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Waste company accused of 'aggressive attitude' to odour nuisance claimants

26 April 2011

A High Court judge has accused a waste disposal company of taking an “unnecessarily aggressive attitude” to hundreds of people on a housing estate in Hertfordshire who sued for odour nuisance from a landfill site.

Mr Justice Coulson said the claimants were “emphatically not part of any tabloid ‘compensation culture’” and said Biffa Waste Services took an “unnecessarily aggressive attitude” to anyone who threatened their commercial interests.

Delivering judgment in Derrick Barr and others v Biffa Waste Services (No.3) [2011] EWHC 1003 (TCC), Coulson J said this approach “underpinned the hostile cross-examination of many of the claimants”, which prolonged the trial.

However, a spokesman for Biffa said any comments about the company’s approach to dealing with the Environment Agency or local residents needed to be considered “against the backdrop of Biffa having to defend a large-scale group action alleging negligence, private nuisance and the threat of an injunction to close the site”.

He went on: “It has always been common ground that odour will be an inevitable by-product of landfill operations.

“The key legal issue before the court was whether Biffa should be liable for odour escapes even if it was taking all reasonable precautions to control odour and complying fully with its relevant permit obligations.

“The court agreed with Biffa that it should not be liable unless it was operating the site negligently or in breach of permit.”

Coulson J said residents on the Vicarage Estate in Ware were seeking to assert their rights because nobody else, “certainly not” Biffa or the Environment Agency, “seemed to pay more than lip service to them”.

He said the Environment Agency “should have been much more forceful with Biffa”; for example, by telling the company it could only operate the site between April and September if it worked at low levels.

However, Coulson J concluded that the carrying out of permitted activities of waste disposal, performed in accordance with the terms of the permit and without negligence, amounted to a reasonable user of the land.

“In those circumstances, while claims in nuisance that involved allegations of negligence against Biffa would have been open to the claimants, claims in nuisance alone were not. Since the claims which proceeded to trial were in nuisance alone, they were bound to fail.”

Coulson J said that even if he was wrong in principle on this point, the claimants’ failure to identify a threshold or starting position and the absence of “anything like comprehensive contemporaneous records and complaints” meant that 23 out of the 30 claims were doomed to fail.

He went on: “The claims of the vast majority of the claimants, those who had done little or nothing over the relevant period, were always likely to fail on the facts.

“Yet it has been the participation of this silent majority which has complicated and expanded these proceedings (which could otherwise have been dealt with in the county court), to no obvious advantage, certainly not to the seven claimants who were in an entirely different position on the facts.

“The group litigation has, in the end, not been of any benefit to anyone at all except the lawyers.”

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