Waste management companies cannot rely on landfill permits as a defence against odour complaints

The judgment overturned the High Court's decision in 2011 that by acting without negligence in accordance with a landfill permit, waste management company Biffa had "implied statutory immunity" against claims relating to odours from the facility brought by people living near the Ware, Hertfordshire plant.

"The common law of nuisance has coexisted with statutory controls, albeit less sophisticated, since the 19th century," Lord Justice Carnwath said. "There is no principle that the common law should 'march with' a statutory scheme covering a similar subject matter. Short of express or implied statutory authority to commit a nuisance... there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights."

Environmental law expert Simon Colvin of Pinsent Masons, the law firm behind Out-Law.com, said that odour was becoming an increasing focus for the Environment Agency (EA), which regulates the environmental permit regime.

The 2011 decision had in effect barred local communities from bringing a common law nuisance claim against a waste operator where the operator was in compliance with its environmental permit. In addition, the decision introduced the concept of a 'threshold', meaning that residents would have to accept a certain number of days on which they were impacted by odour before they were entitled to bring a claim, he said.

"Odour has always been a concern for many operators in the waste industry," he said. "Technological advances have meant better odour control, but the growth and expansion of the waste industry – often in close proximity to residential areas – has meant a conflict between the two.

"This decision brushes aside the protection afforded to waste operators by the High Court decision and reopens the door to 'odour chasing' law firms to work with residents living in close proximity to waste facilities in seeking damages for any impact they suffer as a result of odour - even where an operator is in compliance with the terms of its permit," he said.

He added that it would "not be a surprise" if Biffa sought permission to appeal to the Supreme Court.

Biffa's permit to operate the site was subject to detailed conditions including measures to "control, minimise and monitor" odours, resulting in a successful prosecution of the company in 2005 when it began tipping pre-treated waste close to the nearby Vicarage Estate. However, problems continued until 2009. In 2008, the EA issued a formal warning to the company in respect of further incidents.

The company had argued that by operating their site in accordance with the terms of the permit, it either had "statutory authority" for any activities that would give rise to a nuisance claim by local residents or could argue that its use of the land was reasonable. Although Mr Justice Coulson rejected the statutory argument, he accepted that the existence of the permit should be linked to what could be classed as a reasonable use of the land. The grant of a permit for tipping pre-treated waste altered the character of a neighbourhood, giving an implied statutory license for an "inevitable" certain amount of odour emission.

However, on appeal Lord Justice Carnwath said that the case was governed by the well-established "conventional principles of the law of nuisance". In addition, the permit did not change the essential "character" of the neighbourhood, which already included waste tipping. "The only change was the introduction of a more offensive form of waste, producing a new type of smell emission," he said. In addition, Mr Justice Coulson had been incorrect to suggest that the situation was comparable with a "change in character" caused by a grant of planning permission.

"Whatever the scope of that exception, it has no relevance to this case," he said. "[T]here was no evidence of a pre-determined 'strategy' of the Environment Agency, let alone the planning authority, to transform this area into one for tipping pretreated waste... In any event, there is no authority for extending such principles to a waste permit: granted by the Environment Agency, not the planning authority; and for purposes concerned, not with the balance of uses in the neighbourhood but with the regulation of one particular activity within it."

"This is the latest in a line of cases dealing with sewage treatment works, noise and now odour that consider the relationship between the common law of nuisance and statute," said environmental law expert Gordon McCreath, also with Pinsent Masons. "Some says that statutory scheme prevails, some don't – it depends on the statutory scheme.

"At root, if you want to make the argument stick that the statutory scheme prevails, you need to show the court that that was the intention of Parliament when making the scheme. If you can't do that, you need to keep within the common law principles of nuisance – like the 'character of the neighbourhood' argument referred to here. Statute will only form a trump card when Parliament intended to deal it out," he added.

Lord Justice Carnwath added that there had been no previous court decisions to support Mr Justice Coulson's "complaint threshold", which was set at 52 days in the High Court ruling. Previous cases "turned on their own facts", which could not be applied to "transient and unpredictable" smells from Biffa's facility, he said.