Nuisance: A return to 'well-settled' principles

In Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312, [2012] All ER (D) 141 (Mar) the Court of Appeal allowed the claimants’ appeal from the decision of Mr Justice Coulson (on which see our December 2011/January 2012 issue pp11-12). In doing so, the Court of Appeal affirmed that the case should have been decided in accordance with orthodox legal principles which have long governed the law of nuisance. Given the errors of law made by Coulson J, it was not possible for the Court of Appeal to draw any final conclusion from his analysis of the individual claims and so the case was remitted to ‘an appropriate forum to complete that assessment’. This conclusion is an unfortunate one in so far as it will require the parties to incur still further costs in the resolution of their dispute. However, the Court of Appeal expressed the hope that the parties might be able to bring the proceedings to a close ‘as speedily and economically as possible’, possibly by way of mediation.

The facts

The claimant householders in Hertfordshire brought a claim in respect of foul smells emanating from a landfill site which was operated by the defendants. The particular problem arose out of the disposal of ‘pre-treated’ waste which commenced in 2004 pursuant to a Waste Management permit which was granted by the Environment Agency. The permit contained a number of detailed conditions. Complaints were made by people living close to the landfill site almost immediately after the disposal of pre-treated waste began. The defendants attempted to find a solution to the problem but failed to do so to the satisfaction of the residents. The Environment Agency then became involved and issued a formal warning to the defendants. But this did not achieve a resolution of the issues and so the claimants commenced proceedings against the defendants in which they sought redress at common law, alleging that the defendants had committed the tort of nuisance.