In April 2011 a judgement was given on a case regarding alleged odour nuisance between 2004 and 2009 from the Biffa waste site at Ware in Hertfordshire. An action group of 152 households brought forward the case with 30 households being selected as lead claimants to bring forward the action. In this case, the judge ruled in favour of Biffa. (By Dr Michael Bull – Odour Consultant)
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The main interesting points of this judgement were:
- That the judge noted the claimants didn’t allege a breach of their permit from the Environment Agency and hence Biffa were not negligent. The claim was considered one of simple nuisance and “I must assume that Biffa were neither in breach of the conditions of their permit nor negligent”;
- Reasonable user – The judge held that, activities carried out in compliance with the detailed terms of the Environment Agency permit and without negligence “must equate to a reasonable user of land”
- The relevant odour threshold for nuisance – In the original judgement, the judge decided that there was a clear need for an appropriate threshold to apply to determine nuisance, He decided “one odour complaint day each week (i.e. 52 a year) regardless of intensity, duration and locality”
In the appeal decision the judge found in favour of the claimants and overturned the previous decision. In response to the three points above, the appeal judge noted the following factors.
- The fact that no breach of the permit had been alleged should not lead to the assumption that no breach of conditions had taken place; this is “a step too far”. The appeal judge considered that the claimants didn’t have to prove a breach of permit or negligence to establish their case in nuisance and that “the resident’s failure to make any specific allegation of breach by Biffa could be no more than neutral”;
- The appeal judge rejected the original defence of reasonable user – he noted that reasonable user should be judged by well-settled tests and suggested this was “objectively what a normal person would find it reasonable to have to put up with”. He also noted that having a permit from the Environment Agency did not give “statutory authority” to cause a nuisance.
- Finally the appeal considered that the original judgement that a threshold was required “reached the wrong conclusion”. He noted that was no precedent for requiring claimants to specify a precise limit of acceptable smell, and there is no established methodology for doing so.
Within the appeal judgement, the judge noted that main factors to take into account to consider whether a nuisance exists in law as follows:
- There is no absolute standard; it is a question of degree whether the interference is sufficiently serious to constitute a nuisance. That is to be decided by reference to all the circumstances of the case.
- There must be a real interference with the comfort or convenience of living, according to the standards of the average man.
- The character of the neighbourhood area must be taken into account. Again in familiar 19th century language, “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey…”
- The duration of an interference is an element in assessing its actionability, but it is not a decisive factor; a temporary interference which is substantial will be an actionable nuisance.
- Statutory authority may be a defence to an action in nuisance, but only if statutory authority to commit a nuisance is express or necessarily implied. The latter will apply where a statute authorises the user of land in a way which will “inevitably” involve a nuisance, even if every reasonable precaution is taken.
- The public utility of the activity in question is not a defence.
The case is an interesting development and provides a good summary of some of the issue to be taken into account in odour nuisances cases.
The views expressed in this article are those of the author, all references should be checked back to the original sources.
Further Information
Derrick Barr and others and Biffa Waste services Limited, Case No HT-09-165
