The significance of Barr in this area is that through its non-application of the doctrine of statutory authority Barr has further explored and defined the criteria required to lead a successful defence under statutory authority. By excluding Biffa Waste on these grounds Barr has developed the law in such a way that the doctrine of statutory authority still protects those undertaking statutory obligations while excluding those merely providing a voluntary service on a commercial basis, thus following the policy considerations behind the doctrine.
Reasonable User
Case law also recognises that it is a defence in nuisance if the action complained of is “necessary for the common and ordinary use and occupation of land” and done conveniently.[14] This is based on the principal of give and take, and results in the defence being based on the reasonable user.[15] Both nuisance and the concept of reasonable user are defined with regard to the particular circumstances, such as the character of the neighbourhood.[16] The character of the neighbourhood is an important factor in nuisance because it can change due to certain events, such as the granting of planning permission.[17] This can alter the standard of reasonable user which nuisance is judged against,[18] depending on the particular circumstances of the planning permission.[19]
The central question in Barr was if the governing legislation,[20] the terms of the permit granted to Biffa Waste and the earlier case law mean that Biffa Waste’s use of the land within the terms of the permit made Biffa Waste a reasonable user. The judge started with the “first principles”;[21] potential criminal liability and potential liability under statutory nuisance. Both potential liabilities have defences which Biffa Waste could rely on which does not exist under common law nuisance.[22] If liability under nuisance applied the result would be Biffa Waste being liable under the more generalised common law, despite complying with the more detailed provisions of both the legislation and the permit. The judge held that liability under common law nuisance had to conform to the standard of liability under statute in order to prevent the statute becoming redundant.[23] This follows previous case law, which notes the importance of a consistent, legislative approach to environmental law and that the common law should not negatively impact on the protection granted.[24]
The reasoning behind the primacy of the statute was also applied to the terms of the permit itself. The permit granted to Biffa Waste explicitly states that in some situations the emission of odours was inevitable, and that it was Biffa Waste’s duty to minimise the odour as opposed to preventing the odour from escaping.[25] The Environmental Agency used their expertise in deciding to include this provision, balancing the interests of both individuals likely to be affected and the interests of the general public. This balancing exercise would be made null if liability under nuisance could be established without negligence, as it would be possible for companies to comply with the detailed permit to then be liable for an inevitable nuisance which was expressly allowed by the permit.
This result of this judgement is that operators acting within the terms of their environmental permits are classified as reasonable users, and are thus protected from claims based on nuisance. This differs from the previous case law regarding planning permission, a similar method of regulation.[26] The judge distinguished these cases on the grounds that planning permission is not as detailed or as strictly enforced as environmental permits.[27] The public policy behind this reasoning is that the exhaustive balancing exercise carried out by the authority would be made redundant if the interests of private individuals could override the considerations of the authority.[28]
However, there has been some critique on the reduction of common law liability on this ground. Maria Lee notes that it is possible for both levels to liability to operate in tandem, provided that they address different issues;[29] the legislation dealing with the protection of the environment and the common law dealing with individual private rights. This would theoretically lead to a fuller spectrum of rights and considerations being protected by the court. While this is true to some extent, this assumes that both issues can act independently of each other. This is not the case; if one of the grounds of liability is easier to base a successful action on then the issue it represents will be disproportionately represented due to the nature of litigation. The reasoning in Barr suggests that liability under statute and the issue it aims to resolve should either match or take precedence of that of the common law. This is justifiable, as the authority has the expertise to balance every factor including the private rights of individuals, as opposed to the court which has limited knowledge and cannot take into account the full spectrum of factors while protecting private rights.
The effect the judgement has on environmental permits has also raised some concerns. Maria Lee comments that the judgement is vague on how the detail of environment permits impacts upon the protection it grants from nuisance claims, and it is implied that using the judgement in Barr in such a wide manner is not an appropriate method in applying reasonable use in nuisance cases.[30] Distinguishing environmental permits from planning permission in this way also assumes that the detail in the terms provided reflects the balancing process of the different authorities. Both the Environmental Agency and the Local Authority balance factors such as the general public interest and the private rights of affected individuals, and it seems questionable to protect the “careful balancing act between competing interests”[31] for environmental permits while not extending the same protection to planning permission. However, it can be viewed that the greater detail in environmental permits obliges operators to show greater respect for the factors used in the balancing process while the less detailed terms in planning permissions do not carry the same obligation. An additional issue is that the judgment assumes that any negligent action will breach the terms of the permit. Commentators have suggested that it is possible for operators to create a nuisance through negligence and still be within the terms of their permit.[32] This could lead to contradictions in the law, which prevents the level of consistency that Barr was aiming for.[33]
The judgement in Barr also recognised that in this case the character of the neighbourhood was rebalanced to its original residential-light industrial character, which in turn changed the standard by which nuisance is judged.[34] This is in accordance with the previous case law[35] and follows naturally from these judgements, as the extension of this principle to allow environmental permits to change the character of the neighbourhood treats all authorities which use power delegated from Parliament in a consistent manner. This is also supported by public policy: it is within the interest of the general public that the authority which has the necessary expertise and information to make the appropriate decision cannot be overruled for the interests of one individual. The difference between this defence against nuisance and the absolute defence of following an environmental permit is that it does not inappropriately distinguish between sources of permits.
The significance of Barr is that it extends the law relating to the concept of reasonable user and environmental permits beyond its original limitations. The wide approach taken in allowing any activity contained within the permit to be classed as reasonable and the resulting immunity to nuisance claims without negligence limits the ability of the common law to play any part in environmental protection. While the basis of broadening the concept of reasonable user through environmental permits is suspect, the extension of the instruments which can change the character of the neighbourhood and its effect on the common law is more appropriate in broadening the doctrines which represent the public interest.
The value of the common law
The common law was most commonly used to protect against environmental harm during the Victorian period; where the idea of laissez faire permeated the law.[36] However, after changes in the perception of the appropriate method of protecting the environment and subsequent inadequacies in the common law it became uncommon to use common law in this way. Despite this change in attitude the common law has the potential to make a valuable contribution to the protection of the environment. While Barr has not substantially varied the value of the common law in environmental cases the extension of protection via permits has diminished its value, continuing in the same vein as previous cases.
One of the potential uses of the common law is to represent individual interests within the regulatory framework, usually via granting compensation or interdicts. This ability to challenge decisions gives individuals the opportunity to obtain remedies greater than those available than that under judicial review; the usual method of challenging regulatory decisions, which can result in no change to the applicants situation.[37] The importance of allowing individuals to participate in environmental planning is recognised to be important in supplementing and challenging the regulatory body[38] as it encourages greater awareness of the environment, provides another incentive for regulators to carefully consider the factors surrounding a decision and creates an avenue of appeal against decisions which might have no appeal mechanism.
The common law can also provide a method to challenge accepted science and risk assessment procedures.[39] Within society there are many standards of scientific evidence and risk assessment procedures, and while regulatory bodies choose the standards that they judge against it must be in accordance with public opinion in order for the body to act in the public interest. By being able to challenge these preconceptions individuals have a greater role in protecting the environment, something that is necessary for a unified environmental strategy. It also helps improve and refine the standards used by the regulatory bodies, which in turn improves the quality of their decisions and its reflection of public opinion.
While the common law is able to provide such benefits to both individuals and the regulatory body the ideology underlying the common law substantially differs from that under modern environmental protection. The modern method of environmental protection is to act collectively,[40] which is difficult to reconcile with the individualistic viewpoint of the common law. Numerous cases, including Barr, have shown that the interests of private individuals tend to oppose that of the general public.[41] This is intrinsic to the common law; it only concerns itself with private rights so cannot take into account the wider problems of the situation, such as the environmental damage’s detrimental effect to the overall ecosystem.[42]. This individualistic approach can also be seen in the criteria for starting an action, as only those who have a proprietary interest can do so.[43] This fails to take into account the wider picture, as it excludes individuals and environmental groups who would take cases beyond private commercial interest. While it is recognised that courts should not ignore private rights for the public benefit[44] it is difficult to give adequate weight to individual interests when it fails to acknowledge these other concerns.
There are additional problems with using the common law as the main method of environmental protection. The subjectivity of principles such as reasonableness and foreseeability in nuisance prevents certainty within cases, which can dissuade individuals from asserting their rights. It also results in the ability of nuisance to change longstanding problems to be negligible.[45] Another major problem with the common law is that it merely reactive, providing remedies for damages that have already occurred.[46] This is inadequate, given the importance of preventing environmental damage from further harming the environment.
The main issue in utilising the common law in environmental cases is the individualistic view it prescribes, which is in conflict with the modern view of the requirement to act collectively on environmental issues. It is for this reason and problems with the procedure under the common law that it cannot be used as the main protection from environmental damage. However, as a supplement to the regulatory process, and occasionally a method of challenge, the common law can shape environmental law through the representation of differing views and assertions of rights. This allows individuals to participate in environmental protection, and in turn this improves the protection granted by regulatory bodies.
[1]Barr v. Biffa Waste Services [2011] 4 All E.R. 1065
[2] Bamford v. Turnley (1862) 3 B&S 66
[3] Bamford (n 2)
[4] Cambridge Water Co v. Eastern Counties Leather PLC [1994] 2 A.C. 264 (HL)
[5] Allen v. Gulf Oil Refining Ltd [1981] A.C. 1001 (HL) 1011
[6] Allen (n 5) 1011
[7] Allen (n 5)1011 – 1012
[8] Marcic v. Thames Water Utilities Ltd [2003] UKHL 66 (HL) 57
[9] Wheeler v. JJ Saunders [1996] Ch. 19 (CA) 28
[10] Barr (n 1) para 317
[11] Barr (n 1) para 318
[12] YL v. Birmingham City Council [2007] UKHL 27 (HL) para 134
[13] YL para 134
[14] Bamford (n 2) 83
[15] Cambridge (n 4) 300
[16] Sturges v. Bridgman (1879) L.R. 11 Ch. D. 852 (CA) 865
[17] Gillingham Borough Council v. Medway (Chatham) Dock Co.Ltd [1993] Q.B. 343 (QB) 359
[18] Hunter v. Canary Wharf Ltd [1997] A.C. 655 (HL) 722
[19] Wheeler (n 6) 30
[20] Environmental Protection Act 1990 (EPA 1990)
[21] Barr (n 1) para 343
[22] Section 33 of the EPA 1990 & Section 80(7) of the EPA 1990
[23] Barr (n 1) para 344-345
[24] Cambridge (n 4) 305
[25] Barr (n 1) para 351
[26] Wheeler (n 6) 30
[27] Barr (n 1) 363
[28] Barr (n 1) para 358
[29] M Lee, ‘Tort Law and Regulation: Planning and Nuisance’ J.P.L. 2011, 8, 986-933
[30] M Lee (n 26)
[31] Barr (n 1) para 358
[32] M Lee (n 26)
[33] Barr (n 1) para 357
[34] Barr (n 1) 371
[35] Watson v. Croft-Promo Sport Ltd [2008] Env. L.R 43 (QB) and Hunter (n 17)
[36] Transco PLC v. Stockport MBC [2004] 2 A.C. 1 (HL) 23
[37] K Stanton and C Wilmore, Tort and Environmental Pluralism in J Lowry and R Edmunds, Environmental Protection and the Common Law (Hart Publishing 2000) 110
[38] K Stanton and C Wilmore (n 39) 110
[39] K Stanton and C Wilmore (n 39)
[40] J Steele, ‘Private Law and the Environment: Nuisance in Context’ Legal Studies 1995, 15, 236-260, 237
[41] E.g. Allen (n 5)
[42] S Bell and D McGillivray, Environmental Law (7th Edn Oxford University Press 2008) 352
[43] Hunter (n 18)
[44] Dennis v. Ministry of Defence [2003] EWHC 793 (QB)
[45] K Stanton and C Wilmore (n 37) 98
[46] J Steele (n 40) 239
by
seanboy85 (student)
