Earlier this year, the Court of Appeal handed down two important judgments on the environmental impacts of commercial enterprises on their neighbours. The first case, Coventry (t/a RDC Promotions) & anor v Lawrence & ors , concerned noise from a racing circuit and the second case, Barr & ors v Biffa Waste Services Ltd , concerned odours from a landfill.
The High Court decision in Barr v Biffa received a great deal of attention because it introduced the possibility that compliance with an environmental permit could provide evidence that the permitted activity was not a nuisance. We discussed the decision in The In-House Lawyer 192. However, the Court of Appeal has rejected that line of argument, restoring the position as it had been commonly understood prior to the High Court decision and emphasising that the ‘19th century principles for the most part remain valid’.
These two cases are of importance for a number of reasons. First, and most importantly, the claims had the potential to have a significant impact on the commercial viability of the operations in question and demonstrate why commercial enterprises need to take the issue seriously. Secondly, despite myriad environmental regulations from Brussels, Westminster and the devolved legislatures over the past 25 years or so, the foundation of these claims was a branch of the law of tort that has been around since the industrial revolution. Thirdly, despite the longevity of this branch of the law, it is clear that there is still a great deal of uncertainty within business about the scope of the law and its application to any given set of facts.
This article provides a timely reminder of the principles of the law of nuisance for those in sectors where activities can impact on neighbouring land use, including, but by no means limited to, manufacturing, energy, waste, utilities, food, chemicals, petrochemicals, pharmaceuticals, transport, leisure, recreation, construction and engineering.
THE UNCERTAIN LINE BETWEEN TOLERABLE ANNOYANCE AND ACTIONABLE NUISANCE
Nuisance has been described as a condition or activity that unduly interferes with the use or enjoyment of land. The law acknowledges that, in modern life, there must be an element of ‘give and take’ between neighbouring occupiers of land and a degree of interference must be tolerated.
The reason that these cases end up in court is that the line between an annoyance that must be tolerated and an actionable nuisance is not at all clear cut. Ultimately, it is for the courts to decide where the boundary lies. This is not always easy to predict, as can be seen from these two recent Court of Appeal decisions. In Coventry v Lawrence, the High Court held that the noise from motor racing was a nuisance but the Court of Appeal held that it was part of the character of the area. Conversely, in Barr v Biffa, the High Court held that odour from a landfill was not a nuisance because the waste operation was carried out in accordance with an environmental permit and the grant of the permit changed the character of the area while the Court of Appeal held that the High Court decision was wrong at law and that at least some of the claimants appeared to have a valid claim.
The reason that different courts can come to different conclusions is that the ‘give and take’ nature of the law of nuisance is essentially a balancing exercise. It is sometimes referred to as the ‘reasonable user’ test but the Court of Appeal in Barr v Biffa was eager to emphasise that the word ‘reasonable’ can sometimes cause unnecessary confusion. The Court of Appeal thought that the position was correctly stated in Weir An Introduction to Tort Law (page 160):
‘Reasonableness is a relevant consideration… but the question is neither what is reasonable in the eyes of the defendant or even the claimant (for one cannot by being unduly sensitive constrain one’s neighbour’s freedoms), but what objectively a normal person would find it reasonable to have to put up with.’
The courts must take into account a multitude of factors such as the character of the neighbourhood and the intensity, frequency and duration of the interference, when deciding whether an activity is an actionable nuisance or simply an annoyance that must be tolerated.
One factor that is not relevant is whether or not the activity existed when the claimants moved into the area. Quite simply, it is no defence to a claim to say ‘but I was here first’. The leading case on this is Miller v Jackson  in which County Durham residents Mr and Mrs Miller claimed damages and an injunction against the village cricket club to prevent cricket balls reaching their property when the players hit sixes. The club had been playing at the location since 1905 when the surrounding area was agricultural fields. The Miller’s house was constructed in the 1970s. The Court of Appeal held that the club was liable in nuisance and awarded damages to the Millers (although the court refused an injunction on the grounds that the community benefit of village cricket outweighed the hardship suffered by the new residents).
THE COURT OF APPEAL DECISION IN BARR V BIFFA
The Barr v Biffa case has been watched with interest. Biffa fought the litigation as a test case in the hope of establishing some certainty for itself and others in industry on the interaction between the law of nuisance and environmental permitting. Biffa argued that a permit provided statutory authority to commit nuisances that necessarily followed from the permitted activities, or alternatively, that the existence of the permit was evidence of ‘reasonable user’ and therefore evidence that there was no nuisance at law.
At first instance, the court rejected the argument that the permit provided statutory authority to commit a nuisance. However, it re-examined the principle of ‘reasonable user’, noting that the common law of nuisance ‘must march in step’ with the pace of change of environmental legislation and concluded that, in the absence of evidence of negligence or breach of permit, the existence of an environmental permit was evidence that the activities carried out under the permit constituted ‘reasonable user’ and so the claim in nuisance failed. The court also held that the environmental permit changed the character of the neighbourhood, and that in all nuisance cases the court must identify a threshold between interference that is reasonable and interference that steps over the line to become a nuisance. The decision was warmly received by many in industry as providing welcome certainty in neighbourly disputes arising from onsite operations.
However, the Court of Appeal overturned the first instance decision. The court held that the ‘reasonable user’ test was no more than a different way of describing old principles and should not be reinterpreted to ‘march in step’ with environmental regulation and, as such, the existence of an environmental permit was not in itself enough to defeat a common law claim in nuisance. Further, the permit did not provide authority to commit nuisances, and the grant of the permit did not change the character of an area. The Court also rejected the suggestion that it was required to establish a threshold level for nuisance in each case.
CARNWATH LJ’S RULES OF NUISANCE
Carnwath LJ, giving the leading judgment on behalf of the Court of Appeal, summarised a number of rules that applied to the law of nuisance (at para 36):
‘i) There is no absolute standard; it is a question of degree whether the interference is sufficiently serious to constitute nuisance. That is to be decided by reference to all the circumstances of the case…
ii) There must be a real interference with the comfort or convenience of living, according to the standards of the average man… or in the familiar words of Knight Bruce VC:
“… not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people” (Walter v Selfe (1851), at page 322).
iii) The character of the neighbourhood area must be taken into account. Again in familiar 19th century language, “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey…” (… citing Thesiger LG, Sturges v Bridgman (1879)).
iv) The duration of an interference is an element in assessing its actionability, but it is not a decisive factor; a temporary interference which is substantial will be an actionable nuisance…
v) Statutory authority may be a defence to an action in nuisance, only if statutory authority to commit a nuisance is express or necessarily implied. The latter will apply where a statue authorises the user of land in a way which will “inevitably” involve a nuisance, even if every reasonable precaution is taken…
vi) The public utility of the activity in question is not a defence…’
Some of these elements benefit from a little more analysis.
THE ABSENCE OF AN ABSOLUTE STANDARD
Businesses are often puzzled by the absence of an absolute standard. There is often an assumption, no doubt based on many years of compliance with prescriptive regulations, that there must be some measurable limit or threshold of what is tolerable and what is intolerable.
For some emissions, such as noise, there are helpful documents, such as The World Health Organisation’s guidelines on community noise and BS 4142:1997 on the method for rating industrial noise affecting mixed residential and industrial areas. However, even where such standards exist, compliance with limits in those standards is not an absolute defence. The standards must be treated with care and provide only one part of the evidential matrix. There have been many nuisance cases where defendants have sought to use such standards as a shield and have been disappointed by the results.
In many cases, the courts prefer to rely on the witness evidence rather than on measurements and complex reports from opposing experts. Witnesses explaining the impact of the activity on their daily lives is often far more powerful than numbers on a page.
That is not, of course, to say that expert evidence does not have a role, and indeed in many nuisance cases it will be crucial. The point is simply that the court will look at all of the facts of the case and measurements will only be part of the equation.
The absence of an absolute standard makes it very difficult for businesses to identify whether an activity is going to step over the threshold between something that is annoying but must be tolerated within society and something that gives rise to actionable claim in the courts. However, it also provides the court with flexibility and it is a fundamental part of the balancing test that is so central to the law of nuisance.
A REAL INTERFERENCE WITH THE COMFORT OR CONVENIENCE OF LIVING
The ‘real interference with the comfort or convenience of living’ rule is intended to eliminate trifling claims. Carnwath LJ relied on the judgment in St Helens Smelting Co v Tipping (1865):
‘… you must not stand on extreme rights… Business could not go on if that were so. Everything must be looked at from a reasonable point of view; therefore the law does not regard trifling and small inconveniences, but only regards sensible, inconveniences, injuries which sensibly diminish the comfort, enjoyment or value of the property which is affected’.
Again, this comes back to the balancing act. A claimant almost certainly considers that the interference is more than trifling. A defendant almost invariably thinks the opposite. The court has to decide between them.
THE CHARACTER OF THE NEIGHBOURING AREA
The character of the area is an important consideration and one that is often hotly contested in nuisance litigation.
In The In-House Lawyer 192, we discussed the High Court judgment in Hirose Electrical UK Ltd v Peak Ingredients Ltd , in which an electrical component manufacturer complained about strong and pervasive smells such as garlic and curry from an adjacent unit. The High Court held that such odours had to be tolerated on a light industrial estate. The case was appealed to the Court of Appeal on the argument that the High Court had mischaracterised the area as a light industrial estate rather than a business park, but the Court of Appeal upheld the first instance decision. The case demonstrates the importance in nuisance litigation of appropriate evidence about the character of a particular area, because once the court has formed a view on this, it will play a big part in its determination of whether the activities are tolerable.
THE COURT OF APPEAL JUDGMENT IN COVENTRY V LAWRENCE
The character of the neighbourhood test was a central part of the conclusions reached in Coventry v Lawrence. The claimants had moved to the area in 2006 and complained to the local council. The council took action and some noise mitigation measures were put in place. However, the claimants were still affected by the noise and commenced private nuisance proceedings. The High Court had held that the racing operations were a nuisance at law. The Court of Appeal overturned that decision and held that the noise from the racing was part of the character of the area. Jackson LJ, giving the leading judgment, summarised the interaction between planning and the law of nuisance in four stages:
- A planning authority by the grant of planning permission cannot authorise the commission of a nuisance.
- Nevertheless, the grant of planning permission, followed by the implementation of such permission, may change the character of a locality.
- It is a question of fact in every case whether the grant of planning permission, followed by steps to implement such permission, has the effect of changing the character of the locality.
- If the character of a locality is changed as a consequence of planning permission having been granted and implemented, then:
- the question whether particular activities in that locality constitute a nuisance must be decided against the background of its changed character;
- one consequence may be that otherwise offensive activities in that locality cease to constitute a nuisance.
The character of the area test is likely to be helpful for businesses operating within the confines of a planning permission who are faced with complaints from aggrieved neighbours.
The law of nuisance is often confusing and frustrating for businesses craving some certainty about their right to operate. However, businesses disappointed with the Court of Appeal judgment inBarr v Biffa may take some comfort from the strong emphasis on the character of the area test in the Court of Appeal judgment in Coventry v Lawrence. Ultimately, however, these two cases show that it is back to basic and long-standing principles in relation to the law of nuisance and, unfortunately, that can lead to significant uncertainty for industry.