Permits and the common law of nuisance

The case of Barr v. Biffa Waste Services[1] is a recent case which specifically adjudicates on both the interplay between environmental permits and the common law of nuisance and the application of statutory authority as a defence for nuisance. The pursuers were seeking damages for the odour which was emanating from the landfill site operated by the defendants, the pursuers basing this claim in private nuisance. Nuisance, under the common law, is when an activity from one party unreasonably prevents the other from enjoying or using their property.

The law of nuisance only applies to cases where the activity complained of is unreasonable; the reasonable use of land cannot be subject to an action under nuisance. [3] The reasonableness of an action is judged from the pursuer’s perspective, and takes into account factors such as the character of the neighbourhood. However, the courts recognise that both environmental and planning law can play a role in defining nuisance. [4] Part of the significance of this case is the non-application of statutory authority, which follows previous case law and the principles of public policy.

Further, the effect of the judgement on the interplay between the common law and legislation marks this case as a significant milestone for environmental law. Statutory Authority It is recognised in case law that if an act which causes an actionable nuisance is expressly or impliedly authorised by Parliament via statute it provides immunity against actions based in nuisance. [5] However, this immunity is not absolute; if the act authorised has been carried out negligently a successful action can be brought against the negligent person.

It is required to either be expressly referred to in statute[7] or that the activity complained of is part of an obligation as provided by statute[8] to benefit from this defence. This defence does not extend to planning permissions granted by an authority under statutory powers because the authority’s delegated power does not necessarily imply the ability to abolish or limit rights under the common law as Parliament can. [9] Despite this, until the case of Barr there was no clear judgement on the statutory authority of environmental permits.

It was held that Biffa Waste did not have statutory authority as in Marcic because Biffa Waste could operate as a purely commercial organisation, unlike Thames Water who was obliged to accept sewage from anyone in their area. [10] Another distinguishing factor is that Biffa Waste did not have any obligations under any statute; the relevant legislation creates obligations for the UK government only and not Biffa Waste specifically.

[11] In comparing the two cases Biffa Waste was found to be a commercial provider of a public service working under a “supervisory regulatory regime”[12] as opposed to an authority obliged to accept obligations provided by statute, and thus could not be said to be authorised by statute. The reasoning behind this judgement is influenced by the public policy considerations governing the principle of statutory authority. The purpose of statutory authority is to enable Parliament to provide services it sees necessary in an appropriate form without nuisance claims prohibiting the process.

Organisations which undertake this statutory duty therefore have the public interest at the heart of their actions. Organisations under a supervisory regulatory regime differ in that they are able to act against the public interest for commercial gain. It would go against public policy to protect a commercial organisation that can run counter to the interest of the general public. Another reason for the refusal to extend the defence is that doing so would extend the scope of the defence to organisations which are unsuitable for protection,[13] which inappropriately blurs the definition between private organisations and Government bodies.

The significance of Barr in this area is that through its non-application of the doctrine of statutory authority Barr has further explored and defined the criteria required to lead a successful defence under statutory authority. By excluding Biffa Waste on these grounds Barr has developed the law in such a way that the doctrine of statutory authority still protects those undertaking statutory obligations while excluding those merely providing a voluntary service on a commercial basis, thus following the policy considerations behind the doctrine. Reasonable User

Case law also recognises that it is a defence in nuisance if the action complained of is “necessary for the common and ordinary use and occupation of land” and done conveniently. [14] This is based on the principal of give and take, and results in the defence being based on the reasonable user. [15] Both nuisance and the concept of reasonable user are defined with regard to the particular circumstances, such as the character of the neighbourhood. [16] The character of the neighbourhood is an important factor in nuisance because it can change due to certain events, such as the granting of planning permission.

[17] This can alter the standard of reasonable user which nuisance is judged against,[18] depending on the particular circumstances of the planning permission. [19] The central question in Barr was if the governing legislation,[20] the terms of the permit granted to Biffa Waste and the earlier case law mean that Biffa Waste’s use of the land within the terms of the permit made Biffa Waste a reasonable user. The judge started with the “first principles”;[21] potential criminal liability and potential liability under statutory nuisance.

Both potential liabilities have defences which Biffa Waste could rely on which does not exist under common law nuisance. [22] If liability under nuisance applied the result would be Biffa Waste being liable under the more generalised common law, despite complying with the more detailed provisions of both the legislation and the permit. The judge held that liability under common law nuisance had to conform to the standard of liability under statute in order to prevent the statute becoming redundant.

This follows previous case law, which notes the importance of a consistent, legislative approach to environmental law and that the common law should not negatively impact on the protection granted. [24] The reasoning behind the primacy of the statute was also applied to the terms of the permit itself. The permit granted to Biffa Waste explicitly states that in some situations the emission of odours was inevitable, and that it was Biffa Waste’s duty to minimise the odour as opposed to preventing the odour from escaping.

The Environmental Agency used their expertise in deciding to include this provision, balancing the interests of both individuals likely to be affected and the interests of the general public. This balancing exercise would be made null if liability under nuisance could be established without negligence, as it would be possible for companies to comply with the detailed permit to then be liable for an inevitable nuisance which was expressly allowed by the permit.

This result of this judgement is that operators acting within the terms of their environmental permits are classified as reasonable users, and are thus protected from claims based on nuisance. This differs from the previous case law regarding planning permission, a similar method of regulation. [26] The judge distinguished these cases on the grounds that planning permission is not as detailed or as strictly enforced as environmental permits.

[27] The public policy behind this reasoning is that the exhaustive balancing exercise carried out by the authority would be made redundant if the interests of private individuals could override the considerations of the authority. [28] However, there has been some critique on the reduction of common law liability on this ground. Maria Lee notes that it is possible for both levels to liability to operate in tandem, provided that they address different issues;[29] the legislation dealing with the protection of the environment and the common law dealing with individual private rights.

This would theoretically lead to a fuller spectrum of rights and considerations being protected by the court. While this is true to some extent, this assumes that both issues can act independently of each other. This is not the case; if one of the grounds of liability is easier to base a successful action on then the issue it represents will be disproportionately represented due to the nature of litigation. The reasoning in Barr suggests that liability under statute and the issue it aims to resolve should either match or take precedence of that of the common law.

This is justifiable, as the authority has the expertise to balance every factor including the private rights of individuals, as opposed to the court which has limited knowledge and cannot take into account the full spectrum of factors while protecting private rights. The effect the judgement has on environmental permits has also raised some concerns. Maria Lee comments that the judgement is vague on how the detail of environment permits impacts upon the protection it grants from nuisance claims, and it is implied that using the judgement in Barr in such a wide manner is not an appropriate method in applying reasonable use in nuisance cases.

Distinguishing environmental permits from planning permission in this way also assumes that the detail in the terms provided reflects the balancing process of the different authorities. Both the Environmental Agency and the Local Authority balance factors such as the general public interest and the private rights of affected individuals, and it seems questionable to protect the “careful balancing act between competing interests”[31] for environmental permits while not extending the same protection to planning permission.

However, it can be viewed that the greater detail in environmental permits obliges operators to show greater respect for the factors used in the balancing process while the less detailed terms in planning permissions do not carry the same obligation. An additional issue is that the judgment assumes that any negligent action will breach the terms of the permit. Commentators have suggested that it is possible for operators to create a nuisance through negligence and still be within the terms of their permit. [32] This could lead to contradictions in the law, which prevents the level of consistency that Barr was aiming for.

[33] The judgement in Barr also recognised that in this case the character of the neighbourhood was rebalanced to its original residential-light industrial character, which in turn changed the standard by which nuisance is judged. [34] This is in accordance with the previous case law[35] and follows naturally from these judgements, as the extension of this principle to allow environmental permits to change the character of the neighbourhood treats all authorities which use power delegated from Parliament in a consistent manner.

This is also supported by public policy: it is within the interest of the general public that the authority which has the necessary expertise and information to make the appropriate decision cannot be overruled for the interests of one individual. The difference between this defence against nuisance and the absolute defence of following an environmental permit is that it does not inappropriately distinguish between sources of permits. The significance of Barr is that it extends the law relating to the concept of reasonable user and environmental permits beyond its original limitations.

The wide approach taken in allowing any activity contained within the permit to be classed as reasonable and the resulting immunity to nuisance claims without negligence limits the ability of the common law to play any part in environmental protection. While the basis of broadening the concept of reasonable user through environmental permits is suspect, the extension of the instruments which can change the character of the neighbourhood and its effect on the common law is more appropriate in broadening the doctrines which represent the public interest.