Comply and be damned?
6th April, 2012
Environmental compliance, although a consideration, will not save you from the common law.
The Court of Appeal held in the case of Barr and others v. Biffa Waste Services Ltd  EWCA Civ 312 that it is still possible for an operator of a waste transfer site to be liable for a nuisance caused by an activity even if the operator is operating in compliance with its permit and without negligence.
Local residents in Ware, Hertfordshire, pursued an action in private nuisance against Biffa Waste Services following the emission of odours from its landfill site. The group claimed that the odour emissions amounted to private nuisance. Biffa, however, contended that it could not be liable in private nuisance because it conformed with the conditions in its environmental permit and the relevant EU and national legislation and was therefore, effectively, statutorily immune from a private nuisance action. .
The Court accepted the group’s arguments that the test for nuisance remained unaltered i.e. was there some undue interference preventing those neighbouring the site from a comfortable and reasonable enjoyment of their land. Biffa’s “implied statutory immunity” argument was rejected outright.
This judgment will be of concern to those in the waste management industry given that it is now clear that compliance with permit conditions is not, in all cases, enough to avoid local problems. However, it should be noted that the emissions from the landfill site did take Biffa, and the Environment Agency, by surprise. The odours continued for years and the Environment Agency had actually prosecuted Biffa before this action was issued.
It is interesting to compare this decision with the Court of Appeal’s recent decision in Coventry (t/a RDC Promotions) and another v Lawrence and Others  EWCA Civ 26. Although this case concerned noise, planning permission was recognised as restricting the right to succeed with a common law nuisance claim. Whilst this does seem at odds with Biffa, the one clear difference is that in RDC Promotions the planning permission allowed a significant change to the nature of the local area by introducing a motorsport stadium whereas in Biffa’s case the site had been operating for some considerable time and the new environmental permit only allowed new and more oderous waste to be deposited on the site.. . Perhaps Lord Justice Carnwath’s comment that “Parliament may … enact parallel systems of regulatory control; but, unless it says otherwise, the common law rights and duties remain unaffected” makes it clear that there is no need for the common law and statutory authority to march “in step” which is a continuing cause for concern for those enterprises that are regulated under statutory schemes yet can still find themselves being pursued under common law. Perhaps the time is now right for the government to rationalise the law in this area so that such business have a “one-stop shop” of statutory control to make the system more transparent, more understandable and more enforceable.
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