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Appeal judges restore traditional approach to nuisance

Common law 'best when it is simple', Carnwath LJ says

26 March 2012

The Court of Appeal has rejected what Lord Justice Carnwath described as an “elaborate reinterpretation” by the High Court of the traditional approach to the law of nuisance.

Residents on the Vicarage Estate in Ware, Hertfordshire, complained of bad smells from a nearby landfill site and launched a group action against waste disposal company Biffa, based mainly on private nuisance (see solicitorsjournal.com, 26 April 2011).

At first instance Mr Justice Coulson said the nuisance claims were bound to fail where the operator complied with its permit obligations and was not negligent.

Giving the leading judgment in Barr v Biffa [2012] EWCA Civ 312 at the Court of Appeal, Carnwath LJ disagreed.

Private nuisance cases “conventionally turn on issues of fact”, to be decided in accordance with “well-settled principles of law”, he said.

It was unfortunate, Carnwath LJ continued, that Coulson J had instead embarked on an “elaborate reinterpretation of the law of nuisance” since the common law was “best when it is simple”.

The court heard that the Vicarage Estate, which was made up of 1,500 homes, was built in the late 1970s and early 1980s, some of it on previously tipped land.

Carnwath LJ referred to Lord Justice Jackson’s recent ruling on nuisance in Coventry v Lawrence and Shields [2012] EWCA Civ 26, a case involving noise from motor-racing tracks (see solicitorsjournal.com, 28 February 2012).

He said there was “no parallel” between the planning permissions in that case, granted years before, and the waste permit in Biffa where there were no consultations with residents on the likely impact of the waste permit on residents in terms of odour, nor any balancing of the conflicting interests of residents and public interest in landfilling.

The most important issue, the senior judge said, was to bring “these unfortunate proceedings” to an end, whether by remitting the case to the High Court or by mediation.

He concluded: “This case is 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 fundamental principles of law were settled by the end of the 19th century and have remained resilient and effective since then. Isolated statements in individual cases, at whatever level, are of limited value unless they have been absorbed into the stream of accepted authority.

“Parliament may alter by statute, or the higher courts by reinterpretation of the old cases. But there is a salutary presumption that neither does so without making their intention clear.

“Parliament may also enact parallel systems of regulatory control, but, unless it says otherwise, the common law rights and duties remain unaffected,” Carnwath LJ said.

“The judge was faced with a very difficult task, given the way the case was developed and presented on both sides. But he should not have allowed himself to be deflected from his ordinary task of assessing the evidence against the established legal principles and exercising his judgement on the facts of the case.”

Lord Justice Carnwath allowed the appeal by the residents and dismissed Biffa’s cross-appeal. Lord Justice Patten and Lady Justice Arden agreed.

A spokesman for Biffa said the case was likely to be remitted back to the High Court for a decision as to how many of the 152 individual residents’ claims succeed on the facts and over what period by reference to the Court of Appeal’s legal test.

He added that the company “believes that the judgment does not bring the case to a close” and further comment would be inappropriate.

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