Permits no defence from nuisance claims

21st March 2012

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The Court of Appeal has ruled that compliance with an environmental permit does not protect companies from being sued for nuisance

Waste management company, Biffa successfully argued in the High Court last year that by operating within the terms of the permit for its Westmill landfill site, it was acting as a “reasonable user” and therefore was not in breach of nuisance laws.

In that landmark case, Justice Coulson ruled that the common law of nuisance should “march in step” with modern environmental legislation and that the existence of an environmental permit was evidence that an organisation was a reasonable user.

However, three Court of Appeal judges have overturned the decision, stating that Justice Coulson should not have re-examined the common law rules. “The fundamental principles of law were settled by the end of the 19th century and have remained resilient and effective since,” they said.

The case reinstates the previous legal position, that firms operating in compliance with their environmental permit can still be found to be causing a nuisance and can be sued.

Simon Tilling, an associate at law firm Burges Salmon, said: “The law is quite distinct between the environmental protection it can offer through regulatory regimes and the common law right for individuals to be compensated or get an injunction if you have emissions from an industrial site affecting their property.

“Organisations need to take neighbour complaints seriously and to investigate them, whether or not they are in compliance with their permit. Early dialogue with neighbours on these issues is better than very expensive litigation in the long run.”

It’s estimated that the Biffa court case has run up costs of £6 million and in his judgment, the Court of Appeal’s Lord Justice Carnwath stated that the case was: “a sad illustration of what can happen when apparently unlimited resources – financial and intellectual – are thrown at an apparently simple dispute such as one about nuisance by escaping smells.”

The original nuisance claims brought against Biffa by 152 residents near its Westmill landfill site in Hertfordshire, is now likely to be referred back to the High Court to decide whether the odours from the site over a six-year period do constitute nuisance.

In a statement responding to the ruling, Biffa confirmed that it did not believe the Court of Appeal judgment brought the case to a close.


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