Barr & Ors v Biffa Waste Services Ltd [2012] EWCA Civ 312.

The Claimants successfully appealed against a High Court decision of last year. In the High court Coulson J had found that compliance with a waste permit amounted to a defence in nuisance unless a claimant could prove negligence. 152 residents alleged that odour from a site had seriously effected their quality of life. They couldn’t open windows or make use of their gardens.

The Court of Appeal criticised the the overcomplicated way the court below had approached the matter. The judges said this area of the law was relatively straightforward and had changed little since the 19th century. They couldn’t understand how such a case had led to legal costs of almost £6,000,000.

The court said that the test was

‘what an ordinary person could reasonably be expected to put up with”

He said such reasonableness can be judged by the character of the local area, if the activity has planning permission and a regulatory permit that would be relevant if they changed the character of the area.

The judges said the Claimants were entitled to have their cases assessed in the same way previous nuisance cases had been.

The court rejected the High courts view that there was a threshold of complaints in nuisance which required 52 complaints or records of nuisance to prove actionable nuisance.

The individual cases will be remitted down to the lower courts to assess the level of damages each resident will recover.

The court urged the parties to attempt to settle the claim once and for all.

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