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What a nuisance: Barr v Biffa

13 May 2011

In this article we look at a recent nuisance case in which a permit for landfill was a complete answer to a claim for nuisance provided that the site was operated properly, using the best available techniques and due diligence.

What happened?

A housing estate was built on part of an old gravel quarry.  On another part Biffa had a permit for landfill, disposing of "pre-treated” waste.  The householders sought to sue Biffa for nuisance because of the smell.

What was the issue?

Could the householders sue Biffa for nuisance because of the smell?

What did the Court say?

No.  The legislation and the detailed terms of the permit for landfill meant that an activity (tipping) which would otherwise be a criminal offence was lawful and tipping was not an unreasonable user of the land.

Although the grant of planning permission does not override private rights such as rights of light and nuisance claims, it was relevant for deciding if the underlying activity was lawful, reasonable and for evidence of the character of the area as one with a mixture of uses.

Provided, as was the case, Biffa carried out its activities properly and using the best available techniques and due diligence, there could not be a liability for nuisance which would completely undermine the permit.  In reaching this conclusion, some emphasis was placed on the mixed character of the neighbourhood.  Although it had become more residential over the years, this did not make the use unreasonable. 

Case:  Barr and ors v Biffa Waste Services Ltd [2011] EWHC 1003 (TCC) Coulson J