Barr v Biffa Waste Services Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 19 March 2012 |
| Neutral Citation | [2012] EWCA Civ 312 |
| Docket Number | Case No: A1/2011/1250 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 2012 |
[2012] EWCA Civ 312
Lady Justice Arden
Lord Justice Carnwath
and
Lord Justice Patten
Case No: A1/2011/1250
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
TECHNOLOGY & CONSTRUCTION COURT
MR JUSTICE COULSON
HT09165
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Tromans QC, John Bates & Catherine Dobson (instructed by Hugh James) for the Appellants
Ian Croxford QC & Thomas De La Mare (instructed by Nabarro LLP) for the Respondent
Hearing dates: Tuesday 24th & Wednesday 25th January, 2012
Carnwath LJ:
Introduction
The issues
This is an appeal from the judgment of Coulson J given on 19 th April 2011. He dismissed claims for nuisance by smell from a waste tip operated by Biffa in Ware, Hertfordshire. The case took the form of a group action brought by 152 households on the nearby Vicarage Estate, of whom 30 were selected as lead claimants, taken from three defined "zones" within the estate.
Such cases conventionally turn on issues of fact, to be decided in accordance with well-settled principles of law. This case was seen by Biffa as a test case, having regard to its major interests in waste-tipping, and its wish to achieve a degree of certainty as to its responsibilities in similar cases. It developed into a prolonged and very expensive battle, involving what the judge described as a "clash between two potentially irreconcilable principles":
"On the one hand, the claimants contend that they have inalienable common law rights in nuisance which have not been affected, let alone excluded, by the relevant environmental and landfill legislation and the detailed terms of Biffa's permit; on the other hand, Biffa submit that it would be unfair and unrealistic if the cascade of legislation and the terms of their permit were ignored, so that they could comply with all their numerous obligations and the detailed provisions of their permit, and still find themselves liable to the claimants in nuisance, as if the legislation and the permit did not exist." (para 3)
At the end of a massive (590 paragraphs) and intricately reasoned judgment, the judge came down in favour of Biffa on the legal issues, and dismissed all the individual claims.
At first sight it is hard to understand how the process of resolving this narrow issue of law, and applying the result to the facts, became so long, hard-fought and expensive. As will be seen, the judge criticised both parties, Biffa for adopting an unnecessarily aggressive even "bullying" approach, following their conviction in October 2007, and extending into the trial; and the claimants for the complications resulting from the "group litigation policy" adopted by their solicitors, Hugh James, which in his view had resulted in the arguable claims of a few in effect being swamped by a mass of less meritorious claims.
For us the question is whether the judge was right in law on the principal issues. If he was, the appeal fails. If he was not, then his factual assessment of at least some of the individual claims was made on the wrong basis. It will be necessary to consider which of the claims, if any, can nonetheless be ruled out even disregarding the legal errors. For the remainder the case will have to be remitted to an appropriate forum for further review on the correct basis.
I have considerable sympathy for the judge faced with a case which, for the reasons he outlined, had grown out of all proportions to its subject-matter (more appropriate, as he observed, to the County Court). However, in their essential features, the law and its application to the facts could, and in my view should, have been seen as relatively straightforward. It is unfortunate that the judge was persuaded to undertake what became an elaborate reinterpretation of the law of nuisance, involving citation of some 45 authorities (rising to an agreed list of 60 authorities in this court). The common law is at its best when it is simple.
In the interests of clarity, the remainder of this judgment is divided into two parts. Part I is the main judgment, in which I give an outline of the facts and relevant legal principles, and my views on what I see as the essential issues in the case, including the individual claims. Part II is a fuller analysis of the judge's reasoning and my detailed response to it. For the most part Biffa's submissions follow and support the judge's reasons (except in respect of the cross-appeal). I hope I will be forgiven therefore, if, except where indicated, I do not deal with them separately.
PART I MAIN JUDGMENT
Factual background
The Westmill site lies immediately to the north-west of the A10 road. The Vicarage Estate ("the Estate") lies immediately to the south-east of the road. It includes some 1,500 homes. There is a history of quarrying and backfilling in this area. The Estate was built in the late 1970s and early 1980s, some of it on previously tipped land.
The 30 lead claimants, including Mr Barr, were selected jointly by the parties to provide a range of residents:
"They are principally based in Zone 1, which is the part of the Vicarage Estate which is closest to Westmill 2, and includes Dovedale, The Larches, Wheatsheaf Drive, The Hawthorns and Greyfriars. The remaining lead claimants come from Zone 2 (which is to the east of Zone 1 and therefore further away from the landfill site), and Zone 3 which lies to the south of Zones 1 and 2. Parts of Zone 3 are the furthest of all from Westmill 2 and, because of the prevailing winds, even those parts which were closer to the site were less affected by odour than Zones 1 and 2." (para 4)
Planning permission for tipping of industrial and household waste at Westmill was granted by the district council in April 1980. Tipping on the first part, Westmill 1, began in 1984, and seems to have continued without controversy until spring 2004, when it stopped receiving waste. A Waste Management permit for tipping of "pre-treated waste" at Westmill 2 was granted by the Environment Agency on 7 th April 2003. The permit was transferred to Biffa in April 2004.
The permit was subject to detailed conditions, which included requirements for compliance with a defined Working Plan, and measures to "control, minimise and monitor" odours. Clause 2.6.12 provided:
"There shall be no odours emitted from the Permitted Installation at levels as are likely to cause pollution of the environment or harm to human health or serious detriment to the amenity of the locality outside the Permitted Installation boundary, as perceived by an authorised officer of the Agency."
It is convenient to note in parenthesis that the condition was amended in February 2009 to read:
"Emissions from the activities shall be free from odour at levels likely to cause pollution outside the site, as perceived by an authorised officer of the Agency, unless the operator has used all appropriate measures, including but not limited to those specified in any approved odour site management plan, to prevent or where that is not practicable to minimise the odour."
The judge commented that "the change to an express 'reasonable care and skill' test (was) much more in keeping with the relevant legislation" (para 171).
Going back to the original permit, the Working Plan was at this stage directed to "Landfill Gas Odour Monitoring" (para 25). "Curiously" (as the judge observed) it was not until December 2004, some months after the first complaints, that an Odour Management Plan was prepared, addressing the particular odour problems then experienced. He thought it "unfortunate" that Biffa had not been required to "anticipate and address them" in the original working plan (para 37).
The tipping was to be carried out in "cells". The judge noted (para 14) that Cell 1 was closest to the A10 and therefore closest to the Vicarage Estate. Next, to the north-east, came Cells 2, 3 and 4. The remaining Cells, from Cell 5 onwards, were further away. At the hearing in this court, Biffa provided some more detailed information, which showed that the closest to the Estate, after Cell 1, were cells 2 and 4a. The order of tipping of the closest cells was:
i) Cell 1: July 2004 – September 2005
ii) Cell 2: September – October 2006
iii) Cell 3: October 2006 – October 2007
iv) Cell 4a: September 2007-February 2009
When considering the pattern of complaints, it is significant that tipping started in the area closest to the Estate, moved away during 2006 and 2007, but moved closer again in late 2007 and 2008.
Waste disposal began at Westmill 2 in July 2004. Within one week, complaints began. In late August 2004, particularly over the bank holiday weekend, the odours were very strong. One resident described the smell over that weekend as –
"… like a cross between a dustbin lorry and rotten fruit and veg. It was a very bad smell, almost like you hadn't emptied your bin in months" (para 27)
The principal cause of the problem was not in doubt. An important change as compared to the tipping at Westmill 1 was that this waste was "pre-treated". The judge explained:
"In practice, this meant that the waste received at Westmill 2 would have been first gathered at transfer stations in order that certain types of waste, such as waste that could be recycled, had been removed. Thus the waste coming to Westmill 2 was not recyclable. That meant that it was likely to be more organic and, because of the delays in getting it to site, more odorous. The evidence was that Westmill 2 was the first, or one of the first, landfill sites in the country to accept pre-treated...
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