Can you claim for nuisance without negligence?

Updated June 2011

In the case of Barr & Others v Biffa Waste Services Limited, 152 households on an estate claimed damages for nuisance against Biffa. The complaint related to odour from pre-treated waste emanating from Biffa's landfill site (the Site). The claims were dismissed as the complaints related solely to activities on the Site which Biffa were permitted to undertake (and which were expected to generate some odour). There had been no suggestion that Biffa had been negligent.

Background

A permit for tipping waste at the Site was issued on 7 April 2003. The permit was subject to extensive conditions. In accordance with landfill regulations the proposed waste was to be pre-treated. In practice, this meant that the waste received at the site would have been first gathered at transfer stations in order that recyclable waste could be removed. The waste coming to the site was not recyclable, which meant that it was more likely to be organic and, because of the delays in getting into site, more odorous. The Environment Agency formally transferred the permit to Biffa on 25 May 2004. The waste disposal and land filling work began at the Site on 6 July 2004. In July 2004, complaints began to be made to the Environment Agency about odour from the Site.

On 10 November 2004, the Environment Agency produced a site inspection report which identified a "strong smell of rotting rubbish". An enforcement notice was served on Biffa and Biffa was ordered to take action to minimise odour. Notwithstanding its efforts, Biffa was eventually prosecuted by the Environment Agency for nine breaches of the permit. On 25 October 2007, Biffa were convicted on four of the nine charges.

Nuisance

The essential issue in this case was whether a claim of nuisance, without negligence, could lie against the operator of a landfill site. In particular, in circumstances where the activities said to give rise to the nuisance had been carried on accordance with a detailed environmental permit. The judge said no; the legislation and the detailed terms of the permit meant that the use of the land in accordance with the terms of that detailed permit was a reasonable use of that land. As a matter of law, Biffa would be liable if nuisance was created by their negligence but not if it was an inevitable consequence of permitted activities.

The judge did not forget that Biffa had been convicted of four breaches of the permit. However, he held that these four odour incidents which had occurred over a period of five years could not amount to a nuisance in common law.

Comment

As a general rule in nuisance claims, it is necessary to establish a minimum standard of comfort beyond which the consequences of a relevant activity would amount to a nuisance. Having a threshold in an odour nuisance case is imperative, not only because of the need to consider what might be reasonable use in all circumstances. Odour cases are subjective and are impossible to evaluate by reference to objective or scientific measurements. There are no tests which can be undertaken to prove smell at a particular level. In an odour case a reasonable balance cannot be struck between competing interests without identifying in some way the appropriate dividing line, "the moment when give becomes take".

In this case the judge undertook his own analysis of the appropriate threshold and in doing so he noted the significant absence of contemporaneous records available. Although, on the facts of this case, Biffa would still not have been found liable as they had gone to great lengths to comply with the permit and also to minimise any adverse effects. The judge stressed the importance for the parties in similar cases in the future to make complaints and keep records.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2011. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

TLT LLP is a limited liability partnership registered in England & Wales number OC 308658 whose registered office is at One Redcliff Street, Bristol BS1 6TP England. A list of members (all of whom are solicitors or lawyers) can be inspected by visiting the People section of this website. TLT LLP is authorised and regulated by the Solicitors Regulation Authority under number 406297.