Derrick Barr and Others v Biffa Waste Services Ltd [No 3]

JurisdictionEngland & Wales
CourtQueen's Bench Division (Technology and Construction Court)
JudgeThe Honourable Mr Justice Coulson
Judgment Date19 April 2011
Neutral Citation[2011] EWHC 1003 (TCC)
Docket NumberCase No: HT-09-165
Date19 April 2011

[2011] EWHC 1003 (TCC)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

TECHNOLOGY AND CONSTRUCTION COURT

Westmill Landfill Group Litigation

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Coulson

Case No: HT-09-165

Between:
Derrick Barr and Others
Claimants
and
Biffa Waste Services Limited [No 3]
Defendant

Mr Nigel Cooksley QC and Mr John Bates (instructed by Hugh James) for the Claimants

Mr Ian Croxford QC and Mr Thomas De La Mare (instructed by Nabarro) for the Defendant

Hearing Dates: 16, 17, 18, 19, 22, 23, 24, 25, 29 & 30 November, 1, 2, 6, 7, 13, 14, 15 & 16 December 2010

The Honourable Mr Justice Coulson

A INTRODUCTION

1

This is a group action, brought by 152 households on the Vicarage Estate in Ware in Hertfordshire, seeking damages in nuisance against the Defendant ("Biffa"). The complaints are centred on the odour from pre-treated waste emanating from Biffa's landfill site known as Westmill 2, located immediately to the north-west of the Vicarage Estate, on the other side of the A10. Nuisance is denied and there are a potentially large number of factual and legal issues which arise for determination. Biffa's principal defence is one of statutory authority; namely that the relevant legislation and the terms of the permit granted to them by the Environment Agency (" EA") mean that they cannot in law be liable to the claimants in nuisance.

2

In the alternative, Biffa rely on the legislation, the detailed terms of their permit and the recent nuisance cases to found a defence of reasonable user of land. This defence accepts that Biffa could be liable to the claimants in nuisance, but only if there was a sustainable argument that the nuisance arose out of negligence on their part. They maintain that, in the absence of any allegation of negligence, or any alleged failure to use best available techniques, no claim in nuisance can arise out of their lawful carrying out of the landfill activities in accordance with the permit.

3

It is therefore right to note at the outset that this dispute involves 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.

4

In order to properly manage the presentation and trial of 152 separate claims, it was decided that this trial would concentrate on the claims made by a pre-selected group of 30 claimants. Those 30 lead claimants, including Mr Barr, were selected jointly by the parties in an attempt to provide a range of residents 1. 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.

5

Since claims in nuisance are fact-specific, it has not been possible for the parties to agree that any findings in relation to the 30 lead claimants will automatically be binding upon the remaining claimants although, of course, my rulings on the law will be binding on those other claimants. In addition, the parties are confident that, whilst the claims of the remaining claimants will not have been formally decided, it will be apparent from this judgment what the likely result would be for every other claimant. I share that confidence, for reasons which will become apparent below.

6

Biffa have made it plain that they regard this Group Litigation as something of a test case. They are a large waste disposal company, handling about 10–12% of the UK's industrial, commercial and domestic waste, and operate hundreds of sites across the UK. They are therefore anxious to obtain at least some degree of certainty as to the nature and scope of their obligations and liabilities in circumstances such as these. Whilst I am sympathetic to that desire, there can be no doubt that the fact-specific

nature of nuisance claims means that they are not very promising candidates for "test case" status. That said, the legal issues (and, in particular, the issues as to statutory authority and reasonable user referred to above) do seem to me to be of wider significance and application.
7

I deal with the issues that have arisen between the parties in the following way. In Section B below, I set out the chronology of the relevant events and make general findings of fact. At Section C, I then address the general principles of nuisance, and the specific principles applicable in odour cases such as this. In Section D, I set out some of the relevant legislation, emanating both from the European Community and the United Kingdom, and in Section E I summarise the human rights position in so far as it is relevant to the claimants' claims.

8

Thereafter, at Section F below, I consider the issues of law arising out of Biffa's principal defence of statutory authority and whether the legislation provides Biffa with a complete defence to the nuisance claims. At Section G, I deal with whether or not, in principle, the claimants can make a valid claim in nuisance, without concomitant allegations of negligence, by considering the issues of reasonable user and the character of the locality. At Section H, I deal with a mixed issue of principle and fact, namely the fixing of a threshold or starting point as to odour levels and frequency which might reasonably be regarded as acceptable, but beyond which it could be said that nuisance has occurred. At Section I, I analyse and reach conclusions of fact in relation to the claims by the 30 lead claimants. I address quantum in Section J. At Section K, I make some short observations relating to the contrasting positions of the claimants, Biffa, and the EA. There is a short summary of my conclusions at Section L.

9

Before embarking on that exercise, it is necessary to make the limited scope of some of the issues plain from the outset. The original claims made by the 30 lead claimants contained general allegations of negligence, as well as nuisance. The negligence claims were subsequently amended to introduce much more extensive allegations of default, which were themselves based on the considerable disclosure which Biffa had provided relating to the operation of the Westmill 2 site. However, at the pre-trial review on 8 October 2010, the claimants abandoned each and every one of those allegations of negligence. Accordingly, I am not asked to make, and do not make, any findings as to any alleged deficiencies in Biffa's operation of the Westmill 2 site.

10

In similar vein, the claimants have said in clear terms that they "do not allege any breaches of permit and do not seek to persuade the court that any particular instance was in breach of the permit" 2. Accordingly, it is no part of the claimants' case to seek to rely on any breaches of the terms of the permit – whether alleged or proved in the Magistrates' Court or otherwise – in support of their claim for nuisance.

11

Thus the claimants' claims in these proceedings are based on simple nuisance only, and I must assume that Biffa were neither in breach of the conditions of the permit (save in one limited respect, dealt with at paragraph 118 below), nor negligent. As will become apparent from the following Sections of this Judgment, these express and self-imposed limitations on the claimants' claims are of considerable significance.

B CHRONOLOGY

B1 The Locality and the Site

12

The Vicarage Estate is a medium-sized estate of domestic dwellings, mainly houses, tucked in below the southbound carriageway of the A10, on the north-western edge of Ware. It was built largely in the late 70s and early 80s. Part of the Estate used to be a gravel quarry, which subsequently became a waste tip, although those operations had ceased before the construction of the Estate itself. Generally, the area south of the A10 has been used for light industrial/quarrying work, together with an increasing residential use. On the other (northern) side of the A10, the land has also been used for a mixed variety of activities, including agriculture, light industrial, quarrying, landfilling and a smaller amount of residential use.

13

As noted above, the Estate has, for the purposes of these proceedings, been divided into three separate zones. Zone 1 is closest to the A10, but it is protected from the worst of the traffic pollution by a large bank which is covered in trees and shrubs. An old bridleway, Poles Lane, runs north/south through the Estate, and through Zone 1, along a tunnel underneath the A10, and then up the right-hand or easterly edge of Westmill 2, past the Hanbury Manor Hotel and Country Club.

14

Westmill 2 is a large site, running to about 65 acres, immediately to the north of the A10, just past the turn-off for Ware. Like many other landfill sites in the UK, Westmill 2 is a quarry owned and operated by CEMEX. Biffa now have the tipping rights at Westmill 2 and fill the voids left by the extraction of sand and sandstone with pre-treated waste. The landfilling is carried out in cells, which comprise...

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