Mr Barr brought a “class action” on behalf of himself and 151 other householders who lived near the Westmill tip in Hertfordshire. For 5 years they complained about the smell from Biffa’s waste tipping operations. The High Court Judge (Peter Coulson, TCC) agreed with this approach and also decided that when the planning permission and waste management permits were granted, the “essential character” of the neighbourhood had changed so that local residents could no longer apply the standards of a residential area in establishing what was or what was not permissible in terms of local conditions. The Claimant group appealed.
The Court of Appeal held the law of private nuisance protects property owners, against interference in the use and enjoyment of their property. It has always been a question of degree on the facts of the case whether that interference is sufficiently serious to constitute an actionable “private nuisance”.
The character of the neighbourhood is relevant (but the housing estate was there before the tip). It must also be shown to be “real interference with the comfort or convenience of living, according to the standards of the average man”.
The public benefit of the offending activity is not a defence. Having statutory authority to carry out the activity is a defence, but only if the operator can persuade the Court that the authorised activity will inevitably involve a nuisance, even if every reasonable precaution is proven to have been taken. Biffa had not passed these tests and was guilty of the tort of private nuisance.
The Court of Appeal also reasserted the fundamental principle that a complainant in private nuisance does not need to prove negligence against the Defendant merely the fact of the offending activity, and the adverse consequences for the landowner. Private nuisance is a tort based on strict liability.
As more and more of our countryside is covered by housing, residential occupation is increasingly clashing with industrial and commercial activity. This activity in turn is more heavily regulated by the state than ever before. Business people understandably argue that if they comply with the regulatory regime, they should not have to worry about anything else. The Court of Appeal has firmly killed that argument. If A carries on an activity which unreasonably interferes with B’s use or enjoyment of his land, he can expect to pay damages or face an injunction.
N.B. Biffa fought this case very hard, every possible technical point was taken, there were 4 separate finds in the High Court before the matter went to the Court of Appeal . Everything was done to deter the Claimants. In turn they were only able to go forward because their lawyers agreed a no win no fee arrangement who took out After the Event Insurance (“ATE”).