Residents win appeal over nauseating landfill site

Home owners who say their lives were blighted for years by the “nauseating stench” of rotting rubbish from a landfill site have been handed a ground-breaking victory by top judges.

In a case which has so far cost a staggering 6m in lawyers’ fees, waste giants Biffa, were slammed for their “bullying” attitude to more than 150 residents of a Hertfordshire estate who say they were treated to the sickly odour of stale bins between 2004 and 2009.

In a ruling whichcould send shock waves through the waste industry – and could herald an avalanche of similar damages claims – the appeal judges opened the way for the home owners to seek thousandsof pounds in damages from Biffa Waste Services Ltd.

Residents of the Vicarage Estate in Ware, Hertfordshire, have run an epic campaign for recompense (see letsrecycle.com story), saying the odour from the Westmill landfill site amounted to a legal “nuisance”.

The case was spearheaded by retired Derrick Barr who kept a detailed diary of smell emissions from the site. He says the “sickly stench” was particularly bad in the summer months and was sometimes so disgusting that he had to keep the windows and doors of his home tightly shut.

He and his wife often felt unable to venture into their garden and were too embarrassed to ask guests round because of the smell, London’s Civil Appeal Court was told.

Legal costs

Upholding the residents’ appeal against an earlier ruling in Biffa’s favour, Lord Justice Carnwath lamented the enormous legal costs of the “hard-fought” case and criticised Biffa for “adopting an unnecessarily aggressive even ‘bullying” approach” to the dispute.

Biffa was in October 2007 convicted of four breaches of the conditions under which it operates the site, but the judge said that was the signal for the company to become “more aggressive” and “ratchet up” the pressure on the Environment Agency.

High Court judge, Mr Justice Coulson, dismissed the residents’ case last year after ruling that Biffa’s operation of the landfill site, without negligence and in accordance with a detailed permit, amounted to a “reasonable use of land”.

However, quashing that decision today, Lord Justice Carnwath accepted residents’ arguments that negligence, and even whether Biffa should have done more to stop the stench, were simply irrelevant to the issue of whether the smell amounted to a nuisance.

The appeal judge, sitting with Lady Justice Arden and Lord Justice Patten, concluded: “Either way, there was no reason for the judge, in evaluating the facts, to assume in Biffa’s favour a degree of compliance which was not established by the evidence”.

The ruling means yet bigger legal costs are now in prospect as each of the 150-plus cases must now go back to a lower court for the merits of individual claims to be assessed.

But, questioning how a dispute on a “narrow issue of law” could have ballooned into such an enormously costly piece of litigation, Lord Justice Carnwath urged both sides to compromise.

Any damages payouts to residents “will be dwarfed by the costs, probably of the order, so we are told, of 3m on each side”, the judge said.

And he pleaded: “The most important issue now is how to bring these unfortunate proceedings to an end, as speedily and economically as possible”.

Claims

Biffa argues that many of the individual claims do not stack up and the judge said the case had got out of hand partly because, in the view of Mr Justice Coulson, “the arguable claims of a few” had been “swamped by a mass of less meritorious claims”.

Lord Justice Carnwath said it was “hard to understand” at first sight why a “narrow issue of law” at the heart of the case had ballooned into a mammoth piece of litigation which has already run up 6m in lawyers’ bills.

Biffa was criticised “for adopting an unnecessarily aggressive, even ‘bullying’, approach, following their conviction in October 2007, and extending into the trial.”

But the residents were also criticised “for the complications resulting from the ‘group litigation policy’ adopted by their solicitors, Hugh James, which in the judge’s view had resulted in the arguable claims of a few in effect being swamped by a mass of less meritorious claims”.

In his ruling in 2011, Mr Justice Coulson had “declined to comment” on Biffa condemnation of the strategy taken by the residents’ solicitors as “ambulance-chasing”.

Following its 2007 conviction, “Biffa’s attitude to the Environment Agency (EA) became more aggressive, as they decided to ‘ratchet up’ the pressure on the agency”.

Mr Justice Coulson referred to Biffa’s “belligerent post-conviction stance” which led them “to find fault with everything that the EA did”.

The company’s attitude had changed “almost overnight” after the conviction, with the company pursuing “peripheral” and “trivial” points.

And the judge said: “They appear to want to bulldoze the EA into doing precisely what they wanted and the level and scale of the intimidation was obvious from the correspondence.”

Merits

Following the Appeal Court’s decision in favour of the residents today, the merits of each of the 150-plus claims will now have to individually assessed by a lower court, at an additional cost which can only be guessed at.

That is unless the residents and Biffa now decide to compromise, as they were urged to do by the judges. The Appeal Court is expected to reconvene later this month to hear argument on how the case should now be progressed.