Biffa odour case creates ‘uncertainty’ for operators
26 April 2012
Biffa appears set to appeal against a landmark ruling regarding the level of odour at its Westmill landfill site as some experts predict the case could open the door for similar cases to be brought forward.
The Court of Appeal ruled in favour of residents from the Vicarage Estate in Ware on March 19 (see letsrecycle.com story) who said their lives were blighted by the ‘nauseating stench’ coming from the landfill.
The ruling saw an earlier judgement by the High Court in favour of Biffa overturned, meaning that a claim for private nuisance can now be brought against the waste management company.
However Biffa has said it is “considering” the Court of Appeal judgement as it believes the case has not been brought to a close – the next step would be a further appeal to the Supreme Court.
In a statement the company said: “Biffa is currently considering the Court of Appeal judgement. It believes that the judgement does not bring the case to a close and that therefore further comment at this stage would be inappropriate.”
Should Biffa not appeal, the case will be directed to a lower court where the 152 individual cases brought by the residents will be heard. Success by the claimants could result in Biffa being forced to pay thousands of pounds in damages in a case which has already racked up over £6 million in lawyers’ fees.
Angus Evers, co-convener of UK Environmental Law Association’s (UKELA) waste working party, told letsrecycle.com that the residents would still need to prove that they had suffered a nuisance in order to claim damages.
He said: “One of the key things is that although the court ruled that compliance with the permit wasn’t a defence it didn’t rule whether or not the communities had valued claims. Although Biffa has lost on that point they’re not actually at the stage where they have got to pay damages to any of the local residents who have got to prove that they have suffered a nuisance.
"The fact that Barr v Biffa has been over turned puts us back to the position before where there isn’t that certainty meaning operators are always at risk of a claim. That will have a big impact"
Michael Barlow, Burges Salmon
“It’s a preliminary point that the Court of Appeal has ruled on but there are implications if the residents can prove that they have suffered a nuisance.”
Law firm Burges Salmon outlined how it perceived the implications of the case for landfill and composting site operators in a briefing published in March 2012.
The law firm said: “Biffa fought the litigation as a test case in the hope of establishing some certainty for itself and others in the industry on the interaction between the law of nuisance and environmental permitting.”
The briefing explains that Biffa’s main defence was that as the Environment Agency had authorised the emissions of a certain amount of odour under its permit and should therefore not be liable unless it operated the site in a negligent manner. On top of this Biffa also argued that the existence of the permit was evidence of a ‘reasonable user’ meaning that there was no nuisance at law.
Following the Court of Appeal’s decision, Burges Salmon said the case has installed a sense of ‘unwelcome uncertainty’ throughout the industry putting firms, particularly those that operate landfill and composting sites, at risk of legal action for nuisance even if the level of odour is within the boundaries of the sites’ permit.
In the briefing, the firm, which is a member of the Association of Organics Recycling (AfOR), said: “Composting facilities subjected to complaints from neighbours must go back to assessing a multitude of factors such as timing, frequency, duration and intensity of emissions and the character of the neighbourhood to identify whether they are vulnerable to nuisance claims.
“It appears that the application of facts for each new scenario will continue to cause difficulties and unwelcome uncertainty for composting operators in the foreseeable future.”
Commenting on the case, Michael Barlow, partner at Burges Salmon LLP, told letsrecycle.com: “We are certainly seeing an increase in claims against operators arising from odour and that’s down to a number of factors. One is that the material is generally more odorous, there’s more composting of food waste for example, which may have more odour. Another factor is that claimant solicitors are getting more sophisticated about bringing forward claims with conditional fees and organising class actions, meaning we are seeing more claims being brought forward."
Mr Barlow said the ruling by the High Court in favour of Biffa had offered the waste industry some certainty but the latest judgement by the Court of Appeal removed this.
He said: “The fact that Barr v Biffa has been over turned puts us back to the position before where there isn’t that certainty meaning operators are always at risk of a claim. That will have a big impact.”
Mr Barlow explained that because working within the boundaries of a permit was not a sufficient defence; operators must look at other factors, such as planning permission, if they want to successfully defend themselves against a claim.
He said: “The best line of defence now is to argue that the planning permission required for the operations changes the character of the area and not the fact that the operators were working with the permit.”
Engaging with the local community will also reduce the likelihood of them bringing about a claim, Mr Barlow said.
In a bid to help reduce nuisance claims, particularly those involving odour, the Environment Agency has said it will help companies operate their sites to the best environmental standards.
A spokesperson for the Environment Agency told letsrecycle.com: “The decision of the Court of Appeal in Barr v Biffa appears to be consistent with a long line of common law decisions relating to the law of nuisance. The essential implication of the judgement is that it confirms that the civil courts are still available for a justified claim of nuisance. We are now considering the impact of this ruling in detail and will use our regulatory forum with industry, known as the Landfill Regulation Group, to help ensure more sites operate to the best environmental standards.”
The case is expected to be watched closely by the waste and recycling industry as it could lead the way to other nuisance cases being brought forward including those involving noise.
Matthew Farrow, director of policy at the Environmental Services Association (ESA), the trade association for the waste management sector, said: “ESA members aim to be ‘good neighbours’ and of course comply with their permit conditions. This case will no doubt be watched with interest by the industry as it could have implications for how companies are expected to meet their obligations to minimise nuisance.”