Nuisance has long existed as a means of allowing private
landowners to claim against those who unlawfully interfere with the
use and enjoyment of that person's land. The most common
examples of actionable nuisances that become the subject matters of
claims are noise, smell and emissions.
A recent Court of Appeal decision concerning smells has clarified
that a private individual's claim in nuisance will not
necessarily be defeated by any statutory authority given to the
creator of the nuisance as long an actionable nuisance can be
proven according to the usual common law principles.
In Barr and Others -v- Biffa Waste Services Limited, a
group of local residents brought a claim in nuisance against Biffa
for smells emanating from a waste disposal and landfill site.
The smell was described by one resident 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."
In the High Court, the Judge found in favour of Biffa supporting
their argument that it was unfair and unrealistic to find them
liable to the residents in nuisance where they had complied with
all their obligations under environmental legislation and also with
the detailed provisions of their permit which allowed them to
dispose of waste at the site.
The residents appealed and the Court of Appeal overturned the
Judge's decision. The judgment confirmed that the principles of
nuisance are well settled. Any claim requires an assessment of
whether there has been real interference with the comfort or
convenience of living according to the standards of the average man
with account being taken of the character of the neighbourhood and
the duration of the interference. More importantly, it
confirmed that authority given to a person or entity by legislation
could only amount to a defence against nuisance to the extent that
the legislation either expressly allowed that person to commit a
nuisance or that this could be implied. For it to be implied,
it would have to be made very clear in the legislation that the
user of the land was authorised in such a way that would inevitably
involve nuisance. Short of such authority, there is no basis
for using a statutory scheme to defeat private law
rights.
The case does not, of course, mean that a private landowner will
automatically defeat any person authorised by statute to carry out
a certain activity which the landowner considers may constitute
nuisance, as the Court of Appeal was keen to point out that each
decision on private nuisance was to be decided by reference to all
the circumstances of the case and the existence of an actionable
nuisance will need to proven. However, it is evidence that the
Court will seek to uphold the private law rights of individuals and
that these remain fundamental in the modern legal system.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 22/03/2012.
