the car is in motion or by rainfall;(d) it has no lasting impact on the car.[1074]It is also relevant that all of the lead Claimants who complained to Kronospan (as they easily could and would if they found it as annoying as they claimed) knew that they could obtain a free car wash token which would save them the time and trouble of having to clean it themselves and would leave them instead with a freshly professionally cleaned car. Whilst I appreciate that even doing this might be irritating, especially to a busy working person, they would still be getting a benefit above and beyond simply brushing off the dust.[1075]Second, similar considerations apply to garden furniture. Anyone who was sufficiently concerned about dust on their garden furniture to clean it off every time they used it, especially before eating or entertaining, would be cleaning the furniture on a regular basis anyway. Cleaning dust such as Kronospan dust off garden furniture is less time-consuming than giving a car a thorough wash. I simply do not accept that wood dust from Kronospan could ruin garden furniture as alleged by various Claimants, unless it was simply left along with other sources of dust for extended periods to allow moisture to cause rust or moss growth or similar. Whilst some of the lead Claimants did undoubtedly spend significant amounts of money on impressive garden furniture and other garden equipment, they must have done so knowing that to keep it in good condition they would have to keep it clean of all sources of dust, whether from Kronospan or otherwise.[1076]Third, the same considerations apply with even more force to external window and door sills. Again, houseproud owners would be likely to clean them down on a regular basis regardless of the presence or absence of significant Kronospan dust emissions. Others would wait for them to be cleaned by the regular window cleaner or, in some cases, such as Mr Davies simply not bother.[1077]I am not persuaded that that it was a frequent occurrence for Claimants to leave windows or doors fully open for extended periods at a time when Kronospan dust emissions could and would enter the insides of lead Claimants’ properties or, even when this did happen, the dust could have travelled far inside. It was striking how many photographs of the Claimants’ properties showed windows being left open, which is not surprising but does indicate that the risk of house interiors being affected by dust was not perceived as a serious problem. Again, any reasonably houseproud owner would be cleaning their house on a regular basis and, save for the most unusual of events, the presence of a small amount of dust from Kronospan would make no difference to that regular pattern.[1078]Finally, I have little doubt that any reasonable householder, knowing that the Kronospan dust emissions presented no demonstrated health hazard, would not have regarded an occasional dust emission event as anything more than a modest irritant of life in Chirk, rather than one which had a significant deleterious impact. I am prepared to accept that the significant unplanned emissions of 2012 and 2017, which led to significant numbers of complaints, would, had they happened on a regular basis in relation to some or all of the areas in question, have justifiably been regarded as a major irritant which could well have amounted to a substantial interference and a nuisance. The same is true if the complaints of log-yard emissions in summer 2016 had also been of such regularity and seriousness over such a regular period as to attain the level of a substantial interference. However, on the evidence, that was not the position, even in relation to Mrs Green.[1079]I have given anxious consideration to this conclusion, because I am prepared to accept that it is close to the borderline of what is and what is not a substantial interference. If I had found either that the impact was more substantial than it was or that the frequency was more regular than it was then I would have been willing to make a finding in Mrs Green’s favour. However, in the end I am not satisfied that the impact or frequency is sufficiently substantial to cross the line into becoming a legal nuisance.[1080]Even if I was wrong about the need to show that dust emissions from Kronospan were the principal cause of the interference, so that the question had to be determined on the basis of a finding of significant dust emission events approximately once every two weeks where dust emissions from Kronospan were a significant or substantial cause of the interference alongside dust particles from road traffic, including shedding wood pieces, as well as local vegetation, then although this would have been a very difficult decision I would not have been satisfied that it crossed the dividing line, bearing in mind the need to err on the side of caution in cases where there is no clear dividing line in legislation or official guidance and the difficulty – especially in this case – of making findings with real confidence.[1081]It follows that Mrs Green’s claim cannot succeed and, as I have said, if her claim cannot succeed then none of the other lead Claimants’ claims can hope to succeed, since the nature, extent, impact and frequency of significant dust emission events due to Kronospan was less in their cases than it was in relation to Mrs Green.[1082]The fact that some people, such as Mrs Bell and Mr John Jones, developed – albeit for different reasons – a hypersensitivity to dust emissions from Kronospan cannot alter this conclusion. A substantial interference with the ordinary use of each of the lead Claimant’s properties from odour or noise?[1083]I can deal with these much more shortly.[1084]As I have already indicated, the history of complaints demonstrates fairly clearly no equivalent pattern of frequent complaints over an extended period in relation to odour or noise, whether from individual Claimants or from particular areas.[1085]As regards noise, insofar as there is a pattern it is related to noises from the log-yard or other open areas at night, especially in warm conditions when people like to sleep with their windows open. It would be wrong to minimise the annoyance caused by noise, especially at night.[1086]However, it must be borne in mind that there is no expert evidence which establishes that the recorded noise levels, either internally, especially in bedrooms at night, or externally, especially in gardens when the householder might expect to be outside in good weather, exceeded any recognised maximum noise levels at all, let alone on such a frequent basis or over such an extended basis as would amount to a substantial interference with their enjoyment of their property.[1087]Although the Claimants seek to rely on the improvement requirements in the permits as evidence that WCBC considered that existing noise levels amounted to a nuisance, that in my judgment is an inference which cannot properly be drawn in the absence of evidence, whether from an expert or from Mr Minshall or some other WCBC witness. The same is true as regards the Claimants’ case that Kronospan’s (relatively modest) delay in obtaining specialist reports or in implementing the recommendations from those reports in itself is evidence that Kronospan was guilty of a nuisance in the meantime.[1088]Set against this slender evidential thread is the evidence of Mr Kettlewell, which was not challenged, and the contemporaneous documentary evidence of the various reports and noise assessments to which he refers and which are in evidence.[1089]The evidence in relation to odour demonstrates in my judgment that insofar as there was any established pattern of odour emissions from Kronospan it was the odour of freshly stored or processed wood and the odour of heated wood. Whilst I appreciate that the odour of heated wood might not be quite as pleasant as the odour of roasted cocoa beans, in my judgment no reasonable person could suggest that either amounted to a substantial interference with the enjoyment of their property. Of course it is all a question of fact and degree, and if I was considering the case of an inner city location where densely occupied terraced housing was situated just the other side of a brick wall from a factory building emitting a permanent strong odour of very highly heated wood from a low chimney, then I am prepared to accept that this might well cross the border into a nuisance. But that is very far from the facts of this case.[1090]I also accept that there were also occurrences of chemical type emissions used by Kronospan in the various processes. However, these processes were undertaken in closed conditions with emissions being treated in accordance with the permit conditions before they left the closed structures. The evidence shows in my judgment that these odour emissions were neither frequent nor highly offensive. There is no evidence that they were associated with any health hazard. They could only have been experienced on isolated occasions where unplanned emissions events led to untreated venting to atmosphere or occasions of plume grounding, which were not at all frequent occurrences over the relevant claim period.[1091]On the evidence I am satisfied that there were no emissions of formaldehyde of any relevance, because those would have needed to be reported to NRW and, on the evidence which I accept, would not have resulted in an offensive smell anyway.[1092]Again, once any reasonable householder had understood that none of these smells represented any risk to human health and were only occasional isolated occurrences I simply do not accept that could have regarded them as a substantial interference with their enjoyment of their property.[1093]Finally, in relation to both odour and noise, it is pertinent that at no time did either regulator take any enforcement action in respect of them. Nuisance in the round[1094]For completeness, I hold that if it is necessary to consider the totality of the complaints of dust, odour and noise emissions over the whole of the relevant claim period, that would not alter my conclusions as above. Ordinary user – discussion and conclusions[1095]Given the above conclusions, I do not need to address this issue and do not intend to lengthen the judgment by doing so other than in summary, because my conclusions will already be apparent from what I have already said.[1096]In short, if the Claimants had persuaded me that Kronospan was responsible for a substantial interference with the enjoyment of their properties over the relevant claim period, then I would not have been satisfied that Kronospan could rely on the defence of ordinary user.[1097]That is because I would have found that this level of substantial interference was not the consequence of a slow, steady and incremental series of changes over an extended period which did not individually amount to a change in the ordinary user of the site. Instead, there was a marked increase over a relatively short period from around the start of 1992 to around the end of 1999 in which, as already explained, MDF began to be produced (eventually via two presses), particleboard began to be produced via a continuous press, kitchen worktop and laminate flooring production also began and the processing of RCF began. In short, in this relatively short period a relatively modest operation had increased significantly to a very substantial operation.[1098]Thus, I would not have been satisfied that by around the beginning of 2000 the established pattern of uses in Chirk had developed to include the full range of Kronospan’s dust, odour or noise emitting activities present at that time so that it could argue that its ordinary user of the land extended to such activities.[1099]It follows that, on this hypothesis, from around the beginning of 2000 Kronospan’s activities would have amounted to a nuisance. Thus, Kronospan would have had to rely upon a defence of prescription having accrued by 2011. However, it is apparent from the chronology that:(a) Kronospan cannot demonstrate the 20 year period necessary for a defence of prescription, whether one is looking at the start of the relevant claim period in 2011 or the end of that period in 2017;(b) at no time was Kronospan asserting an entitlement over the period in question to undertake its activities regardless of whether they amounted to a nuisance and, instead, to the contrary it was actively engaging with WCBC and with the local community to demonstrate that it had been taking and was continuing to take serious steps to prevent or ameliorate any unacceptable level of emissions; and(c) at no time could it be said that any of the individual Claimants had acquiesced in Kronospan emitting these emissions. Reasonable steps – discussion and conclusions[1100]Again, this issue does not arise since I have not found there to have been a substantial interference which would have amounted to a nuisance but for Kronospan being able to persuade me that its activities fell within the scope of the ordinary user of its site.[1101]If this had been in issue, then in summary I would have been satisfied that taking everything in the round Kronospan had been able to demonstrate compliance with its obligation to take all reasonable steps to ensure that any nuisance was kept to a reasonable minimum.[1102]Although the Claimants have been able to point to certain respects in which Kronospan did not proceed as speedily as it could have done to make improvements, in particular in relation to the RCF reception building and the PAL pre-production plant, I am satisfied that overall it complied with this obligation.[1103]Whilst it can be demonstrated (as it was during cross-examination of Mr McKenna) that there were occasions when Kronospan was more interested in proceeding with improvements to the production process which improved output or efficiency or both than with improvements to reduce dust, odour and noise emissions, I do not accept that this can be regarded in itself as unreasonable. In my judgment this obligation cannot be equated with an unqualified strict duty to do everything possible to implement as priorities any and all improvements which could conceivably be regarded as BAT without any delay and regardless of other priorities.[1104]In any event, I accept the evidence of Mr Kaindl that Kronospan did comply with its obligations as regards BAT over the relevant period. That is particularly so when as I have stated the evidence is that BREF was not even issued until 2016 and did not come into force until November 2019. Damages[1105]If I was wrong about all of the above then I would have awarded damages in relation to each individual lead Claimant as stated above at the end of my analysis of their relevant evidence. The issues which the parties have suggested require findings[1106]The parties have suggested specific issues on which I may need to make findings. These are not, however, agreed issues which have been made the subject of a court order for their specific determination, so that I have borne them in mind as a useful aide memoire. I am not proposing to give answers but identify in general terms the answers or where they are to be found.[1107]As amended a little by me, they comprise the following: The general character of Chirk to which the claims relate, including any changes to such character in the years leading up to and during the relevant claim period.[1108]Addressed in section D above. The nature and extent of the industrial activities carried on by Kronospan at the site and any material changes in the same in the pre-claim period, the relevant claim period (and thereafter - to the extent that it is relevant to my assessment of the evidence in relation to the earlier periods).[1109]Also addressed in section D above. The planning and other regulatory regimes governing activities on the site and the content and requirements of the permissions and permits granted thereunder.[1110]Addressed in sections C and D above. The nature, extent and frequency of any dust, and/or odour and/or noise impact over the relevant period experienced by the lead Claimants at their properties and any changes in the same from time to time.[1111]Addressed generally but specially in the consideration of the evidence of each of the lead Claimants and this section N.[1112]The following technical sub-issues are also raised. Can interpretation of the SEM-EDX data show whether and to what extent the dust samples collected by dust monitoring equipment originated from the Kronospan’s factory or elsewhere?[1113]Addressed in section L above. What conclusions can be drawn from the analysis of complaints, weather and air pollution data about whether the dust complained of by the Claimants is likely to have been of such a degree as to constitute an actionable nuisance?[1114]Addressed in section K above. What are the appropriate thresholds, in terms of deposits of dust in mg per sq m per day, beyond which complaints of dust nuisance are possible or likely?[1115]Addressed in section K above. What, if any, conclusions can be drawn from the dust dispersion modelling data as to:(a) the likely sources of dust;(b) the particular residential areas of Chirk most affected to least affected; and(c) the extent to which particular locations would, at different times during the relevant claim period, have experienced dust deposition exceeding thresholds identified under issue (iii) above. What limitations are there to the dust dispersion models? What matters are left out of account in the modelling exercise and what if any allowance should be made for these? What measures of deposited dust can be considered as providing a baseline or background?[1116]All addressed in section M to the extent appropriate. What are the appropriate threshold(s) to be used when considering dust impact? What conclusions can be drawn from the dust monitoring results that have been considered about whether the dust complained of by the Claimants is likely to have been of such a degree as to constitute an actionable nuisance?[1117]Addressed in section K above. What is the relevance of the dust monitoring evidence to the modelling evidence?[1118]Addressed in sections K and M above. Whether each lead Claimant has sustained special damage so as to allow a claim in public nuisance.[1119]Not applicable. The techniques used by Kronospan from time to time during the relevant claim period to abate any dust, odour or noise impact.[1120]Addressed in sections D and E above. Kronospan’s assertion of prescription and the Claimants’ responses of uncertainty, and lack of acquiescence through complaints and that no prescription can lie as a matter of principle for public nuisance.[1121]Addressed in this section. O. Glossary and common abbreviations Abbrev. Full description %AAC Short for % absolute area of coverage. A dust soiling criterion. %eEAC Short for % effective area of coverage. A dust soiling criterion. BAT Best Available Techniques. BREF BAT reference document. CELG Chirk Environmental Liaison Group, a committee made up of representatives from WCBC and the Chirk Town Council. It was initially set up in the 1990s to discuss and review environmental issues with Chirk residents. Representatives of Kronospan (as well as Mondelez) were regularly invited to attend to report to the meetings on relevant developments and to take part in matters affecting them and did so. The minutes of meetings which are available indicate that it appears to have operated constructively and without undue disagreement or rancour. CVOCs Condensable Volatile Organic Compounds. Dustdisc Proprietary dust sampling equipment which provides mass dust deposition data and directional dust deposition data. EIRF Environmental Incident Reporting Form. EPA 90 Environmental Protection Act 1990. EPRs Environmental Protection Regulations. Frisbee Colloquial description for a type of dust sampling equipment, so named due to its resemblance a frisbee. Formalin Formaldehyde dissolved in water, used in making particleboard. MDF Medium density fibreboard, formed from wood fibres combined with a binder, typically a synthetic resin. It differs from particleboard in that it does not have an inner core and external surfaces. mg/m2/day A measurement of dust deposition rate, where mg is the weight of the quantity of dust collected in a square metre area over a calendar day. NRW Natural Resources Wales (formerly the Environment Agency). RCF Recycled wood fibre. RHR Residents Hotline Report. SEM Scanning Electron Microscopy analysis SEM-EDX Scanning Electron Microscopy - Electron Dispersive X-ray analysis, using a high resolution and high magnification electron microscope, allowing the morphological features of particles to be distinguished and therefore characterised, subject to limitations. These methods allow analysis of the chemistry of these particles to characterise them. WCBC Wrexham County Borough Council. WESP Wet electrostatic precipitation filter (to treat particleboard dryer emissions). These perform a similar function to wet scrubbers, but operate in a different way.

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Michael McKenna; Dr Bernard Acton; Dean Kettlewell; Matthias Kaindl; Chelsey Burgess and Keith Baker.