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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Barr & Ors v Biffa Waste Services Ltd (No 3) [2011] EWHC 1003 (TCC) (19 April 2011)
URL: http://www.bailii.org/ew/cases/EWHC/TCC/2011/1003.html
Cite as: [2011] 4 All ER 1065, [2011] EWHC 1003 (TCC), 137 Con LR 125

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Neutral Citation Number: [2011] EWHC 1003 (TCC)
Case No: HT-09-165

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Westmill Landfill Group Litigation

Royal Courts of Justice
Strand, London, WC2A 2LL
19th April 2011

B e f o r e :

THE HONOURABLE MR JUSTICE COULSON
____________________

Between:
DERRICK BARR AND OTHERS
Claimants
- AND -

BIFFA WASTE SERVICES LIMITED
Defendant
[No 3]

____________________

Mr Nigel Cooksley QC and Mr John Bates (instructed by Hugh James) for the Claimants
Mr Ian Croxford QC and Mr Thomas De La Mare (instructed by Nabarro) for the Defendant
Hearing Dates: 16, 17, 18, 19, 22, 23, 24, 25, 29 & 30 November,
1, 2, 6, 7, 13, 14, 15 & 16 December 2010

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    The Honourable Mr Justice Coulson:

    A INTRODUCTION

  1. This is a group action, brought by 152 households on the Vicarage Estate in Ware in Hertfordshire, seeking damages in nuisance against the Defendant ("Biffa"). The complaints are centred on the odour from pre-treated waste emanating from Biffa's landfill site known as Westmill 2, located immediately to the north-west of the Vicarage Estate, on the other side of the A10. Nuisance is denied and there are a potentially large number of factual and legal issues which arise for determination. Biffa's principal defence is one of statutory authority; namely that the relevant legislation and the terms of the permit granted to them by the Environment Agency ("EA") mean that they cannot in law be liable to the claimants in nuisance.
  2. In the alternative, Biffa rely on the legislation, the detailed terms of their permit and the recent nuisance cases to found a defence of reasonable user of land. This defence accepts that Biffa could be liable to the claimants in nuisance, but only if there was a sustainable argument that the nuisance arose out of negligence on their part. They maintain that, in the absence of any allegation of negligence, or any alleged failure to use best available techniques, no claim in nuisance can arise out of their lawful carrying out of the landfill activities in accordance with the permit.
  3. It is therefore right to note at the outset that this dispute involves a clash between two potentially irreconcilable principles. On the one hand, the claimants contend that they have inalienable common law rights in nuisance which have not been affected, let alone excluded, by the relevant environmental and landfill legislation and the detailed terms of Biffa's permit; on the other hand, Biffa submit that it would be unfair and unrealistic if the cascade of legislation and the terms of their permit were ignored, so that they could comply with all their numerous obligations and the detailed provisions of their permit, and still find themselves liable to the claimants in nuisance, as if the legislation and the permit did not exist.
  4. In order to properly manage the presentation and trial of 152 separate claims, it was decided that this trial would concentrate on the claims made by a pre-selected group of 30 claimants. Those 30 lead claimants, including Mr Barr, were selected jointly by the parties in an attempt to provide a range of residents[1]. They are principally based in Zone 1, which is the part of the Vicarage Estate which is closest to Westmill 2, and includes Dovedale, The Larches, Wheatsheaf Drive, The Hawthorns and Greyfriars. The remaining lead claimants come from Zone 2 (which is to the east of Zone 1 and therefore further away from the landfill site), and Zone 3 which lies to the south of Zones 1 and 2. Parts of Zone 3 are the furthest of all from Westmill 2 and, because of the prevailing winds, even those parts which were closer to the site were less affected by odour than Zones 1 and 2.
  5. Since claims in nuisance are fact-specific, it has not been possible for the parties to agree that any findings in relation to the 30 lead claimants will automatically be binding upon the remaining claimants although, of course, my rulings on the law will be binding on those other claimants. In addition, the parties are confident that, whilst the claims of the remaining claimants will not have been formally decided, it will be apparent from this judgment what the likely result would be for every other claimant. I share that confidence, for reasons which will become apparent below.
  6. Biffa have made it plain that they regard this Group Litigation as something of a test case. They are a large waste disposal company, handling about 10-12% of the UK's industrial, commercial and domestic waste, and operate hundreds of sites across the UK. They are therefore anxious to obtain at least some degree of certainty as to the nature and scope of their obligations and liabilities in circumstances such as these. Whilst I am sympathetic to that desire, there can be no doubt that the fact-specific nature of nuisance claims means that they are not very promising candidates for "test case" status. That said, the legal issues (and, in particular, the issues as to statutory authority and reasonable user referred to above) do seem to me to be of wider significance and application.
  7. I deal with the issues that have arisen between the parties in the following way. In Section B below, I set out the chronology of the relevant events and make general findings of fact. At Section C, I then address the general principles of nuisance, and the specific principles applicable in odour cases such as this. In Section D, I set out some of the relevant legislation, emanating both from the European Community and the United Kingdom, and in Section E I summarise the human rights position in so far as it is relevant to the claimants' claims.
  8. Thereafter, at Section F below, I consider the issues of law arising out of Biffa's principal defence of statutory authority and whether the legislation provides Biffa with a complete defence to the nuisance claims. At Section G, I deal with whether or not, in principle, the claimants can make a valid claim in nuisance, without concomitant allegations of negligence, by considering the issues of reasonable user and the character of the locality. At Section H, I deal with a mixed issue of principle and fact, namely the fixing of a threshold or starting point as to odour levels and frequency which might reasonably be regarded as acceptable, but beyond which it could be said that nuisance has occurred. At Section I, I analyse and reach conclusions of fact in relation to the claims by the 30 lead claimants. I address quantum in Section J. At Section K, I make some short observations relating to the contrasting positions of the claimants, Biffa, and the EA. There is a short summary of my conclusions at Section L.
  9. Before embarking on that exercise, it is necessary to make the limited scope of some of the issues plain from the outset. The original claims made by the 30 lead claimants contained general allegations of negligence, as well as nuisance. The negligence claims were subsequently amended to introduce much more extensive allegations of default, which were themselves based on the considerable disclosure which Biffa had provided relating to the operation of the Westmill 2 site. However, at the pre-trial review on 8 October 2010, the claimants abandoned each and every one of those allegations of negligence. Accordingly, I am not asked to make, and do not make, any findings as to any alleged deficiencies in Biffa's operation of the Westmill 2 site.
  10. In similar vein, the claimants have said in clear terms that they "do not allege any breaches of permit and do not seek to persuade the court that any particular instance was in breach of the permit"[2]. Accordingly, it is no part of the claimants' case to seek to rely on any breaches of the terms of the permit – whether alleged or proved in the Magistrates' Court or otherwise – in support of their claim for nuisance.
  11. Thus the claimants' claims in these proceedings are based on simple nuisance only, and I must assume that Biffa were neither in breach of the conditions of the permit (save in one limited respect, dealt with at paragraph 118 below), nor negligent. As will become apparent from the following Sections of this Judgment, these express and self-imposed limitations on the claimants' claims are of considerable significance.
  12. B CHRONOLOGY

    B1 The Locality and the Site

  13. The Vicarage Estate is a medium-sized estate of domestic dwellings, mainly houses, tucked in below the southbound carriageway of the A10, on the north-western edge of Ware. It was built largely in the late 70s and early 80s. Part of the Estate used to be a gravel quarry, which subsequently became a waste tip, although those operations had ceased before the construction of the Estate itself. Generally, the area south of the A10 has been used for light industrial/quarrying work, together with an increasing residential use. On the other (northern) side of the A10, the land has also been used for a mixed variety of activities, including agriculture, light industrial, quarrying, landfilling and a smaller amount of residential use.
  14. As noted above, the Estate has, for the purposes of these proceedings, been divided into three separate zones. Zone 1 is closest to the A10, but it is protected from the worst of the traffic pollution by a large bank which is covered in trees and shrubs. An old bridleway, Poles Lane, runs north/south through the Estate, and through Zone 1, along a tunnel underneath the A10, and then up the right-hand or easterly edge of Westmill 2, past the Hanbury Manor Hotel and Country Club.
  15. Westmill 2 is a large site, running to about 65 acres, immediately to the north of the A10, just past the turn-off for Ware. Like many other landfill sites in the UK, Westmill 2 is a quarry owned and operated by CEMEX. Biffa now have the tipping rights at Westmill 2 and fill the voids left by the extraction of sand and sandstone with pre-treated waste. The landfilling is carried out in cells, which comprise specific sections of the site. Cell 1 is closest to the A10 and therefore closest to the Vicarage Estate. To the north-east of Cell 1 are Cells 2, 3 and 4, all of which feature in the chronology below. The remaining Cells, from Cell 5 onwards, are further away from the Estate to the north-west.
  16. On the 3 April 1980, East Hertfordshire District Council ("EHDC") granted permission for the tipping of industrial and household waste at the Westmill Landfill site. This permission was granted to St Albans Sand and Gravel Ltd ("SASG"), which was part of the RMC Group. In 1984, landfill operations began at Westmill 1, which is a separate site close to Westmill 2, again on the other side of the A10 from the Vicarage Estate.
  17. In accordance with The Environment Act 1995, all existing mineral extraction planning permissions had to be reviewed. On 25 November 1998, Hertfordshire County Council ("HCC") set out conditions to SASG for a mineral extraction site at Westmill Quarry, which permitted the extraction of sand and gravel up to 31 December 2015, with completion of site restoration works by 31 December 2017.
  18. On 30 December 2000, Golder Associates, on behalf of RMC Environmental Services Ltd ("RMCES") applied for a Waste Management permit for the Westmill 2 site. This application was eventually granted, and the original permit for the tipping of waste at Westmill 2 was dated 7 April 2003. The permit was in the name of RMCES, and was issued pursuant to Regulation 10 of the Pollution Prevention and Control (England and Wales) Regulations 2000 ("the PPC Regulations"). Subject to extensive conditions, it authorised the Westmill 2 site to accept waste, including a specified range of household and non-hazardous industrial and commercial waste, with a total maximum waste input not exceeding 349,999 tonnes per year. On the same date, the EA provided a lengthy Decision Document in respect of the permit that had been granted.
  19. On the 30 April 2003, Golder Associates produced the Westmill 2 Working Plan. This document set out the methodology which RMCES would adopt when tipping waste at the site. As we shall see, this Working Plan went through a number of alterations over the next few years.
  20. In June 2003, Biffa acquired RMCES. In so doing, they acquired the benefit of the tipping permit in respect of the Westmill 2 site. The following year, on 25 May 2004, the EA formally transferred to Biffa the permit dated 7 April 2003. Shortly thereafter, Westmill 1 stopped accepting waste, and in July 2004, the waste disposal and landfilling work began at Westmill 2.
  21. B2 The Terms of the Permit Of 7 April 2003

  22. The evidence was that the permit for Westmill 2 was one of the first of its kind because, in accordance with the new Landfill Regulations, the proposed waste for Westmill 2 was going to be pre-treated. In practice, this meant that the waste received at Westmill 2 would have been first gathered at transfer stations in order that certain types of waste, such as waste that could be recycled, had been removed. Thus the waste coming to Westmill 2 was not recyclable. That meant that it was likely to be more organic and, because of the delays in getting it to site, more odorous. The evidence was that Westmill 2 was the first, or one of the first, landfill sites in the country to accept pre-treated waste.
  23. The permit contained an Introductory Note and a large number of conditions. The Note said:
  24. a) "The Permit includes conditions that have to be held in compliance by the operator. It should be noted that aspects of the operation of the installation which are not regulated by those conditions are subject to the condition implied by Regulation 12 (10) of the PPC Regulations, in that the operator shall use the best available techniques for preventing or, where that is not practicable, reducing emissions from the installation.

    Techniques include both the technology used and the way in which the installation is designed, built, maintained, operated and decommissioned."
  25. The conditions were divided up as follows:
  26. a) Part 1, which concerned the permitted installation, including the disposal of waste by landfill, and the specially engineered landfill of waste;

    b) Part 2, which concerned Operational Matters. Paragraph 2.1.1, under the heading 'Management Techniques and Control', provided that the permitted installation "shall, subject to the conditions of this Permit, be managed and controlled as described in the documentation specified in Table 2.1.1, or as otherwise agreed in writing by the [EA]." Included within the documents in Table 2.1.1 was the Westmill 2 Working Plan dated 4 April 2003;

    c) Part 3, which was concerned with Records; Part 4, which was concerned with Reporting; Part 5, which was concerned with Notifications; and Part 6, which was concerned with Emissions.

  27. Within Part 2 there were a number of conditions concerned with the prevention and control of odours. These included:
  28. a) Clause 2.6.8 which provided that:

    "The Operator shall, subject to the conditions of this Permit, provide, implement and maintain measures to prevent or otherwise control, minimise and monitor … odour … at the Permitted Installation as described in the documentation specified in…Table 2.6.8b...or as otherwise agreed in writing with the Agency."
    Table 2.6.8b referred to Sections 6.2 (Control of Odours) and 6.3 (Landfill Gas Odour Monitoring) of the Working Plan.

    b) Clause 2.6.12 which was in these terms:

    "There shall be no odours emitted from the Permitted Installation at levels as are likely to cause pollution of the environment or harm to human health or serious detriment to the amenity of the locality outside the Permitted Installation boundary, as perceived by an authorised officer of the Agency."

    This condition was the subject of much debate and an ultimately successful, but very prolonged, prosecution of Biffa by the EA in the Magistrates' Court. There was some evidence that this provision was in a standard form, regularly used by the EA at that time, although Mr Thair, now a general manager at Biffa, did not think that the language was in a common form. It has now been amended (see paragraph 171 below).

  29. Paragraph 6.2 of the Working Plan, referred to above, was entitled Control Odours. A summary of the control strategies to be employed were in these terms:
  30. "6.2.1…
    (i) The control of odours and gas migration from fresh waste to atmosphere during waste placement;
    (ii) the placement of daily cover, in accordance with Section 4.14.1 above;
    (iii) the placement of intermediate cover, in accordance with Section 4.14.2 above;
    (iv) restricting the area of active waste deposition to a minimum, therefore keeping the area of exposed waste to a minimum;
    (v) rejection of waste with a particular odour problem;
    (vi) spraying of odour neutralising agents, if required."
  31. Paragraph 6.3 of the Working Plan, also referred to above, and headed 'Landfill Gas Odour Monitoring', provided for a designated person to record the weather and monitor landfill odour a minimum of once per working week during operating hours, unless a complaint was received. The monitoring would then be carried out daily for at least five working days from the date of complaint. Paragraph 6.3.5 recognised that the residential area, which included the Vicarage Estate, was a sensitive receptor "most likely to be effected" (sic) by odour emissions. The intensity of the odour was to be recorded in accordance with a numbering system, with 1 to designate 'no detectable landfill odour', up to 5, which was described as "very strong landfill odour (which makes the location unpleasant to work in)". There was also a classification system for landfill odour parameters and sensitivity of the location.
  32. B3 The Start of the Infilling/July-December 2004

  33. On 6 July 2004, Biffa started to infill Cell 1 at Westmill 2. Within a week or so, the first complaints had been made to the EA about odour. In late August 2004, and over the bank holiday weekend in particular, the odours were very strong. This was the first time that many of the claimants became aware of the odour problems being created by the operations at Westmill 2. Although these proceedings are concerned solely with odour nuisance, there were a number of other complaints at the time, such as the increase in gulls and an apparent infestation of flies.
  34. Evidence about the problems on and around that weekend came from a variety of witnesses, including:
  35. a) Mrs Claire Chandler who described the smell over that weekend as "like a cross between a dustbin lorry and rotten fruit and veg. It was a very bad smell, almost like you hadn't emptied your bin in months."
    b) Mr Roger Hobbs who, in his statement for the subsequent EA prosecution of Biffa, said "by August 2004 the smell was becoming stronger and on hot days I could smell it in the house as well as in the garden."
    c) Mr Derrick Barr, who was out for most of the Bank Holiday Monday but whose Odour log recorded that, when he came home, "the stench began again".
    d) Mr Stewart Clark who, in his statement to the EA, said that "as the summer got warmer the smell became worse and got to the point where I could smell it in the house."
  36. An important point needs to be made at the outset about these four claimants, and three others, namely Mr John Chambers, Mrs Julie Rimmer, and Mr Paul Packham. Those seven claimants between them were responsible for the vast majority of the contemporaneous complaints and records of odour events. As the subsequent Sections of this Judgment make plain, the vast bulk of the residents of the Vicarage Estate, made no complaints and had no record of odour events (save where they maintained a Nuisance Record Form for short periods, as described in paragraph 401 below). Thus when, in the following paragraphs of this narrative, I refer to oral and written complaints, it is a safe assumption that the vast majority of those complaints (well over 90% of them) were made by one or more of these seven claimants, and not anybody else.
  37. On 29 September 2004, there was a meeting of a group of residents, together with a number of representatives of Biffa. These meetings, which were described and minuted as 'Westmill Liaison Meetings', took place regularly throughout the period with which this case is concerned. One or more of the seven claimants identified in the previous paragraph would regularly be in attendance.
  38. At that meeting, Rachel Harding, who was then the site manager for Biffa, reported that filling had started and went on to say:
  39. "A deodorising system has been installed beside the A10 following complaints from residents in the Old Vicarage estate. JT [Councillor Jeanette Taylor of EHDC] confirmed that residents had contacted Environmental Health about the odour."

    Mike Thair, who was then Biffa's regional operations manager, advised that "the cell, by law, can only accept pre-treated waste. As a result of the pre-treatment, waste has had longer to decompose before it reaches the site and Biffa has seen a national trend in odour complaints as a result." This succinctly recorded, at a very early stage, the principal cause of the problems that were to be experienced, on and off, over the next 5 years.

  40. The following day, on 30 September, Rachel Harding wrote to the EA "regarding the odour complaints received from residents adjacent to the A10". The letter accepted that the complaints were describing a 'waste type' odour. The letter identified the proposed works at the Westmill site, although it was also accepted that these works "are geared towards the acceptance of waste rather than gas control, although measures for gas control do feature". The letter also went on to say:
  41. "I would like to bring to your attention that following the commencement of operations within Westmill 2 and the acceptance of pre-treated waste only, the age of waste has changed significantly compared to that of the previously accepted direct delivery waste stream."
  42. On 12 October 2004, Biffa carried out an internal review at Westmill 2. There was a reference to the complaints received at the site from the public, "all relating to waste odour". The cause was said to be "the combination of relocating Westmill 2 coupled with London Waste transfer station inputs [loaded overnight/weekend] creating odour." This was the first reference to an ongoing problem at Westmill 2 with waste deliveries from a company called London Waste Limited, which were often identified as being particularly odorous, particularly if the waste had waited at their transfer stations for a lengthy period.
  43. There were more complaints in November and, following the production of the EA's site inspection report no. 435151, dated 10 November, which identified "a strong smell of rotting rubbish", an enforcement notice was served on Biffa by the EA. The Schedule was in these terms:
  44. "Matters amounting to contravention and steps to be taken
    Matters
    The site is causing odour to be emitted at a level likely to cause pollution of the environment and/or serious detriment to the amenity of the locality outside the Permitted Installation Boundary, as perceived by an authorised officer of the Agency.
    Steps
    Take all actions to minimise odour detailed in the letter from Biffa reference ea/rh, received by the EA on 30 September 2004 [paragraph 31 above].
    Take all other action required to prevent odour being discernable to an authorised officer of the Agency in the following roads within the locality of the site: Greyfriars, Wheatsheaf Drive, The Hawthorns, Dovedale and The Larches."
  45. Mr Thair wrote to the EA on 23 November to say that Biffa were disappointed to receive the notice, as the EA had recently noted that improvements in potential odour mitigation had been successful in eliminating complaints. A few days later, on 26 November 2004, Rachel Harding resigned as the site manager. The day-to-day work was taken over by Mr Chris Lofts, working under Mike Thair's supervision. The evidence was that Ms Harding did not enjoy the interface with the public which had been necessitated by the volume of complaints.
  46. At the same time, Biffa were addressing the particular problems created by London Waste. On 17 November, at a contractual and operational meeting with London Waste, the Biffa representatives expressed their concern about excessive odour arising from waste delivered, mainly on Mondays. It was a matter which London Waste said that they would look at.
  47. On 2 December 2004, Mr Thair met Mr Wootton of the EA on site and various matters were reviewed. In a follow-up letter of 8 December, Mr Thair said:
  48. "Upon review of the site's operational techniques a series of changes in working practice were identified and implemented. These successful changes formed the basis of the Odour Management System that will be adopted throughout the operational life of the site.
    I trust you find this system satisfactory and in view of the improvements delivered on site within the required timescales, deem the Enforcement Notice to be complied with."
  49. Although it does not say so, it seems that the letter included a copy of Biffa's Odour Management System, also referred to in the evidence as an Odour Management Plan ("OMP"). Curiously, no such Plan had been included in the Working Plan (paragraphs 24 and 25 above), which had formed the basis of the original permit. The references to odour in the Working Plan were in standard terms and of general application; the OMP of December 2004 was therefore the first occasion on which Biffa addressed expressly the particular odour problems being experienced at Westmill 2. It is unfortunate that they were not required to anticipate and address these in their original Working Plan.
  50. The first section of the OMP included this important paragraph:
  51. "To date the most common processes of pre-treatment are either kerbside/source segregation or sorting at a Transfer Station/MRF facility. This has resulted in a change in the age and composition of waste being delivered to the site. Rather than waste being collected and delivered directly to the site, the segregation process, or delivery to and subsequent sorting and loading at a transfer station is adding as much as 7-14 days to the age of the waste at the time of delivery. This, combined with the changes in composition i.e. plastics, glass and paper being removed for recycling, has resulted in the waste delivered to site containing a much greater organic proportion that has already commenced the degradation process."
  52. One of the waste acceptance techniques identified in the OMP was:
  53. "Upon delivery to the site all wastes are checked for their acceptability. Where acceptable the Weighbridge clerk shall determine if the load is of odorous nature and using the site radios advise the compactor driver of the delivery."

    This checking process was effectively a paper-based exercise. As to the determination of the odorous nature of the load, the evidence was that this was a difficult, if not impossible, task for the weighbridge clerk: there are a number of subsequent references in the Biffa documents to the persistent problem that the odorous nature of the waste only became apparent when the waste was actually tipped. By then, of course, it was too late to refuse the waste. This is one of a number of areas where there was something of a gap between the written promises to the EA and the reality on site.

  54. On 21 December, Mr Wootten responded to Mr Thair, saying that the OMP "is a good practical programme to ensure the minimisation of odour at Westmill Landfill and implementation of the plan should fulfil the steps required in the notice issued on 10 November."
  55. B4 The Early Part of 2005

  56. The apparent belief that the problem had been resolved was confirmed at the Westmill Liaison Meeting on 12 January 2005, when Mr Thair advised the residents that "Biffa have been deemed compliant with odour emission levels following the enforcement action taken by the Environment Agency. No odour complaints have been received since 10 November 2004." Unhappily, as was to happen time and again over the next 4 plus years, this confidence was to prove a false dawn. There were further odour emissions which generated complaints towards the end of January, and it was these difficulties which led to the first signs of confrontation between the claimants and Biffa.
  57. There was a good deal of evidence about the events in late January 2005. It was all of a similar type and it is unnecessary to set out more than a sample here. Mr Hobbs noted that, although the smell had died down in November and December 2004, it came back again in January. Mr Barr noted that the stench returned on 19 January and remained for a number of days. At the end of the month, he met the new site manager, Chris Lofts, who was apologetic but did not appear to have an answer to the problem. Mr Clark's statement for the EA prosecution said that:
  58. "In January the smell was there at first at the weekends and in the evenings and then we started noticing it on weekdays as well. This time the smell was accompanied by seagulls."
  59. In a letter dated 3 February 2005, Mr Clark wrote to Biffa "to complain in the strongest terms" about Westmill 2. Although a number of points were raised, the principal complaint was about "the unavoidable and utterly disgusting smell". The letter complained about the effect of the odours during the previous summer:
  60. "During the Summer of 2004 we had to contend with the unavoidable and utterly disgusting smell, which although we were promised that a masking deodoriser would be used, still blighted our summer to the extent that we cancelled two BBQ's and had to endure very hot days with all the windows and doors closed! When we did venture into the garden, whether it be for a BBQ or just to sit in the garden we had to put up with countless flies, which the site obviously attracts…Why should my summer be ruined and why should we have to go out for days just to escape it? My concerns are that we will have to put up with that again this summer, which I assure you the residents will not put up with again… I believe that if the problems are not resolved before the summer then the site should be closed down, such is the strong feeling around here! We will not put up with it!...We will not go away until something is done about this!"
  61. Mr Clark lived at Greyfriars, immediately adjacent to the A10 and therefore very close to Westmill 2. He and his neighbour, Mr Roger Hobbs, were at the core of the group of claimants who began to complain more vociferously about Westmill 2. At some stage in February, Mr Clark put a leaflet – the first of four - through many of the letterboxes on the Vicarage Estate. The leaflet contained the following passages:
  62. "WESTMILL LANDFILL… UPDATE…AS YOU MAY OR MAY NOT BE AWARE WE THE RESIDENTS OF THE VICARAGE ESTATE HAVE A LANDFILL ON OUR DOORSTEP THAT IS BLIGHTING OUR LIVES…ARE YOU CONSTANTLY PLAGUED WITH THE SMELL OF GARBAGE OR VANILLA??? THIS IS FROM THE SITE!... ARE YOU WORRIED ABOUT THIS SUMMER? YOU SHOULD BE! PLEASE, PLEASE, PLEASE IF YOU SMELL THE SITE OR SEE THE GULLS OR ARE INUNDATED WITH FLIES RING THE ENVIRONMENT AGENCY ON 0800 807060 AND COMPLAIN, THEY HAVE TO LOG YOUR CALLS AND THIS IS THE ONLY WAY TO STOP THEM….WE ARE IN CONSULTATION WITH MARK PRISK MP, AND COUNCILLOR ALAN WARMAN, BOTH ARE ON OUR SIDE, BUT WE NEED YOU!...DID YOU KNOW THEY ARE BREAKING THE TERMS OF THEIR PERMIT DAILY AS IT STATES THAT 'NO ODOURS SHOULD BE SMELT BEYOND THE BOUNDARY OF THE SITE'!!!!!!"

    The leaflet was signed by both Mr Clark and Mr Hobbs.

  63. At the same time, other residents wrote to Biffa to complain about "the smell of decomposing rubbish" (see the letter from Walter and Maureen Holland dated 6 February 2005).
  64. It is clear that, at this time, there were internal problems with the Biffa site staff, as reflected in Mr Thair's memo to Mr Jenner of 24 January 2005. Amongst other things, that memo said:
  65. "Clearly these additional inputs result in the site's operational manpower being dedicated solely to waste disposal operations, with little if any time for requisite ancillary work requirements, such as odour control system maintenance/deployment, daily litter retention co-ordination, dust suppression etc…."

    It appeared that Mr Thair perceived the problem at the time to be the absence of a site foreman "of suitable calibre" to address the problems. Another Biffa internal document, their review of Westmill dated 8 February 2005, which was circulated to Mr Thair, referred to the recent complaints and identified the odour control systems being employed on the perimeter of the A10.

  66. On 21 February 2005, Mr Thair replied to Mr Clark's critical letter (paragraph 43 above). The letter apologised for the problems that were being experienced and invited Mr Clark to meet him on site to deal with the concerns firsthand. The letter appeared to accept Biffa's responsibility for the odour without qualification. It said:
  67. "We are aware that people living near this cell boundary have experienced odours and I am sorry for the obvious problems you have had. I fully appreciate that our actions to prevent these may be of no interest to you and that your only requirement is that the odours cease. However can I assure you that we are taking this very seriously and already have and are continuing to pursue a number of actions to mitigate any potential future odour problem."
  68. Two days later, on 23 February 2005, Mr Thair met Mr Clark and became aware that a committee of residents had been formed. In an internal email, written on 24 February, Mr Thair noted that he had been told that the residents had paid for experts to inspect the site and comment on its operation/state. Mr Thair had enquired "if this was with a legal slant", and was apparently told that it was not.
  69. In late February/early March 2005, a number of things happened. First, there was a petition which was gathered by Mr Clark and Mr Hobbs which included the names of many of the residents of the Vicarage Estate. On 4 March, there was a meeting with the local MP, Mark Prisk, when the petition was handed in[3]. The following week, a second leaflet was pushed through the letterboxes of the estate, again written by Mr Clark and Mr Hobbs, referring to the meeting and reiterating the importance of calling the EA. The relevant part of the leaflet read:
  70. "Biffa believed they are adhering to their permit now and that the smell has ceased! Well we have smelt it nearly everyday this week! Please, please, please if you smell it no matter how strong, please ring the Environment Agency on 0800 807060 and register your complaint otherwise come the summer we will all suffer, when you get through ignore the touchtone instructions and just hold on for an answer."
  71. There was also a reference to Ware Online, an internet forum used (amongst others) by Mr Hobbs, Mr Clark and Mr Barr, where similar complaints and points of action were discussed. At the same time, the local paper in Ware, The Mercury, contained an article identifying a number of the complaints of the residents.
  72. In a letter to Councillor Taylor of 6 March, Mr Jenner, Biffa's regional manager, referred expressly to the newspaper article and said "we feel it possibly exaggerates the 'campaign' suggestion." The letter went on:
  73. "As you are aware, we are currently tipping waste into the new cell that is adjacent to the A10. The prevailing wind is in the direction of the houses on the other side of the road and any potential odours would therefore be blown in this direction."

    The letter also talked about the works being taken to mitigate the odour problem. It is plain that, internally, Mr Jenner was becoming concerned that the mitigation measures had not pacified the claimants. In an internal email of 13 March 2005, he said that he and Mr Thair believed "this has grown more into a vendetta against the site rather than specific issues." It is, however, noteworthy that no such suggestion was made to the residents themselves. It seems to me, on the evidence, to be an unfounded suggestion.

  74. Instead, Biffa produced the first of a number of news letters, called 'Westmill Update'. This was designed to explain what had been happening. Under the heading Odour Answers, the document read:
  75. "We started filling the site in late June/July. Unfortunately new legislation had just come into effect, which meant that we could only take pre-treated waste – waste that had been through a process to sort and recycle some of it or generally reduce it in volume. This effectively delayed the waste reaching us from its original source and made it more odorous when it arrived. It became obvious that the prevailing wind was blowing odours from this waste in the direction of some houses. We therefore installed an odour suppressor system that comprises of linked aerosol outlets that emit a harmless spray. This actually suppresses the odour molecules but also has a pleasant smell as well. … However this system on its own proved insufficient. We have now constructed a 6 metre high earth bank on the edge of the site adjacent to the road. On top of this, in the next week we are erecting a 2 metre high solid wood fence and on the top of this we will place the new odour suppressant system. We believe that the bank and the fence will suitably deflect, disperse and contain the wind and therefore any wind blow odours. It will also allow a more elevated platform for the odour suppressant system as an additional measure and provide a visual screen to the landfill activity."
  76. At the same time, at the end of March/early April 2005, Biffa met Mark Prisk, the MP. John Dresser, Biffa's Community Affairs Officer, said:
  77. "I hope that at the meeting we were able to cover all the issues raised by the local councillors and residents. More importantly, I hope that we were also able to demonstrate that we are treating the matters very seriously and as a matter of urgency. To my knowledge we are well on the way to resolving all the issues."

    Again, this statement was soon demonstrated to be over-optimistic.

  78. Notwithstanding Biffa's efforts, the decision was taken by the EA to prosecute Biffa for failure to comply with condition 2.6.12 (paragraph 23 above). The prosecution relied on nine breaches of the permit, specifying odour emissions on 25 and 26 August 2004, 4, 10 and 11 November 2005, 21 and 31 January 2005, and 3 and 13 February 2005. The prosecution was supported by a number of short witness statements provided by some of the lead claimants, including Mrs Claire Chandler, Mr Stewart Clark, Mr Derrick Barr, and Mr Roger Hobbs. It appears that the fact of the prosecution was not notified to Biffa until 8 June 2005.
  79. As is explored below, the prosecution had a tortuous history. It was originally found that condition 2.6.12 was unenforceable, a decision which was subsequently reversed by the Divisional Court. Finally, on 25 October 2007, Biffa were convicted on four of the nine charges, namely those relating to the odour emissions on 4 November 2004, 21 and 31 January and 3 February 2005. The remaining five allegations, including those relating to the August 2004 incidents, were dismissed. No other prosecution was ever brought by the EA for breach of this, or any other, condition of the permit.
  80. B5 The Spring and Summer of 2005

  81. Odour problems arose again in March/April 2005. On 8 March, Mr Hobbs sent Mr Thair a record of the week ending Sunday 6 March. Odour was noted every day that week, and sometimes it was said to be "really strong". Mr Thair was slow to respond, but then asked if complaints could be made immediately so that the smell could be investigated. Mr Hobbs sent further messages to Mr Thair for the remainder of the month identifying various odours. On 25 March, he informed Ms Clare Richards of the EA that the odour had "come back with a vengeance". He referred to it as a "sickly stink". He notified Mr Dresser of Biffa of the return of the odour at the same time. On this occasion it appears that the smell was actually from the cherry deodoriser. This fresh wave of complaints about the odour, whether emanating from the waste or the deodorisers, went on into April.
  82. On 8 April 2005, Mr Clark emailed Mr Thair to say:
  83. "We have suffered today with the smell from the landfill! The deodorisers had little or no effect as all we got was a garbage smell. I hope this will be resolved by the summer as I dread another summer like last year!"

    Mr Hobbs sent a similar complaint to Mr Dresser who replied by email on 12 April 2005. The email asked Mr Hobbs to accept Biffa's apologies. It went on:

    "Please be assured that we are doing all the things we said we would do and the next stage, the fence erection, is, as we said scheduled to start next week, hopefully Wednesday subject to contractors. However, we reviewed the results yesterday morning and accept we need to move faster so have decided to commence the capping of the waste much earlier than planned in addition to continuing with the other activities…"

    The email concluded by expressing the hope that the proposed work "will succeed in dealing with the problems."

  84. It appears that the smell over the Easter weekend was particularly bad. Mr Dresser apologised for this in emails to Councillor Warman and Mrs Karen Clark, both sent on 12 April. In the latter email, he said "we thought we were really making progress but obviously not fast enough." A problem had been noted that part of the deodorising system was not working. On 21 April, Mr Dresser, in another email to Councillor Warman, admitted that he was aware that there were odour problems the previous day and ascribed them to the fact that Biffa were working in an area very close to the road. He said that they stopped the operation when they were advised of the problems.
  85. Complaints of a similar nature were made by both Mr Hobbs and Mr Clark in their emails in the latter part of April. A typical email was Mr Clark's of 25 April 2005 which read:
  86. "I have just been outside to drop the kids off to school and the stench is repulsive! It turned my stomach and I am not usually that squeamish! It is totally unacceptable, if that had been yesterday during the nice weather our day would have been ruined. I don't hold out too much hope for our summer this year!
    If it doesn't improve we will use all means at out disposal to rectify this situation. Why should we have to put up with this? It's not fair, this really is a blight on our lives and is causing vast amounts of unnecessary stress and concerns."
  87. In his reply, sent the following day (26 April 2005) Mr Dresser again said that the problem "was due to tipping near the road again to bring the levels up so we can cap. We only do this when the wind is in the right direction…we fully understand your comments and do appreciate that you are working with us …"
  88. This renewed level of complaint was also noted in the Westmill Liaison Meeting on 20 April 2005. The cause of the increased volume of complaints can perhaps be found in paragraph 4 of the minutes when Mr Thair reported that Cell 1 was "up to final level in places". He went on:
  89. "Normally they would fill the entire cell to final level before applying a permanent cap. Because of the odour issues they are working progressively; getting sections to final level so that a temporary cap, which will contain the odour, can be applied as soon as possible in strips."

    This report identifies a direct correlation, which is itself unsurprising, between the raised level of the filling works in the cell closest to the Vicarage Estate, and the renewed complaints about odour emission.

  90. As to the odour problems generally, it was minuted at the same meeting that:
  91. "MT agreed that some residents had certainly been affected by odours from the landfill site, however odour is a transient and localised problem and the ultimate solution will be the cell cap. Biffa are now using neutralising agents instead of deodorisers and will shortly be installing "hit-and-miss" fencing (to disrupt the air flow) and extending the bund. In short, there is an ongoing programme of measures that will be used to solve the odour issues; the EA's decision is probably months away and solutions cannot wait for this."

    This last was a reference to the EA prosecution, due to be heard in September 2007. Mr Jenner, who was also at the meeting, confirmed that Westmill was the first Biffa site that had been restricted to taking pre-treated waste only. He said that "the lessons learnt at Westmill will be used at other sites."

  92. Whatever Biffa said at the Liaison Meetings, it was unfortunately the fact that the odour emissions continued. In early May there were further complaints: in his email of 4 May 2005, Mr Clark referred to the "vile smells". It is unnecessary to set them all out here but the email from Mr Hobbs to Mr Dresser of the Biffa on 9 May 2005 is perhaps indicative of the problems at the time:
  93. "Today was the worst day ever of smells from the landfill. I actually phoned direct to your community affairs and in response Mike rang and said he would be coming over to the Vicarage Estate to investigate the stench we were enduring. Upon Mike's arrival I tried to explain it was pure rubbish we were smelling but sadly he more or less insisted that it was the deodorisers that were smelling which I totally believe he has to say as he works for Biffa. I may not have a calibrated nose but I think I know the difference between rubbish and your deodorisers after enduring this problem for nearly a year and the more we look at your site the higher it gets….I think that the things your company has said and done are just to keep us quiet which will not happen. I really felt today was the worst ever as Clare Richards from the EA learned by the number of calls they received which she and a colleague came out to investigate…. I totally believe although you have moved further back we will still endure the smells we have done for the last few months and our summer will be totally ruined like last year which is totally unacceptable and is ruining our way of life."

    Similarly angry views were expressed in the posts on Ware Online by Mr Clark, Mr Barr and others. The same pattern is discernable in those posts: a bad smell is identified and there are complaints and criticisms; then the smell, and the complaints, go away and there is a lull; then, 2 or 3 weeks later, the posts start up again, claiming that 'the smells are coming back with a vengeance'."

  94. At the same time, the internal Biffa emails reveal a certain impatience with the residents. Mr Thair's email to Mr Dresser of 10 May suggests that he thought that some of the residents would say one thing "to my face…and yet to you they completely change the story. If they are committed to working with us to solve their issues…then this is not exactly what I would call co-operation." The proposed email to be sent to Mr Clark, however, made no such suggestion.
  95. On the 11 May 2005 there was a Vicarage Estate Liaison Meeting, attended by four representatives of Biffa, the local councillors, Mrs Taylor and Mr Warman, and both Mr Hobbs and Mr Clark. Under the heading 'Complaints and effectiveness of works', there was the following:
  96. "Stuart Clark asked if tipping would be suspended for the day if odour was bad and Dave Jenner agreed there was the potential to do this or tip in another area of the cell. However, as the cell was nearing completion there were limited alternative tipping areas….Roger Hobbs advised that odour was still present some evenings and also when it rained. Julian Hickerlin [a resident of another residential area close to the site] asked if there was a formal of system of odour checking. Mike Thair said the site staff undertook odour surveys – both on site and in the Vicarage Estate – on a regular basis."

    Mr Jenner reiterated Biffa's intention to stop the problem and confirmed that it was a priority. Councillor Warman had advised that a public meeting was being planned to discuss the odour issues at the end of May or early June.

  97. Biffa's keen awareness of the difficulties that they faced, in advance of the proposed public meeting, can be seen in an email of 24 May which Mr Dresser sent to Mr Beatty of Hertfordshire County Council who was to chair the meeting. He said:
  98. "As you aware we are doing a lot to sort out the problem. Hopefully people will know this, but they may not, and whilst their own desire will be for the odour to stop completely we would like them to know of our genuine concerns and intention to do all we can to prevent problems.
    We clearly do not expect Mark (Prisk MP) to speak on our behalf but could he possibly open with an explanation of the discussions, the work we have done so far, the future work (capping has now started) and the plan to finish that cell early. I can give you a brief description of all this if you wish. This may save a lot of time. Clearly we don't want to spend much time on this as they all want to ask the two inevitable questions: "when is it going to stop?" and "are we getting compensation?" All we can do at this meeting is to repeat what we have already said.
    Hopefully the situation is improving and – I am loathe to say this as it will inevitably evoke Sod's law – we have not received a complaint for a few days. It is also difficult to know the real extent of the problem and the areas really affected. Whilst we fully appreciate that there is a problem I'm sure you know what I mean."
  99. The public meeting took place on 3 June 2005. Prior to that meeting Biffa prepared some background notes. There was a suggestion in the evidence that, because these were sent to a councillor prior to the meeting, the notes contained some sort of PR spin and should not be regarded as an accurate guide to Biffa's thought processes at the time. I reject that suggestion; it was one of a number of occasions when Biffa seemed to want to escape the consequences of their own contemporaneous documents, on the basis that what they were doing or saying to the residents was not necessarily what they actually thought was correct.
  100. In my view, the notes contain a useful summary of the history and stated that, by the time of the Liaison Meeting on May 11, "all the issues except odour had been resolved". The notes referred to the various mitigation measures that had been taken. Biffa's conclusion was in these terms:
  101. "We believe the measures we are taking are working. We remain very committed to resolving this problem. We have undertaken all the actions promised and fully appreciate that the only result the residents seek is to be rid of any odours from this site. It is worth noting that the general standards of operation have improved considerably since Biffa took over and we continue to strive to achieve our policy of being good neighbours with an open door approach to local communities."

    There was no suggestion in these notes that the residents' complaints were somehow exaggerated or unjustified.

  102. The minutes of the public meeting on 3 June included the following:
  103. "The EA were asked what would be the outcome of a successful prosecution – EA indicated £10,000 at Magistrates Court, unlimited fine at Crown Court. The £10k was met with laughter from the floor!...
    The EA were asked if legislation could be changed – Mr Wootton [of the EA] explained that the EA could not change government legislation. EA heckled by public!
    Question from floor relating to phasing of Westmill 2. [Mr Jenner] explained that Cell 2 and future cells would move further away from Vicarage Estate. Floor asked if surface water lagoon would be filled with waste. Mr Jenner responded No, and explained dedicated surface water management schemes.
    Raymond Brown [Mercury Newspaper] asked if Biffa would consider compensation for residents affected by odour. Mr Dresser explained that Biffa do not consider individual compensation but can offer community funding via Biffaward. General questions ensued…
    Question from floor relating to origins of waste. Mr Jenner explained that following the prohibition of 'local' direct delivery waste (pre-treated waste), contracts had been secured with company's operating transfer stations which are located outside of Ware and the County.
    Conclusions
    It is clear from the turnout that Westmill odour is an issue within the Vicarage Estate area, however it was noticeable that only 8 members of the general public were vocal during the meeting and all 8 with 'intent'!…
    The EA and Council were perhaps subjected to more 'hostile' questions and heckling than Biffa, particularly relating to the integrity of the EA's ownership and shortcomings relating to environmental policing."
  104. We also get some idea of the mood of the meeting from an e-mail from Mr Alan Thomas to Mr Clark the following day. Mr Thomas, who lived in The Larches, a part of the Vicarage Estate close to the A10 where a number of the claimants live, said that he had not suffered from smells and that his principal concern was property values and the possible detrimental effect of the campaign on those values. He noted that, at the meeting, "feelings were running high." Mr Clark replied, saying that the fact that the Estate was so close to the landfill was now showing on solicitors' searches, but that on a more positive note, "there was no evidence that it had had any effect on house prices".
  105. On 28 June, Biffa had a further meeting with London Waste. The Biffa representatives, who included Mr Jenner, indicated that they had exhausted all available odour mitigation techniques on site, and that the EA had identified a significant increase in complaints during the past few weeks. They said that the EA had also intimated that they might take further action against Westmill 2 and might even apply to suspend the permit. Biffa told London Waste that this would clearly be unacceptable, because the reinstatement of the permit, if revoked, would be extremely difficult to procure. Accordingly, Biffa told London Waste that they had little option but temporarily to exclude London Waste inputs from the Westmill landfill site with effect from Monday 4 July 2005. The Biffa letter of 4 July summarised the reasons for this decision, and offered disposal facilities at other Biffa sites.
  106. The complaints to which Biffa had referred in their meeting with London Waste were frequent in June and July 2005. In his e-mail to Mr Dresser of the 10 June, for example, Mr Hobbs said that that day had been "a really bad day, with at least 15 calls to the EA before 08:30am". The same level of complaints, both in terms of frequency and vigour, were also apparent from the posts on Ware OnLine.
  107. On 4 July 2005, there was another Westmill Liaison Meeting. Mr Clark noted that, during the preceding week, the problem with odour had improved. It is unclear if that improvement was linked to the decision to suspend the London Waste element, because that suspension did not formally commence until 4 July, the date of the meeting. Be that as it may, the respite was short-lived. On 7 July, Mr Clark emailed Mr Dresser to say "After all the promises on Monday [at the meeting] I have to say I was really disappointed when the smells came back today. I really thought you had cracked it!"
  108. The odour emissions on 7 and 8 July were significant: as Mr Clark noted to Mr Dresser the following day, there had been 'loads of calls' to the EA. He went on:
  109. "It is repulsive around here today and all what was said on Monday is history now as we are back to square one! It is my son's 8th birthday today and we were hoping to sit outside. SOME HOPE that idea is ruined! It really is not on, and I suggest that you think about taking a 100% industrial from now on! It is the only way forward, don't you agree?"

    Shortly after this, following an adjournment of the prosecution at Biffa's request, Mr Clark became concerned that Biffa were thinking of pleading 'not guilty' to the prosecution brought by the EA. In an email of 14 July, Mr Clark said to Mr Dresser: "Surely you are not thinking of pleading not guilty after the year of hell your company have put the residents through? That would be the biggest slap in the face I could ever imagine and any trust that you had with us would be irretrievably lost! You should take this as a way of saying 'Yes we realise that this has caused a problem and thus we will take the rap' because in essence that is what has happened!"

  110. There was a Westmill Liaison Meeting on the 25 July 2005. The pattern of some days without complaints, and some days with complaints, continued into August.
  111. On 19 August 2005 there was a Plea and Directions Hearing at the Hertford Magistrates' Court in the proceedings involving EA's prosecution of Biffa. As Mr Clark had suspected, Biffa pleaded 'not guilty'. Some of the claimants were outraged at this and so, at the next Westmill Liaison Meeting, on 23 August 2005, the minutes noted the following:
  112. "As a result of Biffa's 'not guilty' plea, Stuart Clark and Roger Hobbs, another resident, have told Biffa that they want nothing further to do with the liaison meetings. Biffa have contacted them and are trying to repair communications."

    As to the ongoing odour problems, it was minuted that:

    "Removal of organic waste stream hasn't totally solved odour problems but it is less severe. Dudley Hills [a claimant, but not one of the 30 lead claimants] commented that it isn't as bad as others make out."

    Mr Jenner said that if the organic waste stream was not put back in, Cell 2 might take two and half years to fill, with implications for the site finishing date. This was a reference to the decision to suspend deliveries from London Waste.

  113. Mr Hills followed up his statement at the meeting in an email to Mr Dresser dated 12 September 2005, which was written in answer to a request for information from Mr Dresser. Mr Hills said:
  114. "Thank you for your email. I have spoken to some of the local residents who live in Greyfriars, Wheatsheaf and The Larches and they say they have not had any dust problems. They also say that the smells we occasionally get are now not as they were at the beginning of tipping and they also commented that they believe others are over-emphasising the problems at present."

    This is an indication that, for all the complaints made to and about Biffa by Messrs Hobbs, Clark and Barr, many other residents of the Vicarage Estate (like Mr Thomas, referred to in paragraph 70 above) were entirely untroubled by such odours as there were from Westmill 2.

    B6 The Autumn of 2005 and the Winter of 2005/2006

  115. A lower level of complaint continued for the rest of the summer, although there were lengthy periods where there appeared to be no odour problem at all. On 11 October, Mr Clark was able to tell Mr Dresser that "We have not experienced smells for a number of weeks now". Similarly, on the 19 October, Mr Hobbs asked Mr Dresser to "keep up the good work".
  116. It seems plain from the other documents that the diminution in complaints in September 2005 was the result of the capping of Cell 1 in September, and the starting of works, at a lower level, in Cell 2. Indeed, the Biffa review of the 27 October 2005 makes exactly that point, noting that, although there were 98 complaints in August, there had only been 2 complaints in October. Should it be in doubt, I find as a fact that the cessation of working in Cell 1 and the starting of work in Cell 2, which was further away from the Vicarage Estate and where work was at a much deeper level, was the principal reason for that falling away of complaints.
  117. As was often the case, the cautious optimism to which I have referred did not last very long. On 21 November 2005, Mr Hobbs emailed Mr Dresser to say:
  118. "Just when we thought the worst was over for the time being yet again the smell of rubbish has returned with a vengeance."

    Under the new grading system preferred by the EA, Mr Hobbs rated the odour at 8 out of 10. Mr Hobbs said "this must be due to a lack of cover as we are out of sight of Cell 2 at the moment".

  119. On any view, despite the odd problem, there was a significant falling away of odour problems during the winter of 2005-2006, even for the seven claimants identified above. It seems that, although the problem had not completely gone away, it was nowhere near as bad as it had been the previous summer or, indeed, the previous winter. However, some of the residents and their representatives were still anxious about the re-emergence of the smell in the summer. Thus at the Westmill Liaison Meeting on 15 February 2006, Councillor Beatty asked if, when the weather got warmer, there might be an issue with Cell 2 odour again. Mr Jenner advised that Biffa had done what was feasibly possible but that a space had been left in Cell 2 should any issues arise. In addition, he said, Biffa were exploring options of inert and other waste schemes, although they were not readily available.
  120. On the 4 April 2006, the EA prosecution was dismissed at Hertford Magistrates' Court by District Judge Crabtree. Mr Croxford QC appeared for Biffa at that hearing to argue that condition 2.16.12, by referring to the perception of an authorised officer of the EA, was unenforceable because it introduced an element of subjectivity into the offence, which undermined clarity and foreseeability and affected the traditional role of the court as the fact-finding tribunal. He argued that the condition was ultra vires because the EA had no power to remove or circumvent the fact-finding role of the court, or to impose a condition that affected matters of evidence. That submission was upheld by the District Judge. The reaction of the residents to this decision was understandably incredulous.
  121. The EA were very concerned by the decision of the District Judge, as is apparent from the email of 18 April 2006 from Ms Richards of the EA to Ms Annabelle Tighe of EHDC. Importantly, the e-mail indicated that the EA were unaware of any further odour management systems that Biffa could implement to control all odour, "short of stop[ping] accepting any odorous waste". Ms Richards indicated that the EA had not yet decided whether or not to appeal. Shortly afterwards, an appeal was launched, although it was not considered by the Divisional Court until the end of the year.
  122. Unhappily, the dismissal of the prosecution coincided with the return of the odour. In an internal Biffa email of 7 April, Mr Dresser referred to Mr Hobbs' reaction in these terms:
  123. "I have just spoken to him and he is not a happy bunny! To start with they are all annoyed at the court case outcome; that's to be expected. However he/they are getting stroppy and say the "it's all starting to happen again". He said that they had two days of really bad smells, that he went up to Poles Lane today and the smell is really bad, the birds seem to be coming back in greater quantities and there is now dust…
    I'm sure some of this is a reaction to the result of the case. However, he says it isn't and that the problems are beginning to re-occur now the warmer weather is back. He says they're getting ready to really complain like hell about those things. I actually asked if he wanted come back on the liaison group so he could discuss these issues and his reply was a very clear No! I don't think they are making these things up."
  124. The reply from Mr Peter Hughes of Biffa began:
  125. "What a surprise!! Apologies for sounding flippant, it's been one of those weeks!
    We've had SW winds today so firstly that wouldn't have affected him around his abode, but a possibility along Poles Lane towards Hanbury Manor. He appears to be going out [of] his way to detect odour so that he can make a complaint! An off site assessment was carried out this afternoon around the Vicarage Estate, and no odour detected…my thoughts are that they will be out on us for any eventuality especially when he appears to be walking along Poles Lane to determine how bad the odour is, if any?...
    I hope this helps you fight against this persistent moaner – let's hope the wind blows in from the south …always!!"

    This new note of belligerence on the part of Biffa was to become more manifest as the months passed.

    B7 The Spring and Summer of 2006

  126. With the return of the warmer weather in April and May 2006, and the increasing height at which Biffa were working in Cell 2, the odour problems returned. There was reference to both these factors in the third leaflet produced by Mr Clark for the Vicarage Estate. That read:
  127. "As some of you may be aware the court case against Biffa was taking place this week, unfortunately the case was thrown out by the judge (Biffa had some high powered QC working for them). For more information please read this week's Mercury. The smells are unfortunately returning on a regular basis, not very strong but definitely there, we're in for another horrendous summer, make no mistake this will affect us all! We need your support now more than ever, we must band together, and that means us all, don't think someone else will do it for you, unless we all join forces Biffa will win and that means another 12 years, YES 12!!! of smells and stress for us all. Our house prices have fallen as have sales in the area, and are you aware that the landfill comes back on all our searches for prospective buyers now! We must continue the fight by ringing the EA… every time you smell it, no matter how strong and if you can Environmental Health who are helping with the fight now…We can win but we need each and every one of you reading this leaflet to pay your part otherwise you only have yourselves to blame, please don't say you haven't got the time, I haven't got the time, I make the time!!!!"
  128. There can be no doubt that the rejection of the EA prosecution on legal grounds incensed some of the residents, in particular Messrs Barr, Hobbs and Clark. This led to further articles in the Mercury and a protest on the A10 with placards referring to 'King Pong'. It appears that Biffa became aware of the problems that their victory might create. In an email to Councillor Taylor of the 18 April, Mr Dresser noted that, whilst the residents "were not out for blood before the case and did not really complain, it now seems impossible to get any real information from them." There can be no doubt that the decision had an adverse effect on the relationship between Biffa and the residents of the Vicarage Estate.
  129. On 10 May 2006, at the Westmill Liaison Meeting, Biffa announced a decision temporarily to cap a third of Cell 2, as that part was closer to the residents and the weather was warming. Biffa also referred to their OMP for the year, which they had sent to the EA. When asked what they would do if the OMP did not work, Mr Hughes, the new site manager, said that Biffa "would continue to try to resolve the issue, if not in one way, then they would try another." At the meeting, Biffa acknowledged that, during April, they had received 34 complaints, which was more than during the winter months, where an average of 10 complaints each month was received. In addition, there was a detailed discussion about the possibility of restricting Biffa from dumping household organic waste within 250 metres of residential properties. HCC announced that they were considering whether there were exceptional circumstances that might lead them to revoke the planning permission altogether. Nothing further came of this suggestion.
  130. On the same day, Mr Dresser of Biffa reported back to Mr Jenner, following the meeting. Referring to Ms Richards of the EA, who had attended, he said:
  131. "Judging from Clare's attitude, she and her EA colleagues are mightily annoyed about the court case outcome. As you know they are going to appeal. I should think they are out for Westmill blood which is no help to Peter [Hughes]. We walked Vicarage yesterday and I could occasionally just detect a very slight odour."

    The email also referred to the EA's decision on 9 May to score Biffa a '1', which meant an emission of odour. This was addressed by Mr Hughes in an email that he sent to Mr Dresser on the same day, in which he said that the decision was based on a number of complaints the EA had received over a period of two weeks. He said that he had told Ms Richards that Biffa would challenge the decision on the grounds that Westmill had received 34 complaints for April, not 40 as suggested, and were not aware of the number of complaints over the previous two weeks. He criticised the Councillors for complaining about odour from organic waste when, some months before, they had not been in favour of inert-based waste streams for Westmill 2.

  132. In May and June 2006, increasing number of complaints were logged with the EA and also with Ms Kang at EHDC. Some of these complaints were doubtless generated by the fourth and final leaflet produced by Mr Clark under the heading 'Stop the stink!' That said:
  133. "HAVE YOU NOTICED A 'DUSTBIN' LIKE SMELL RECENTLY? YOU MAY OR NOT BE AWARE THAT THIS IS IN FACT THE WESTMILL LANDFILL SITE JUST OPPOSITE THIS ESTATE. WE LEARNED FROM ONE OF YOUR NEIGHBOURS THAT YOU HAVE BEEN SUFFERING THE SMELL WITHOUT REALISING WHAT IT WAS! WE HAVE BEEN SUFFERING THIS SMELL AROUND GREYFRIARS, WHEATSHEAF DRIVE AND DOVEDALE FOR THE PAST 3 YEARS! WE ARE FED UP WITH IT AS IT RUINS OUR DAILY LIVES, WHY SHOULD THEY BE ALLOWED TO GET AWAY WITH IT? WE HAVE BEEN FIGHTING BIFFA FOR THE 3 YEARS WE HAVE BEEN SUFFERING, WE NEED YOUR HELP PLEASE! THE MORE PRESSURE WE PUT ON THIS COMPANY, THE MORE PRESSURE WE PUT ON OUR MP'S AND MEPS, THE MORE THEY WILL HAVE TO STAND UP AND TAKE NOTICE. DON'T LET THEM GET AWAY WITH IT. MAKE YOUR VOICE HEARD. YOU CAN DO THIS IN A NUMBER OF WAYS…"

    There were then detailed references to the various phone lines.

  134. At the Westmill Liaison Meeting on the 28 June 2006, it was announced that the EHDC had confirmed that they would visit the site to see if any action could be taken. Ms Richards of the EA said that there had been about 40 odour complaints but that there were issues with the reporting system which meant that she was unable to give a precise figure. All calls were logged and detailed information taken from the callers, but due to the provisions of the Data Protection Act, not all those details could be passed onto Biffa. Ms Richards said that, as a result of the decision by the District Judge, the EA were not able to take action due to the wording of the Permit, "which they were not able to enforce". Mr Dresser said that, whether the EA visited or not, it was still an issue for Biffa that calls were being made, and he assured everyone that action was being taken by Biffa to try to resolve the issue.
  135. A certain level of complaint continued. At the Westmill Liaison Meeting on the 16 August 2006, it was noted that there had been 29 odour complaints in June, 24 in July "with only 18 to date in August". At paragraph 6 it was minuted:
  136. "D. Barr advised that the odour from the site was intolerable. However, that it was not as bad this year as last. This could be due to the works moving away from Dovedale, but it was still very unpleasant. He added that clothes and furnishings smell, and that there had been many flies over the past few weeks. The majority of the time, he was unable to go outside. He does not phone the Environment Agency every time it smells, but only when it is severe."

    Ms Richards of the EA, who was also present, added that last week "it had been the worst she had ever smelt". Mr Dresser extended his apologies. Mr Barr said that it was getting better "apart from the past couple of weeks". Mr Barr also said that "he was aware the smell would get worse as Cell 2 got higher, but acknowledged that the bunding and fence had helped".

  137. Some odour emissions continued in September and were the subject of contemporaneous notes from both Ms Kang of EHDC and Ms Richards of the EA. They seemed to be linked to the work at higher level in Cell 2. But the notes also reveal the sporadic nature of the odour events, and the intermittent nature of the smell.[4]
  138. At the Westmill Liaison Meeting on 5 October 2006, Mr Hughes of Biffa said that final waste levels were being reached in Cell 2 and they hoped to complete that within the next two weeks. He then warned the residents that Biffa were looking to engineer both Cells 4 and 5 at the same time which would allow them to work on different parts of the site dependent on wind direction and therefore mitigate odour issues. It was recorded that 51 odour complaints had been received in August, which were "collectively due to hot weather, winders, and reaching final waste levels in Cell 2". Mr Hughes expressed his sincere apologies for this. Mr Barr, the lead claimant, informed the meeting that he alone had made 11 complaints in August.
  139. Other residents noted that the odour issues were ongoing and had not improved, despite Biffa's efforts. Mr Dresser said that Biffa now took considerably less organic waste than the previous year and Mr Hughes said that, realistically, until the County Council changed how waste was collected, the issue would remain outstanding. He also said that the problems were due to the amount of time it took for waste to arrive at the site, emphasising 'the quicker the better'. Mr Barr raised additional odour problems and said that recent weeks had been "unbearable" and that is was unfair for residents to be forced to live under such conditions. He referred to the failure of the odour management system, and concluded that:
  140. "…it was unacceptable for persons to be made to put up with the odour, and that common sense was not to locate such a site so close to residential properties."
  141. It is plain – possibly as a result of comments of this kind - that Biffa continued to recognise that they still had a problem. On 23 October 2006 they convened their own internal odour control meeting in relation to the Westmill site. A number of odour mitigation measures were noted as either in place or required.
  142. On 12 December 2006, the Divisional Court heard the appeal from District Judge Crabtree's decision. In their judgment at [2006] EWHC 3495 (Admin), the Divisional Court rejected Mr Croxford's submission that condition 2.6.12 was ultra vires. Pill LJ said:
  143. "I do not accept the submission that condition 2.6.12 was ultra vires or that it requires the court to convict upon honest evidence from an officer of the agency. I construe the closing words of the condition as requiring evidence relevant to the requirements of the condition from an authorised officer of the agency as a necessary ingredient in the case. It is a requirement that is likely to be a safeguard for operators against irresponsible prosecutions. It does not limit the jurisdiction of the court to decide, on the basis of all the evidence presented to it, whether odours had been emitted at levels which offend against the standards and conditions.
    Construed in that way, the condition does not offend against principles required by the criminal law. In the absence of apparatus able to assess the level of odours, the fact-finding exercise may be a difficult one but it is one which the court is entitled and required to make on the basis of the evidence presented. A different wording would have been used had it been intended to take the drastic step of excluding the court's fact-finding function when an offence is alleged, and the closing words of the condition do not have that effect.
    I have set out the required monitoring methodology in detail because it demonstrates, first, the extent of the operator's duty to monitor and, secondly, the close co-operation contemplated between the operator and the officers of the Environment Agency in achieving environmental protection. The procedure provided does not support a construction of 2.6.12 which gives the first and last word in determining whether a breach of condition has occurred to the officer of the Agency. His opinion provides the necessary starting point for a prosecution and is likely to be treated by a court as important evidence. The power and duty of the court to perform its usual function of making a judgment on the basis of all the evidence before it is not affected."

    B8 2007

  144. On site, the complaints in the earlier part of 2007 again appeared to be linked to the working at high level on Cell 2. When, in October 2006, Biffa started infilling Cell 3, the number of complaints again fell away. That remained the position into 2007. At the Westmill Liaison Meeting on 11 January 2007, it was recorded that there had been 15 complaints in December, but the majority of those had not come from the Vicarage Estate, but from another locality. Mr Hughes said that Biffa were trying to mitigate the odour through bunding and fencing with odour control. Mr Barr was present at the meeting and confirmed that he had only called twice since the previous meeting in early October.
  145. On 5 March 2007, Mr Hughes sent an email to a Mr John Devine, of Biffa, in relation to odour problems at another Biffa site. Mr Hughes said:
  146. "A lot of work has been undertaken at Westmill over the last two years and by no means have we defeated it yet we are in a better position today that we were yesterday!
    Westmill's issues are waste related odour (the back door effect as I call it) and is our biggest nuisance with the local residents. In the early days of Cell 1 "proximity" was the biggest issue, the active Cell being less than 100 metres from the residents! Some of our solutions have been:
    By adopting the above measures in 2006, we were fortunate to reduce odour complaints by 50% from the previous year and as always it is seasonal! "
  147. At the Westmill Liaison Meeting on the 29 March 2007, Mr Hughes, who was still the site manager at Westmill 2, noted that there had only been 4 complaints in January, but that there had been "a poor period in February". However, he said that no complaints had been reported to his knowledge in March. He admitted that there had been a particularly bad two day period in February "for which he wholeheartedly apologised". It was said that this was in part due to the adverse weather conditions which damaged the neutralising spray system. Complaints had continued, at a relatively low frequency, during March 2007 but, thereafter, the complaints began to increase again. It is difficult not to conclude that this was the direct result of the warmer weather and the higher working level being attained in Cell 3.
  148. At the Westmill Liaison Meeting on 7 June 2007, Ms Karin Da Costa was introduced as the latest site manager of Westmill 2. She was the fifth site manager in less than three years, a turnover which was, in my view, caused by the difficulties created by the odour, and Biffa's failure to deal with them. Ms Da Costa was a more impressive occupant of the hot seat, with a professional and determined manner. Many things were to change as a result of her appointment, in particular a rather more 'no-nonsense' approach to the residents of the Estate.
  149. At the meeting, it was recorded that there had been 18 complaints in April and 21 complaints in May. Mr Barr said that there had been particularly bad days on the 13/14, 16, 17 and 19 of April, and 17, 22 and 29 of May. Ms Da Costa explained that Cell 3 was now half full at the end closest to the homes, which was now the final waste level. She noted that the wind had not been favourable. Mr Barr noted that the weather being warmer, the odour was stronger.
  150. Councillor Taylor was unhappy that the site had appeared to improve, and now appeared to be getting worse again. Ms Richards of the EA pointed out that the site was run very well and that "Biffa do their best. Whilst they may be breaking terms of the permit, the site is run well". She confirmed that "until the EA can prove the odour issue in Court there is little that they can do". Mr Willett, Biffa's Regional Manager, confirmed that Biffa "do try their best, but regrettably there were occasions that it did not work but that they were continuing to try to improve".
  151. Other participants in the meeting said that it was "intolerable" that the permit was continuingly being broken, and whilst they appreciated what was being done they queried whether further action could not be taken. Ms Richards said that the EA's prosecution was due to be re-heard in the Magistrates' Court in September 2007 "but that they were looking to build another case".
  152. Internally, it appears that Biffa were aware that the problem of odour emissions at Westmill could not be easily resolved. This is confirmed by an internal report prepared by Mr Andrew Allum, Biffa's Regional Environmental Manager, and dated 21 June 2007. This referred to the "extremely large number of complaints" during 2005, due mainly to the proximity of the site to residential housing "and lack of controls in place at the time". The report noted that whilst landfilling had moved away from the majority of housing, and Biffa had put in place a number of control measures, odour was still the main complaint from the local residents. The report then went on to deal with what had been discovered on the day of Mr Allum's audit.
  153. Amongst the criticisms recorded, Mr Allum noted that the odour control system was not covering all the area and very few nozzles were working, so the system "had little effect on the odour leaving the site". The criticism was also made that the site staff were unaware "of the intensity or extent of the off-site odour prior to the audit, despite the odour-monitoring plan stating the need for more regular odour inspections at sensitive receptors". The report also criticised the waste cover which was thin and was mainly what is called carfrag (the remains of motor vehicles) which, said Mr Allum "does not suppress odour very well". He said that, bearing in mind the sensitivity of the site to odour issues, more suitable cover could be utilised, as stated in the Odour Management Plan.
  154. Mr Allum's conclusions were as follows:
  155. "The site is operated well, with many measures now in place to reduce odour migration including good compaction, temporary capping, scavenger wells, regular odour monitoring inspections and a perimeter odour control system.
    The main issues arising from the audit are as follows:
    1. An offensive odour was detected outside of the site boundary.
    2. Insufficient proactive monitoring of sensitive receptors as required by OMP.
    3. Odour control system was ineffective due to its limited extent and lack of working nozzles.
    4. There was no proactive gas extraction on cell 3.
    5. Fresh waste deliveries being more odorous.
    6. Cover material and thickness was inappropriate for a site with numerous odour complaints.
    7. Odour Management Plan does not fully reflect what is being done on site."
  156. Mr Allum also wrote to Mr Dean Willett of Biffa on the 27 June about three odour complaints received the previous day. He said that an odour survey completed by a Biffa representative confirmed the presence of waste odour in the Dovedale/Larches area, despite the fact that the odour control system was in operation and all operations were stated to be "normal". Having noted that there was little Biffa could do about wind direction, Mr Allum went to say:
  157. "…But we can do something about the acceptance of malodorous waste. We need to seriously look at coating this waste in deodoriser at the transfer station or taking it to another site that is less sensitive to receiving malodorous waste… When we had this problem with London Waste we ended up banning them from site as they would not work with us on this issue. Just because the transfer waste is internal, is no excuse why we should keep accepting it in its current form."
  158. On 29 June 2007, Biffa's Planning Manager, Mr Rhodes, noted in an email that "there are still major, on-going odour issues at the site and it is still controversial locally, although this seems like it would be a situation which will not go away for quite some time. Therefore we are still committed to taking projects forward, but handling them and when the timing of information getting in to the public domain is obviously important".
  159. However, in the face of all these various emails, Ms Da Costa felt able to send an email, also dated 29 June, which stressed that "despite not being able to eradicate the odour problems that Westmill 2 has experienced since 2004/05, the situation has certainly improved. I am sure many would argue that moving away from the housing estate has helped us considerably, however, odour mitigation measures we have put in place have certainly contributed towards a reduction of odour complaints since the infilling of Westmill 2 has commenced."
  160. In addition, in the light of Biffa's subsequent stance (to the effect that it was the EA's responsibility to deal with complaints about the site), it is interesting to note that Ms Da Costa in this email noted that, because the complainers called the EA direct, it was difficult to judge the severity of the odour at the time and also difficult to know if the same complainer called more than once. She differentiated between the complaints to the EA and the very few complaints that were received on site.
  161. There continued to be further complaints about the odour in July and August. On the 2 August 2007, the residents of the Vicarage Estate received a letter from a firm of solicitors, Hugh James, saying that they had been instructed to investigate the possibility of pursuing compensation claims against Biffa and referring to an evening meeting for all interested residents in early September. This was the start of the process which has led to this Group Litigation. It appears that Hugh James had been alerted by the forthcoming rehearing of the EA prosecution.
  162. Although Biffa have been scathing about the 'ambulance-chasing' nature of Hugh James' approach to the residents at the Vicarage Estate, which has apparently been repeated by Hugh James in respect of landfill sites all over the country as part of the firm's commercial strategy, it seems to me that (save for the important point at paragraph 568 below), it is outside the scope of this Judgment to go into such matters.
  163. Biffa remained very conscious of the "reasonably high level of complaints at the moment" (see the internal email of 10 August 2007). In that email, the complaints are put down to the weather and proximity/level of tipping. The email went on to say that "August was a very critical month because we do not want any action group to develop prior to the court case in September or the H James meeting". A subsequent email of 15 August 2007 also referred to the odour complaint problems at Westmill and stated that Biffa were tipping "at the highest level in Cell 3 and hope to go into the new Cell 4 in about one month". The email suggested that the waste from the Edmonton transfer station, which had long been identified as a source of particularly odorous waste, would be diverted to another site.
  164. On 16 August 2007, at the Westmill Liaison Meeting, Ms Richards said that there had been a drop in complaints and that, whilst in the previous year there had been approximately 124 complaints, over the same period this year the number was 78. Ms Da Costa stated that the hot weather and high tipping level over the summer months "often leads to more complaints". Complaints continued, although at a lesser frequency, throughout September 2007.
  165. At the next Westmill Liaison Meeting, on 17 October 2007, Ms Da Costa said that there had been 28 complaints in September, which was lower than the number received in 2006, and that one complaint had been received in October since infilling had started in Cell 4. No particular matters were raised in connection with odour at that meeting.
  166. On 25 October 2007, the substance of the EA's prosecution of Biffa was finally determined by District Judge Crabtree. It will be remembered that the nine charges went back over three years to 25/26 August 2004, 4, 10 and 11 November 2004, 21 and 31 January 2005 and 3 and 13 February 2005. The District Judge considered the nine charges by reference to the decision of the Divisional Court and adopted an approach which sought to ask, first, whether there was credible evidence from an officer of the Environmental Agency in support of the charge laid. If there was none, the charge was dismissed. If there was, the District Judge then sought to see whether there was credible supporting evidence from others. If there was, then Biffa would be convicted on those charges.[5]
  167. Having adopted that approach, he concluded that the EA's evidence in support of the charges relating to 25 and 26 August 2004, 10 and 11 November 2004, and 13 February 2005 was insufficient. The reasons for this are a little difficult to discern, although it seems that the August allegations failed because they were early in the story and the EA had not carried out proper monitoring on those occasions. Biffa were therefore acquitted on those five charges. On the remaining four, in connection with 4 November 2004, 21 and 31 of January 2005 and 3 February 2005, the DJ considered that the EA's evidence was sufficient and that it was also supported by the evidence of the residents of the Vicarage Estate. Biffa were duly convicted of those four charges.
  168. The level of complaints kept up in October and November 2007. At the Westmill Liaison Meeting on 11 December 2007, Ms Richards advised that there had been 23 complaints in October, and 25 in November, although only 2 in the first ten days of December. There was a comment that the odour was generally worse on Mondays, as waste had been left over the weekend. Again, Mr Willett advised that the increase in complaints might be linked to external factors, which was a reference to the fact that Biffa had reached the top of Cell 3. As to that, Ms Da Costa said:
  169. "…a temporary cap had been placed on Cell 3 and a gas system installed. Cell 3 was not been filled to final levels in order to minimise odour during the summer. Cells 1 and 2 have been capped and seeded. Cell 4 is being filled currently with the gas extraction system and odour control in place in and around the cell. Cell 5 engineering will start in April 2008…they had moved into Cell 4 as soon as it had been engineered as waste levels would be low in the new cell to minimise odour."

    B9 The Worsening of the Relationship between Biffa and the EA: Late 2007-2008

  170. At about this time, a significant problem arose in connection with the communication of complaints by the EA to Biffa. Biffa alleged that they were not receiving prompt notification of the complaints, which, they said, meant that they could not make their own assessment or take any short term mitigation measures. This problem should, however, be seen in context. There is no doubt that it was part of the general worsening of the relationship between the EA and Biffa following the conviction. The relationship was to deteriorate further in early 2008, when Ms Richards left the EA and was replaced by Mr Andrew Pynn.
  171. There is no doubt that Biffa regarded Mr Pynn as more formal and, bluntly, more difficult to deal with than Ms Richards. Many of the documents referred to in the remainder of this Section of the Judgment illustrate only too vividly the worsening relationship between Biffa and the EA. The residents of the Vicarage Estate, who were after all the people most affected by the odour emissions, did not seem to be high on anyone's list of priorities.
  172. On 14 December 2007, Biffa sent the EA the post-conviction plan which Ms Richards had requested. The covering letter made clear that Biffa had decided to ratchet up the pressure on the EA. This can be seen in a number of different ways. First, the letter was sent by Mr Savory, a Director of Biffa who, although aware of some of the difficulties with the site, had not previously been involved in the day-to-day running of Westmill 2. Secondly, the letter accused Ms Richards of making comments which Biffa considered "were inappropriate and potentially prejudicial" and "were also potentially damaging to our effective day to day working". Mr Savory said that he would respond further when he had the formal minutes of the meetings at which the remarks were made.[6] He then went on to say that Biffa had been placed in an untenable position regarding the communication of complaint information, alleging that the EA had received 19 complaints in November which they had not passed on to Biffa, a situation which Mr Savory described as "wholly unacceptable". He noted that Ms Richards had explained that this was as a result of a change of personnel at the relevant call centre.
  173. Features of Biffa's post-conviction plan were:
  174. a) An attempt to play down the four proven breaches of the permit. The plan said:
    "This question relates back to the period August 2004-February 2005 and appears to have no bearing as to the present and future operation of the site. The issues triggering the prosecution and the judgment of the court are well known to the Agency in Biffa. The prosecution centred round fugitive fresh waste odours which the Agency accepted, in its experience, when giving evidence through its officers, was unique and unusual."
    b) A distinction between condition 2.6.12, which was said to be a "stand alone" provision, and the other conditions dealing with operating techniques.
    c) The contention, which in one sense remains central to Biffa's case, that condition 2.6.12 was at odds with the Landfill Regulations and other Directives, because the latter talked of 'due diligence' and a defence of 'appropriate measures', which found no expression in the condition itself. The plan said in terms:
    "This would mean that compliance with operating techniques in the specification or other more specific conditions of the permit could provide a defence."
  175. The plan also emphasised that the breaches were four years old and that "no further enforcement action had subsequently been threatened by the Agency and that recent inspection of the facility has confirmed that the Agency is satisfied with the environmental control and odour management systems currently employed." Those systems were then detailed in sections 7 and 9 of the plan.
  176. On 31 December 2007, Mr Jones of the EA replied to Mr Savory's letter. He reported that the draft plan was not yet acceptable and said that he would provide detailed reasons shortly. In dealing with the issue as to the notification of complaints, he said:
  177. "The most mature situation is of course the one where the operator communicates directly and constructively with their local community, and does not attempt to use us (their environmental regulator) as their complaints handling/incident response/communications consultants. We obviously encourage members of the public to report odour and other polluting incidents to us on our hotline, for reasons including so that we can gather evidence. We have no problem then with passing this information to operators when convenient to us. However, something has gone wrong if an operator feels they can out-source to us their responsibility to receive and act on complaints from members of their local communities. In this circumstance, it might be better if a potentially beneficial informal arrangement was discontinued until a clear understanding of roles and responsibilities allowed it to be resumed."
  178. This is a matter to which I shall return below. However, it seems to me that Mr Jones was right to point out, in response to Mr Savory's spiky comments, that it was for Biffa, as the operators of the site, to deal with complaints from the residents of the Vicarage Estate, and not the EA. Moreover, in his response on 2 January 2008, Mr Savory did not address the possibility of Biffa setting up their own complaints hotline and instead said that "the arrangement that did exist previously was working well, but if your intent is to withdraw this facility then it is clearly something we do need to discuss as a matter of urgency". In a further response on 10 January 2008, Mr Jones said that the EA favoured continuing the arrangement for the time being "subject to making sure that all parties are clear on the very different responsibilities of Biffa as the operator and of ourselves as your environmental regulator".
  179. The EA's detailed response to the post-conviction plan was provided by way of letter dated 15 January 2008. Further details of a number of matters were requested. These included:
  180. "5.0 You do not give details of any action taken on your own part to establish the cause(s) of the offence(s), appearing to rely on the detail of the court judgment. Please give further details of your investigation methodologies, and in particular whether the level of performance of such preventative or odour-mitigation measures as were in place was a contributory factor to the offence(s).
    6.0 You state that effects were of sporadic local impact, with no associated health concerns. Please provide the basis for these conclusions.
    Note: we believe that this assessment conclusion may be likely to result in a serious underestimate of the actual or potential offence to any human senses and/or impairment of amenity…this is based on the level of concern/loss of amenity expressed to us by complainants…
    7.0 Please provide further details of the basis for the assessment of the potential of repetition as "low".
    Note: based on receiving in 2007 over two hundred complaints of a similar nature to those which resulted in the prosecution, we question the conclusion of your assessments.
    9.0 We note your reference to the site Odour Management Plan initiated in 2004 and which you state is regularly reviewed. Please give details of what additional measures, other than those listed in the post conviction plan, which you have considered for implementation, such that you can demonstrate that you have taken all appropriate measures to prevent and mitigate odour pollution.
    Note: given the large number of complaints referred to above, we will expect you to demonstrate thorough consideration of available appropriate measures, including a suitable and proactive mechanism to promptly identify and validate all individual complaints and associate with their causes".
  181. Mr Savory replied on behalf of Biffa on 28 January 2008. The main burden of this letter was to refer to the various odour mitigation measures that had been taken since 2004. One key paragraph read as follows:
  182. "We do not accept that we are underestimating the actual or potential offence to human senses and/or impairment of amenities. In paragraph 22 of the judgment, DJ Crabtree states "it does not appear to me to have been contested by the Agency…that condition 2.6.12 is not an absolute prohibition on the emission of odour". Accordingly, off site odours which do not exceed the threshold of 'substantial harm' do not breach the permit condition(s). In our opinion many complainants do not make any such a distinction and consider any odour from the site, or elsewhere, to constitute a loss of amenity. Of the nine informations presented by the Environment Agency, 5 were dismissed because the Court had real doubts as to the reliability of the evidence and whether the odour threshold had been exceeded".

    Mr Savory went on to say that Biffa accepted that over recent months there had been "an undesirably high level of complaints regarding this site". He suggested, without a shred of evidence in support, that this was as a result of the activity of Hugh James.

  183. On 4 February 2008 Hugh James sent a claim letter to Biffa indicating a private nuisance claim on behalf of 104 households on the Vicarage Estate. The particulars relied on the 9 original allegations that formed the basis of the EA prosecution, despite the fact that 5 of them had been rejected. An injunction was threatened. The letter proposed various methods of resolution of the dispute, including informal mediation. It appears that there had been, and continued to be, a certain amount of liaison between Hugh James and the EA which was, in the circumstances, unsurprising.
  184. On 20 February 2008, the EA wrote back to Mr Savory dealing with his response to the request for further information in relation to the post-conviction plan. On the issue of complaints, Mr Trevelyan of the EA noted that Biffa currently expected to rely on the EA to promptly notify Biffa of all complaints received and said that "whilst this was an interim measure, he believed that it was neither appropriate nor a sustainable ongoing arrangement". He said:
  185. "Biffa should in my opinion take full responsibility for proactive management of odour and other complaints by using all appropriate measures, so that you can act promptly to investigate and resolve them".
  186. After a lull, the complaints about odour started to increase again. At the Westmill Liaison Meeting on 4 March 2008 it was noted that there had been only 4 complaints in December 2007, 12 in January and 24 in February. Mr Pynn said that the EA were carrying out a site audit which included consideration of gas management, waste acceptance and odour control. Councillor Taylor advised that when she had been campaigning the previous year, no one complained to her about odour (which I consider to be another indication that the vast majority of residents were not concerned about odour from Westmill 2). She also said that she was disappointed with the number of complaints received and that long term-measures were needed to control odour. She added: "Compensation will not stop odour and she did not want to see the Vicarage Estate labelled due to odour". As to the state of the works, Ms Da Costa said that about a third of Cell 4 had been filled and preparation on Cell 5 would start in April 2008. There still remained some filling to be done on Cell 3.
  187. In March, correspondence continued about the post-conviction plan. On site, particularly smelly loads were noted – by the weighbridge operator himself - from the Biffa transfer station in Barking.
  188. The site audit that Mr Pynn had referred to was carried out on 26 February, in accordance with a written methodology. The focus of the audit was on compliance with conditions relating to waste types and quantities, and operating techniques. It was also designed to assess in detail the management of odour emissions, specifically waste pre-acceptance and acceptance procedures; the odour management techniques employed at the site; and to review the use of the odour management plan. It was said that the EA auditors would be on site for two separate days, with day one involving an assessment of how the waste acceptance procedures and the odour management plan were used for day to day site operations, and with day two involving a review of the site's written procedures so as to compare them with the findings on the first day. It was said that all procedures would be assessed against the requirements of the PPC Permit and Sector Guidance Note Landfill Sites S5.02.
  189. As complaints about odour began to increase again, on 15 May 2008, Mr Trevelyan wrote to Mr Savory dealing with the post-conviction plan. Mr Trevelyan said that the EA's Central Assessment Panel agreed with the local Area recommendation, to the effect that Biffa should continue their ongoing consideration of what constituted the appropriate measures to be taken by the operator to ensure that the offence was not committed again. He also said that the EA considered that Biffa remained a competent operator in respect of this permit, despite the conviction. There was also a reference to the audit and the fact that the audit report was going to be discussed on Friday 16 May at the Westmill site by Mr Pynn.
  190. The audit report was indeed discussed on that occasion by Mr Pynn. Biffa complained at the time, and again at the trial, that this report was not sent out in draft first, so they had had no opportunity to comment upon it until it had been completed. Mr Pynn said that he had discussed aspects of the report with the Biffa management team at Westmill in May, as part of the audit process itself. There was and is no statutory requirement for an audit report such as this to be sent out in draft to the operator, and it does not seem to me that the sending of a draft is a critical or necessary component of an efficient auditing system. In my judgment, Biffa's complaints, then and now, were simply part of their belligerent post-conviction stance. They were determined to find fault with everything that the EA did.
  191. In the audit report itself, Mr Pynn noted that, following a peak in 2005, the number of odour complaints to date in 2008 were greater than the same time in 2006 or 2007. As to the detail, he made a number of criticisms, including the failure to properly characterise some waste streams as set out in the EA guidelines.
  192. He also criticised the use of 'carfrag'[7] waste as the best cover material and the large amount of exposed waste that was visible throughout Cell 4, and said that it was questionable whether the amount of cover used was sufficient. In the detailed part of the audit, when dealing with the use of carfrag, Mr Pynn identified the pluses and the minuses for using this material and said that one of the reasons that it was used was financial, because carfrag "was waste material and so provides revenue."
  193. Mr Pynn also recorded in the audit report that some of the loads were observed to have 'moderate-strong' odour. Those odorous loads were exclusively from the Biffa transfer stations in Barking and Edmonton. Mr Pynn said:
  194. "One of the reasons for this may be that these transfer stations are very large and may have waste building up inside for a few days and during this time the waste at the bottom of the pile is likely to have become odorous. This was discussed verbally during the audit and some efforts appear to have been made to limit the amount of this odorous waste being sent to Westmill…the efforts should be increased."

    He also said that, during the audit, "it became clear that waste was not routinely inspected at the entrance even when it arrived in open vehicles or skips."

  195. On 16 May 2008, Mr Willett of Biffa sent an internal email to a number of the Biffa management representatives relating to the site audit, which had been provided the previous day. Mr Willett said that some of the findings would be contested. However, he referred to the potential difficulties with the transfer stations at Barking and Edmonton. He said that:
  196. "Inputs from Barking and Edmonton represent approximately 30% of Westmill's input and are a long-term strategic outlet for the waste. It is of vital importance to Westmill's performance and the transfer stations' long-term viability that they continue to dispose of their waste at Westmill. We do not want to get into a situation where the EA or Biffa decide that the transfer stations cannot continue to tip at Westmill because that will severely jeopardise the long term security of all the operations."

    As the Biffa witnesses confirmed in their oral evidence, effectively this meant that, for financial reasons, Westmill still had to take the waste from Barking and Edmonton. One possibility floated by Mr Willett was that any malodorous waste was taken to Biffa's site at Ugley, where there were fewer proximate residents.

  197. On 20 May, Mr Savory emailed Mr Jones of the EA to make a variety of points on the audit and to complain, in relation to those loads described by Mr Pynn as having a 'moderate-strong' odour, that there were no details of the odour assessment methodology or of the specific loads so described. This was a curious response given that, as Mr Willett's own internal memo made plain, Biffa were well aware that the problems were with the loads from Barking and Edmonton. Mr Willett had not needed further particulars in order to come to that conclusion.
  198. At the same time, Mr Savory and Mr Jones collaborated so as to ensure that the Biffa leaflets that were to be provided to the residents of the Vicarage Estate contained an agreed note from the EA regarding complaints handling. After discussions as to the draft, such a note was agreed and included in the leaflet.
  199. On 21 May 2008, at the Westmill Liaison Meeting, Councillor Taylor stated that she had been advised by a local resident there had been "unbearable odours" from the site over the May Bank Holiday weekend. Mr Willett said that Biffa had only received 8 complaints in May and no significant complaints over that weekend so he was surprised to hear of this. Councillor Taylor said the complaint had come from a local resident living near Poles Lane and that the resident was "not usually someone who complains". The complainant was not happy with the way in which they were "sent around the houses" when contacting the EA.
  200. Interestingly, given the increasing heat in the Biffa correspondence (particularly from Mr Savory), Mr Pynn said at the same meeting that, once Biffa had responded to the audit report, a timetable would be agreed to bring in measures and that "he had met with the Biffa Director and had a positive meeting and he believes that significant improvements to odour control can be made."
  201. At the end of May, the weighbridge operator at Westmill 2 again noted three loads from Barking which were smelly, two of which were "only smelt on tipping". This again highlighted the problem that, notwithstanding the promises to the contrary, Biffa's weighbridge clerk could not always determine odour prior to tipping.
  202. Despite what Mr Pynn had believed was a constructive meeting in relation to his audit report, when Biffa responded formally to the report on 4 June 2008, the letter, written by Mr Savory, was extremely combative. Issue was taken as to the use of carfrag, and the level of cover available. As to the carfrag, Mr Savory said:
  203. "It is wholly inappropriate for Environment Agency staff to assume, with no evidence whatsoever, that our principal reason for using carfrag waste is economic. Such a statement suggested bias on the part of the author."
  204. That was, in my view, a plain misrepresentation of what the audit report said: it had merely mentioned that carfrag had a financial advantage to the operator, which nobody disputed. The suggestion of bias was entirely unwarranted and demonstrates all too clearly Biffa's change of tactic. The real point, which Mr Savory ignored, was whether carfrag was a proper cover material, and we now know (as the EA, at the time, did not) that Mr Allum of Biffa had already raised a query on that very issue. Thus it seems from this correspondence that Biffa had decided to become increasingly aggressive with the EA and to take issue on every point that arose, irrespective of its merits. I consider that such a stance remains evident in some aspects of Biffa's defence to this claim.
  205. It is unnecessary to set out in any detail lengthy extracts from Mr Savory's letter. It ran to 7 closely typed pages and took issue with every element of the audit report. Extracts include:
  206. "The EA have acknowledged, but not reported, that for the duration of the audit there was no evidence of odour being emitted from previously filled and covered areas of the site.
    Materials are placed progressively and 'as soon as practicable'. There are operational and health and safety constraints affecting the placement of daily cover which generally prevent it from being applied immediately…
    We do not accept that there were large areas of uncovered waste or that the amount of cover being used was not sufficient. We do however note that the EA agreed that there was no odour emitted from the covered waste area during the audit which calls into question the basis of the statement made in the audit report…
    Waste acceptance criteria
    The audit report is misleading and in error in relation to waste acceptance criteria.
    Waste streams with a LoW 20 code, and those of a similar nature including waste from transfer stations (191212) are dealt with as municipal type waste and therefore only require more basic characterisation…Furthermore, testing of such waste would be impractical and inappropriate, and acceptance criteria are not available…
    The statement in relation to level 3 WAC testing is also misleading and in error. The EA's position on waste inspection at the site entrances set out clearly in Environment Agency Sector Guidance Note IPPCS5.02 referenced above. The guidance clearly states in relation to enclosed vehicles 'visual inspection is not usually practical' whereas the audit report seeks to infer that it is practical to open some vehicles at the entrance. Please explain why this is the case…
    Odour management plan
    We do not accept that the amount of cover being used on previously tipped waste was inadequate as during the period of the audit the relevant environmental objectives were being met. However we will review the use of daily cover to determine whether further improvements can be made.
    Summary
    The observation that odours are evident during tipping does not appear in the body of the report and there is no data on the number of occasions when this was observed by the EA during the audit. Also there are no details of the waste, vehicles used, date and time of delivery, weather conditions etc. relating to each occurrence. The failure to provide proper particulars means that Biffa is unable to submit a detailed response and makes no admission in relation to these unsubstantiated assertions.
    Recommendations
    Waste acceptance: we will continue to assess waste streams, including their potential to cause unacceptable odours off site, for their suitability for disposal at the site. We reject the EA's proposed waste acceptance test of 'waste of a potentially odorous nature' as it is highly subjective and not based in sound science."
  207. Further smelly loads were noted by the weighbridge operator in June at the same time that the number of complaints continued to rise. On 16 June, Mr Jones of the EA responded to Mr Savory's letter, saying that "many of the comments raised in your letter do not relate to such inaccuracies but rather give Biffa's opinions regarding the findings and matters of detail such as supporting data." The letter also reminded Biffa that, whilst the EA was continuing to communicate complaints promptly to Biffa, this mechanism did not relieve Biffa of the duty to carry out their own proactive monitoring of all of the impacts of the operations at Westmill on the environment, including human receptors.
  208. There was a spate of complaints on 12 and 13 June 2008 and, not for the first time, the odour control system malfunctioned. Ms Da Costa issued a Schedule 1 notice, that is to say a notification of abnormal emissions and significant adverse environmental effects. As to the mitigation measures, Ms Da Costa recorded in the notice that the mobile odour control system was utilised while the site was operational and, on reviewing waste inputs, a proportion of the normal daily inputs were diverted elsewhere. It appears that the trigger for this Schedule 1 notice was Mr Pynn's email of 13 June, which said that the odour was an emission, and that therefore a Schedule 1 notification form was required.
  209. This event immediately led to Mr Savory complaining to Mr Jones of the EA in a letter of 19 June. Mr Savory said that Biffa did not agree that a Schedule 1 notice was required, because there was nothing to suggest that the incident had caused any significant pollution or had had any significant adverse environmental and health effects. I find that on this occasion (although this letter was, again, part of Biffa's new strategy to be much more aggressive on every issue), Mr Savory's underlying point was a valid one: the permit envisaged that there would be odour emissions that would not be serious enough to constitute a breach of condition 2.6.12, and would not therefore require a notice. Indeed, that is a point that lies at the heart of this case.
  210. Complaints continued through June and into July 2008, and there was a batch of complaints on 16 July. On that date, Mr Pynn wrote to Ms Da Costa, saying that the EA had received a number of complaints relating to odour and that Mr Pynn had attended and found that "a strong waste odour to be present and persistent throughout several residential streets in the estate." He enclosed a copy of his CAR 1 form, which was a report of his investigations on that day in the Vicarage Estate. He noted a strong odour in Dovedale at 12:11pm which he said was "highly likely to be emanating from the Westmill Landfill site." He said that the odour persisted in Dovedale and The Larches for at least twenty minutes before he moved onto Poles Lane. He returned to Dovedale and experienced the same odour again. He said, therefore, that there was a breach of odour condition 2.6.12. The letter asked for an explanation as to why the breach had occurred and requested a further Schedule 1 notification.
  211. Ms Da Costa replied on Monday 21 July. For the first time, Biffa disputed the findings of odour made by the EA and referred to their own assessments. Ms Da Costa accepted that those assessments had identified the presence of waste smells on the Vicarage Estate, but she said that the smell varied "from faint to moderate only being localised in a few roads and not throughout the entire estate. The smell was quite persistent, nevertheless it is our perception that the odour emission was fairly described using the EA guidance".
  212. Biffa's own inspections had been carried out at a different time to the inspections carried out by Mr Pynn. It appears, therefore, that odour, which was usually transient and thus came and went without warning, was accepted by everyone as being present on 16 July, with differing views as to its intensity, based on assessments carried out at different times in different places by different people. There was, therefore, nothing necessarily contradictory in that evidence.
  213. Furthermore, it seems to me a great pity that the EA and Biffa did not carry out joint inspections, rather than inspect particular areas at different times and then produce separate reports. Unhappily there is almost an air of childishness about the exchanges as to what happened on 16 July, particularly as the underlying position could not be contested: the weighbridge clerk himself had noted, that there were "very, very smelly" loads from Biffa transfer stations at Westmill 2 on 16 July.
  214. On 23 July 2008, at the Westmill Liaison Meeting, Ms Da Costa admitted that the odour system had failed on 10 and 11 June, but said that Biffa did not know what had caused the other complaints, except that the wind direction had changed. Mr Willett said that Biffa "had looked at the odour control system and types of waste brought in and there was nothing abnormal. The basic problem is that waste is odorous". Yet again he floated the possibility that other waste streams may need to be diverted away from the Westmill facility.
  215. Ms Da Costa also said that it was very difficult to confirm the reliability of the complaints received. This appears to be a continuation of the spat about the events on 16 July, and the different assessments that had been undertaken. It was the first time at any of these Liaison Meetings that the bona fides of the complaints was being challenged. It was, therefore, a further manifestation of Biffa's new, aggressive attitude.
  216. As I shall make clear in Section I5.6 below, Mr Barr's Odour log provides graphic evidence as to the effect of the odours on him personally. It can also be similarly instructive to read the logs for some of the days when there was no odour. An example is on this same day, 23 July 2008, when Mr Barr wrote:
  217. "I cannot believe it. We were able to enjoy a hot day (26 degrees) in the garden without any smells from the tip. We had a couple of the grandchildren, got the kids paddling pool out, a small BBQ and later Di and Dave called back too. I cannot remember the last time we were able to do this on a hot day – bloody marvellous. We have had this for four days now."
  218. On 29 July, Mr Pynn dealt with Mr Savory's letter to Mr Jones of the EA dated 19 June (paragraph 150 above). The letter dealt with certain details surrounding the audit which had been challenged by Mr Savory. I find that it was a measured response to the original, rather overheated letter.
  219. Further odour emissions continued into August 2008 and on 11 August, Mr Pynn sent Ms Da Costa a CAR form for the odour experienced outside the site boundary on the previous Friday (8 August). Again, Biffa carried out their own assessment. Again, the timing of these assessments was different, and so too were the results, although it appears that, again, at least some odour was detected by the Biffa representatives. It is difficult not to conclude that, as had happened the previous month, both sides were playing games with the data and endeavouring to make cheap points at the other's expense. In that vein, on 15 August, Biffa said they were 'surprised and disappointed' by the EA report (a phrase commonly used in blustering correspondence of this type), and alleged that the Biffa odour assessments were not at the level described by the EA.
  220. Although the complaints dropped off in September, there were more complaints in October 2008. On 9 October, Mr Pynn sent Ms Da Costa a further CAR form in relation to odour on the Vicarage Estate the previous day (8 October). The report identified in some detail "a strong unpleasant odour" in Dovedale, which Mr Pynn describes as "partially degraded mixed biodegradable waste which was the same type of odour that is often present on the tipping face at landfill sites." Mr Pynn said that the intensity of the odour varied from 'moderate to strong' and was "offensive and present at a level likely to cause significant offence/annoyance to the local residents." Mr Pynn recorded the same odour in Wheatsheaf Drive and Greyfriars at a 'moderate to strong' intensity. He said that the odour experienced on 8 October constituted a non-compliance with condition 2.6.12. Further odour complaints were recorded on 16 October.
  221. On 23 October, Mr Jones responded on behalf of Biffa, taking issue with the CAR form relating to 8 October. This time the issues were rather different. Mr Jones said that it was Biffa's case that the odour on 8 October was the result of the installation of gas infrastructure, which works the EA had approved, and that such works did not fall to be regulated by the odour condition. He said:
  222. "It is perverse to apply this condition to an activity approved, whether explicitly or implicitly, by the Agency carried out in accordance with the procedures provided to the Agency."

    This also appeared to be setting up one of the arguments maintained by Biffa at the trial, to the effect that the permit conditions had to be judged by reference to what Biffa were doing on site, and the reasonableness of that conduct, rather than the results of their activities.

  223. Mr Jones went on to say that any off-site odour from the landfill was wholly due to the engineering works which the EA had approved and that the comment about the exposed waste not being covered ignored those engineering works. He concluded:
  224. "We strongly dispute any allegation that the preparation attention and care in undertaking these works was anything but of the appropriate standard required. We are endeavouring to work very hard with the Agency but we are beginning to lose confidence that we can be regulated in a fair and even-handed manner, particularly when we have such a response to an activity undertaken to improve the site and carried out with as much care as possible."
  225. At the same time, at the Westmill Liaison Meeting, Ms Da Costa also dealt with the works to the gas system. She said that those works would take 5 weeks to complete and that the works had led to 12 complaints on one day and 23 complaints over a three day period. One resident of the nearby residential estate, Downfield Court, said that residents had experienced odour in the last 3 days and that they had "given up complaining to the Environment Agency." Ms Da Costa referred to the free 0800 number that Biffa had set up. Other references were made as to progress on the works on Cells 3 and 4 and the completion of the construction of Cell 5.
  226. Coming back to the correspondence between the EA and Biffa, there is no doubt that one of the difficulties was the delay on the part of the EA in responding to the letters raised by Biffa. Thus, the CAR form on the 8 August 2008 (paragraph 159 above) generated a heated response from Biffa on 15 August, but that letter was not responded to by the EA until 27 November 2008. That cannot of itself be a criticism of the EA, given that they were hard-pushed dealing with a large number of landfill sites in the locality, but the continuation of an argument about the level of odour on a particular day three months previously was unlikely to be particularly constructive. Notwithstanding that, there was then a sterile debate in the correspondence as to who smelt what, where and when.
  227. At all events, in Mr Pynn's letter of 27 November, he made the valid point that people working at the landfill, who were likely to have a greater overall average degree of exposure to odours generated on site, may be likely to have decreased sensitivity in relation to the waste odour. He said:
  228. "Waste odour may or may not be offensive to people employed by waste management companies but it may be highly offensive to, for example, somebody relaxing in their garden."

    In that letter, Mr Pynn also enclosed a copy of the EA's interim odour assessment methodology which replaced the previous odour guidance. It contained detailed provisions entitled 'Odour Incident Substantiation and Evidence Gathering Methodology'.

  229. On 3 December 2008, Mr Pynn wrote to Ms Da Costa recording that, between July and the end of November, the EA had recorded three separate instances of non-compliance with condition 2.6.12, all relating to confirmed odour emissions from the site. He sought information as to Biffa's own odour assessments, and details of all the odour control measures currently in place. It seems clear that this was, at least in part, the EA responding to the increasingly aggressive tone of the Biffa correspondence by becoming more formal themselves, and by seeking this information – much of which they would have had anyway - by way of a written request.
  230. On 10 December 2008, the EA wrote to Mr Jones at Biffa, replying to his letter of the 23 October (paragraphs 161-162 above). The letter was written by Mr Pynn, who maintained that Biffa had been in breach of the condition on 8 October. Thereafter, in December and January 2009, there were further lengthy exchanges in relation to these stale events. It is unnecessary for me to set them out here. They did not assist, in any way, in trying to resolve the underlying odour issues.
  231. On the 16 December 2008, at the Westmill Liaison Meeting, Mr Pynn said there had been some improvements, particularly in relation to Biffa's odour mitigation measures. These included the use of daily cover, improved de-odorising system and gas extraction. The number of complaints, he said, had reduced in November and December, which also suggested that there had been some improvement.
  232. B10 2009 and The New Condition

  233. At the Westmill Liaison Meeting on 24 February 2009, Ms Da Costa concurred that the complaints, which had increased from 8 in January 2009 to 26 in February, had coincided with higher levels of tipping in Cell 4. She said that tipping had moved to Cell 5 in order to mitigate odour. Surprise was expressed that, in view of the recent cold weather, there were any odour issues at all. Ms Da Costa said that there were approximately two more weeks of tipping needed in Cell 4 to reach final waste levels.
  234. Mr Pynn also referred to the incidents, noted above, on 16 July, 8 August and 8 October 2008. He said that the EA had issued a formal warning to Biffa in relation to those three incidents and had said that those could be included in any potential future prosecution. This was the first formal warning that Biffa had received in relation to Westmill 2 and these three incidents were, post-conviction, the only such incidents verified by the EA.
  235. Also at the February meeting, it was formally announced that the EA wanted to amend condition 2.6.12, a possibility first referred to by Biffa the previous year in their post-conviction plan. There was a good deal of correspondence between Biffa and the EA on this topic. Eventually, the condition was amended to read as follows:
  236. "Emissions from the activities shall be free from odour at levels likely to cause pollution outside the site, as perceived by an authorised officer of the Agency, unless the operator has used all appropriate measures, including but not limited to those specified in any approved odour site management plan, to prevent or where that is not practicable to minimise the odour."
  237. One of Biffa's complaints about this new form of words was that it used the word 'pollution', rather than the word 'nuisance'. But where Biffa were successful was in the inclusion of the proviso ("unless the operator has used …"). As we shall see in Section D below, the change to an express 'reasonable care and skill' test is much more in keeping with the relevant legislation.
  238. The new condition, and the proviso in particular, meant that claims against Biffa for breach of the permit would now require a concomitant allegation of negligence. That explains the comment by Mr Benyon, a Downfield Court resident, at the Westmill Liaison Meeting on 21 April 2009, when he said that he thought "the new wording of the odour condition represented a significant weakening of the previous condition." The justification that was offered by the EA was by reference to a national standard. Mr Benyon persisted, and pointed out that if there was odour under the old permit then there was a breach, but under the new system, if there was odour but that the operator was taking all appropriate measures, then there was not a breach.
  239. In response, Mr Pynn said that the EA did not agree with that interpretation and maintained that if there was odour then the operators were not taking all appropriate measures which could include controlling the types of waste imported to the site.
  240. By the spring of 2009, a certain weariness was apparent on all sides, neatly encapsulated by the comment at the February meeting of Mr Whitby of Cemex, who said:
  241. "…they seemed to go round in circles with regard to odour with Biffa doing what they can to address the problem. There needs to be a focus on the underlying issue which is that waste is an odorous job. If Biffa are using the latest technology and turning some waste away from the site then what more can they do?"

    This was a clear statement that, in CEMEX's view, Biffa were to be judged on the mitigation measures and other works they carried out on site, not whether those works prevented odour reaching the Vicarage Estate.

  242. The formal warning that was issued by the EA to Biffa was dated 23 February 2009. As advertised, it was in relation to the incidents on the 16 July, the 8 August and the 8 October 2008. In was in these terms:
  243. "We do not intend to prosecute the Company for the above offences on this occasion. However our decision could change if any further relevant information comes to light, including, but not restricted to, information that:
    The Company is warned that we will take these offences into account if we consider that the Company has committed any offences in future.
    Our current decision not to prosecute the Company does not:
  244. In Biffa's response of 4 March, they reiterated that they did not accept they were in breach on these three occasions. They suggested a meeting to review the regulation and compliance of the installation.
  245. Not before time, a high level meeting was arranged between representatives of the EA and Biffa. It took place on 10 March 2009. Mr Savory wrote a follow-up letter on 16 March 2009 which reiterated a number of points that had previously been made. There was a lengthy paragraph about the passing on of complaints by the EA to Biffa, and another relating to Mr Pynn's audit report of 10 months before. In her own letter of the 2 April 209 Ms Simpson, the EA's Thames North East Area manager, dealt with a variety of points and said that she had asked the EA to be more robust in passing odour complaints to Biffa's staff.
  246. As noted above, from 9 April 2009, the new permit came into force. Complaints continued to be made during the summer of 2009, although these were considerably less frequent, and less strong in tone, than they had been hitherto. But some odour emissions continued, and so too did the belligerent attitude of Biffa towards Mr Pynn. Accordingly, as late in this story as October 2009, there was a dispute about the odour which Mr Pynn had noted on 1 October, and recorded in his CAR1 form, which was sent to Biffa the following day.
  247. In Mr Jones' letter of the 29 October 2009 the following paragraph, taken almost at random, illustrates the almost surreal depths to which the relationship between Biffa and the EA had descended:
  248. "According to the CAR1 you describe the odour between 14.07 and 14.23 to be between low to moderate intensity in The Larches and Dovedale and transient in nature lasting 2-3 minutes. No odour was detected in Wheatsheaf Drive or the Hawthorns and only sporadic odour in Quincey Road. Your assessment based on the call timed at 15.22 was that this did not constitute a breach of the permit. This stronger odour allegedly experienced in Dovedale timed at 15.15-15.40 conflicts with the message delivered at 15.22 and without explanation is deemed also to extend to the Larches. The CAR1 does not record your presence in the Larches at that time."

    It seems to me that this sort of after-the-event nitpicking was completely the wrong approach to the underlying problems at Westmill 2.

  249. These proceedings were commenced on 5 May 2009. It is common ground that the events after the end of October, such as they are, are of no relevance to these claims. It is said by the claimants that, although there were odour emissions, they were at an acceptable level (whatever that might be). That gives rise to an important point relating to the claimants' case as to the appropriate threshold or starting-point, which I address in Section H below.
  250. It is also necessary to reiterate that, as a result of the claimants' acceptance that there is no ongoing claim against Biffa, they do not seek an injunction. The oral evidence from a number of the claimants was all to the same effect, namely that, from some time in 2009, the incidents of odour had reduced to such an extent that they felt that they could put up with them.
  251. B11 Summary

  252. In summary, the outline narrative set out above makes plain a number of things. First, for at least a handful of the residents of the Vicarage Estate, the odours from the Westmill 2 site were an ongoing problem over a 5 year period. But the documents also make plain that, time and again, it is the same handful: principally Messrs Barr, Clark and Hobbs, who wrote the letters, attended the meetings, and campaigned around the Estate. The vast majority of the residents did nothing of the kind, and some expressed the view to Biffa, and to other residents, that there was nothing to complain about.
  253. Secondly, although Biffa took various steps to try and deal with the odour, the impression is of a company reacting to a problem that they were causing, rather than taking proactive steps to ensure that the problem - namely the odour - did not arise in the first place. Thirdly, there is an impression that the EA were of limited help, particularly in dealing with the immediate concerns of the most affected of the residents. All of these matters are addressed in greater detail in Section K below.
  254. In the light of this outline narrative, therefore, it is a source of some surprise to me that a rather better case against Biffa (at least on the part of the seven claimants identified in paragraphs 27 and 28 above) did not emerge in the pleadings. Despite the fact that, at least at one point, the EA were suggesting that Biffa were in breach of the terms of the permit on a regular basis[8], the claimants do not rely on any such case, and there is no material before me which could allow me to reach any such conclusion. A case based on potential breaches of the permit was simply not canvassed in their opening or closing submissions, beyond the clear statement by Mr Cooksley and Mr Bates on behalf of the claimants that they did not seek to prove or rely on any alleged failures to comply with the terms of the permit.
  255. Furthermore, although I consider that Biffa's conduct is properly described as reactive rather than proactive, and there were many occasions when Biffa undertook mitigation measures which had not been in place before, there are no allegations of negligence. Indeed, during the cross-examination of Ms Da Costa, Mr Cooksley QC, on behalf of the claimants, said that he was "not suggesting that the site was being run deficiently" and that, on the contrary, he was suggesting that "you were doing everything you could but you were not succeeding" (Day 11, page 48). This is again despite the tone and contents of some of the EA/Biffa correspondence, particularly post-conviction, which suggests that the EA was not always happy with some aspects of Biffa's operations on site.
  256. Thus, despite the relatively negative impression created by some of the material set out in Section B above, I turn to analyse the law in the knowledge that the claim against Biffa is, and remains, a claim limited to allegations of common law nuisance only.
  257. C NUISANCE : GENERAL PRINCIPLES

    C1 Introduction

  258. Nuisance is a condition or activity which unduly interferes with the use or enjoyment of land. Things such as noise, smoke and smell may amount to a nuisance, but whether or not they give rise to a sustainable cause of action depends upon a balancing of competing interests. Thus a private nuisance will often be an activity which is in itself lawful, but which may become a nuisance because it unduly interferes with a neighbour's comfortable and convenient enjoyment of his land. The creation of smell, in certain circumstances, gave rise to a whole raft of Victorian and subsequent nuisance cases, including Bamford v Turnley (1862) 3 B & S.66 (smells from brick-burning); Rapier v London Tramway Co [1893] 2 Ch 588 (the smell of stables); Attorney General v Tod Heatley [1897] 1 Ch 560 (rubbish odours); and Bainbridge v Chertsey Urban DC [1915] 84 L.J.Ch 626 (the smell from a sewage farm).
  259. Bamford v Turnley is widely regarded as the leading early case on this element of the common law. In it, the Exchequer Chamber overruled the decision in Hole v Barlow (4 C. B. N. S. 334), which had concluded that the activity of brick-burning did not create a nuisance if the location where the bricks were burnt was a proper and convenient spot, and the burning of them was a reasonable use by the defendant of his own land. Bramwell B said:
  260. "There must be, then, some principle on which such cases [burning weeds, emptying cesspools, making noises during repairs] must be excepted. It seems to me that that principle may be deduced from the character of these cases, and is this, viz., that those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action. This principle would comprehend all the cases I have mentioned, but would not comprehend the present, where what has been done was not the using of land in a common and ordinary way, but in an exceptional manner - not unnatural nor unusual, but not the common and ordinary use of land. There is an obvious necessity for such a principle as I have mentioned. It is as much for the advantage of one owner as of another; for the very nuisance the one complains of, as the result of the ordinary use of his neighbour's land, he himself will create in the ordinary use of his own, and the reciprocal nuisances are of a comparatively trifling character. The convenience of such a rule may be indicated by calling it a rule of give and take, live at let live."

    The judge went on to say:

    "I have a difficulty in putting a meaning on the words 'convenient, reasonable and proper,' as there used. 'Convenient, reasonable and proper' as regards the sufferer? No. 'Convenient, reasonable and proper' as regards the defendant? That cannot be, as that might place the nuisance close to the plaintiff, to the entire loss of the power of dwelling in his house. 'Convenient, reasonable and proper' as between the two? Then the nuisance may lawfully be greater, as the defendant's premises are smaller and so his kiln must be nearer. 'Convenient, reasonable and proper' as regards the public good? That I have already dealt with."
  261. The passages referred to above were the subject of detailed analysis by the House of Lords in Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264. That was a case about the pollution of underground water supplies by chemical used in an industrial process and was brought under the rule in Rylands v Fletcher [1866] LR 1 Ex 265. The only speech of substance was that of Lord Goff of Chiveley. There were four particular topics to which he referred: foreseeability; reasonable user; the importance of legislation in environment cases; and the natural use of land. As to foreseeability he said:
  262. "Here, as I have said, it is still the law that the fact that the defendant has taken all reasonable care will not of itself exonerate him from liability, the relevant control mechanism being found within the principle of reasonable user. But it by no means follows that the defendant should be held liable for damage of a type which he could not reasonably foresee; and the development of the law of negligence in the past 60 years points strongly towards a requirement that such foreseeability should be a prerequisite of liability in damages for nuisance, as it is of liability in negligence."
  263. As to reasonable user, he said:
  264. "Of course, although liability for nuisance has generally been regarded as strict, at least in the case of a defendant who has been responsible for the creation of a nuisance, even so that liability has been kept under control by the principle of reasonable user – the principle of give and take as between neighbouring occupiers of land, under which "those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action:" see Bamford v Turnley. The effect is that, if the user is reasonable, the defendant will not be liable for consequent harm to his neighbour's enjoyment of his land; but if the user is not reasonable, the defendant will be liable, even though he may have exercised reasonable care and skill to avoid it."
  265. As to the importance of legislation in environmental cases, Lord Goff said:
  266. "It is of particular relevance that the present case is concerned with environmental pollution. The protection and preservation of the environment is now perceived as being of crucial importance to the future of mankind; and public bodies, both national and international, are taking significant steps towards the establishment of legislation which will promote the protection of the environment, and make the polluter pay for damage to the environment for which he is responsible – as can be seen from the W.H.O, E.E.C. and national regulations to which I have previously referred. But it does not follow from these developments that a common law principle, such as the rule in Rylands v Fletcher, should be developed or rendered more strict to provide for liability in respect of such pollution. On the contrary, given that so much well-informed and carefully structured legislation is now being put in place for this purpose, there is less need for the courts to develop a common law principle to achieve the same end, and indeed it may well be undesirable that they should do so."
  267. In passing, I note that these particular observations were echoed by Buckley J in Dennis v Ministry of Defence [2003] EWHC 793 (QB); [2003] Env LR 34. In that case, when talking about developments which had largely gone ahead pursuant to statutory authority or control, the judge noted that:
  268. "Statute can, of course, deal expressly with the right to bring actions, either preserving or prohibiting them. The common law has contributed by restricting the alleged tortfeasor to disturbances that are reasonably necessary in carrying out the undertaking that has been authorised."
  269. The last part of Lord Goff's speech in Cambridge Water is concerned with the natural use of land. That is, of course, relevant to a claim under Rylands v Fletcher, and not directly in point in the present case. But in dealing with that issue, Lord Goff rejected the idea that, because there was some public benefit in the use of the land for that purpose (the creation of employment etc.), this could make a difference to the defendant's liability. That is a matter to which I return in paragraphs 233-235 below.
  270. Another House of Lords decision which was concerned with Rylands v Fletcher, but which was also relied on by both parties during the course of argument in the present case, was Transco Plc v Stockport Metropolitan Borough Council [2004] 2 AC 1. In that case the claimant had to carry out emergency repair work to its gas main because the escape of water from a pipe owned by the defendant caused it to become exposed and unsupported. The claim was allowed at first instance but dismissed on appeal and, on a further appeal to the House of Lords, the nuisance claim was rejected.
  271. In paragraph 30 of his speech in Transco, Lord Hoffmann reiterated that one major restriction on the rule in Rylands v Fletcher was that of statutory authority: the rule did not operate where the works that were the subject matter of the nuisance claim were constructed or conducted pursuant to statutory authority. As a result, he said at paragraph 38, the rule will usually have no application "to really high risk activities."
  272. In Transco, Lord Hobhouse also dealt with the interplay between the common law and statute:
  273. "55…The situation is entirely under his control: other landowners have no control. In such a situation, two types of solution might be adopted. One would be to restrict the liberty of the user of the land, the source of the risk, to make such use of his land as he chooses. The other is to impose a strict liability on the landowner for the consequences of his exercising that liberty. The rule [in Rylands v Fletcher] adopts the second type of solution as is clear from the language used by Blackburn J and on appeal and was explicit in the statements of Bramwell B at first instance…
    56 This approach was entirely in keeping with the economic and political culture of the 19th century, laissez faire and an understanding of the concept of risk. During the 20th century and particularly during the second half, the culture has changed. Government has increasingly intervened to limit the freedom of a landowner to use his land as he chooses, e.g. through the planning laws, and has regulated or forbidden certain dangerous or anti-social uses of land such as the manufacture or storage of explosives or the emission of noxious effluents. Thus the present state of the law is that some of the situations where the rule in Rylands v Fletcher applies are now also addressed by the first type of solution. But this does not deprive the rule of its utility. The area of regulation is not exhaustive; it does not necessarily give the third party affected an adequate or, even, any say; the government decision may give priority to some national or military need which it considers must over-ride legitimate individual interests; it will not normally deal with civil liability for damage to property; it does not provide the third party with adequate knowledge and control to evaluate and protect himself from the consequent risk and insurance cost. As Lord Goff pointed out in Cambridge Water, the occasions where Rylands v Fletcher may have to be invoked by a claimant may be reducing but that is not to say that it has ceased to be a valid part of English law."
  274. The relevance of the passages of the judgment of Bramwell B in Bamford v Turnley was also highlighted by the speech of Lord Millett in Southwark London Borough Council v Tanner and Others [2001] 1 AC 1, a case about noise nuisance. He said:
  275. "It is true that Bramwell B appears to justify his conclusion by the fact that the resulting nuisances are normally of a comparatively trifling character, and that is not the present case. But he cannot have intended the defence to be confined to such cases. Trifling nuisances have never been actionable, and Bramwell B was searching for the principle which exempts from liability activities which would otherwise be actionable. His conclusion was that two conditions must be satisfied: the acts complained of must (i) "be necessary for the common and ordinary use and occupation of land and houses" and (ii) must be "conveniently done", that is to say done with proper consideration for the interests of neighbouring occupiers. Where these two conditions are satisfied, no action will lie for that substantial interference with the use and enjoyment of his neighbour's land that would otherwise have been an actionable nuisance."

    C2 'Give and Take'

  276. The principle of 'give and take', as set out by Bramwell B in Bamford v Turnley, has also been the subject of more recent interpretation. Lord Goff said that it was synonymous with what, in Cambridge Water, he called the control mechanism of reasonable user (paragraph 191 above). In nuisance cases of this kind there is no absolute standard; it is always a question of fact and degree whether the interference amounts to an actionable nuisance: see Murdoch v Glacier Metal Co Ltd [1998] Env LR 732.
  277. The activities which give rise to the noise or smell complained of will only become wrongful by reference to the circumstances in which those activities were performed, including time, location, extent, and intensity. As noted in paragraph 20-10 of Clerk and Lindsell on Torts (20th edition, 2010), everyone must put up with a certain amount of discomfort and annoyance caused by the legitimate activities of his neighbours. In deciding whether an interference can amount to actionable nuisance, the court must strike a balance between the right of the defendant to use his property for his own lawful enjoyment and the right of the claimant to the undisturbed enjoyment of his property.[9]
  278. Perhaps the best known general description of this balancing exercise was that of Oliver J in Stone v Bolton [1949] 1 All ER 237 (which was approved in the Court of Appeal) in these terms:
  279. "Whether such an act does constitute a nuisance must be determined not merely by an abstract consideration of the act itself, but by reference to all the circumstances of the particular case, including, for example, the time of the commission of the act complained of; the place of its commission; the manner of committing it, that is, whether it is done wantonly or in the reasonable exercise of rights; and the effect of its commission, that is, whether those effects are transitory or permanent, occasional or continuous; so that the question of nuisance or no nuisance is one of fact."
  280. In the claimants' written closing submissions[10], they argued that, as a matter of law, nuisances which arose from an exceptional use of land as defined in Bamford v Turnley (namely, a use which was "not unnatural nor unusual but not the common and ordinary use of land") did not benefit from the principle of 'give and take'. It is certainly right that the distinction between common and uncommon use of land does arise from the judgment of Bramwell B in Bamford v Turnley; the difficulty is that this concept does not obviously address the much more important difference for these purposes, namely the difference between reasonable and unreasonable user of land.
  281. In my judgment, what is of prime importance is whether, in all the circumstances, the use of the land about which complaint is made is reasonable: see Lord Goff in Cambridge Water, cited in paragraph 191 above. If the user complained of is reasonable, then either the use is also natural or, even if that use cannot be described as a common and ordinary use of land, the nuisance claim must still fail because the user is reasonable. In considering what might be regarded as reasonable user, the 'give and take' principle will usually be of relevance, as Lord Goff explained. There is no suggestion in the more recent nuisance cases that the 'give and take' principle only applies where the nuisance arises out of the common and ordinary use of land. Further, at least for this purpose, it is important to differentiate between what I might call ordinary nuisance cases and those cases, like Cambridge Water and Transco, which involved the rule in Rylands v Fletcher and were therefore concerned with natural and non-natural user.
  282. I should also say that the proposition that the principle of 'give and take' does not apply if the use of land is reasonable, but in some way not common or out of the ordinary, cannot be found in Clerk and Lindsell. I would venture to suggest that, had there been any such principle, it would have meant that many modern authorities, such as Watson v Croft Promo-Sport Ltd [2008] 3 All ER 1171, the most recent case as to 'give and take' discussed in Section C3 below, might have been differently decided, for the reasons given below.
  283. Accordingly, for these reasons, I consider that the most important question is whether or not the use of the land in question can be described as reasonable in all the circumstances. Any consideration of reasonableness will ordinarily involve a consideration of 'give and take', regardless of whether the use in question was 'common and ordinary', or not.
  284. C3 Identifying A Threshold

  285. The best recent example of a case in which the necessity for 'give and take' was at the forefront of the nuisance claim was Watson v Croft Promo-Sport Ltd, referred to above[11]. In that case the complaint was about noise emanating from motor racing on a private racetrack. The circuit operated for about 200 days per year and on approximately 140 of those days there was a high level of noise. The claimants contended that the high level of noise should be confined to 20 days a year, and that 40 days would be acceptable if the defendants made financial compensation for the difference between 20 and 40 days. Simon J rejected the claimants' case that 20 days represented the threshold of nuisance, finding that that was too low. He said that, in striking a proper balance between the respective legitimate interests of the parties, the correct threshold was 40 noisy days each year.
  286. On appeal ([2009] EWCA 15; [2009] 3 All ER 249), the Court of Appeal rejected the defendants' submissions that, in adopting the threshold of 40 noisy days as the standard of reasonable use, the judge had failed to explain his reasoning. The Court of Appeal did, however, conclude that an injunction was appropriate to protect the claimants from the use of the racetrack for more than the 40 days identified by the judge.
  287. The importance of Watson (and the earlier decision of Kennaway, about the noise from racing boats, and where a similar numerical approach was adopted) is twofold. First, it provides another reason why, as noted in paragraphs 203-205 above, I believe the claimants are wrong when they suggest that an uncommon use of land (even if reasonable) does not bring with it the benefit of the 'give and take' principle. The use of land as a private race track might be thought of as "not the common and ordinary use of land", but that was irrelevant to the application by the courts of the 'give and take' principle and the wider issue of reasonable user. Either it was a natural use because it was reasonable, or the common/uncommon user distinction was irrelevant to the issue of reasonableness and 'give and take'.
  288. At paragraph 78 of their closing submissions, Biffa asked, in connection with the Watson case: "is powerboat or motorcar racing really to be treated as a reasonable natural use, but landfill (an activity since time immemorial) when conducted in accordance with a dedicated regime still somehow 'unnatural' and not 'proper for the general benefit of the community'?" Biffa suggest that the answer is plain. I agree. To the extent that it is relevant, therefore, it seems to me that, if it can be shown that Biffa's activities at Westmill 2 constituted a reasonable use of the land, that use was either natural or, if not, still a use to which the principle of 'give and take' must apply.
  289. Secondly, the case is important because it demonstrates that, in most common nuisance situations, the court should endeavour to work out a threshold against which to evaluate the nuisance complained of; that is to say, a starting point, which will represent a certain experience of inconvenience which, in the modern world, should be regarded as reasonable, but which, if it is exceeded, would give rise to actionable complaint. Having calculated that starting point, the court can then see whether, on the evidence, the nuisance complained of went beyond that threshold. If it did, the nuisance claim has been made out. That is also what happened in Kennaway.
  290. Between the delivery of the closing submissions in this case, and the date of judgment, HHJ Seymour QC, sitting as a judge of the High Court, gave judgment in Lawrence v Fen Tigers Limited & Others [2011] EWHC 360 (QB). That was a noise nuisance case arising out of a speedway stadium and motor cross track. The principal legal issue in that case appeared to arise from the defence that, if there was nuisance, the stadium had the benefit of a prescriptive right to cause a noise nuisance. It does not appear that the case was argued upon the threshold basis set out in Watson, and there is therefore no analysis in the judgment of that approach to nuisance. The lengthy judgment is mainly taken up with a recitation of the facts. In the present case, the claimants expressly made no submissions on Lawrence, and Biffa made plain that they do not consider that the decision is of any real relevance to the disputes before me. That is the conclusion that I have also reached.
  291. Finally on the topic of reasonable user/'give and take', there was some debate in the opening and closing submissions as to whether or not the matters complained of amounted to no more than a temporary interference, which was not actionable at all. Biffa argued that the law excluded liability for isolated events, and relied on paragraph 20-16 of Clerk and Lindsell and the judgment of Lawton J, as he then was, in British Celanese Limited v AH Hunt (Capacitors) Limited [1969] 1 WLR 959 at 969. That analysis of the law was challenged by the claimants, who maintained that the odour emissions were not a temporary interference but a continuing 'state of affairs' (Bolton v Stone).
  292. In my judgment the claimants are right about this. I do not consider that these events can be regarded as a temporary interference, although of course whether they constituted an actionable nuisance is another matter altogether. Furthermore, I do not accept Biffa's analysis of the law on this issue: indeed, I read the judgment in British Celanese as making it plain that, whilst many isolated happenings do not constitute a nuisance, there are circumstances in which they can. As the editors of Clerk and Lindsell make plain, a neighbour has a cause of action on the first occasion of damage. Accordingly, I do not regard it as helpful or relevant to regard the situation at Westmill 2 as temporary or producing 'isolated events'; in my judgment, it is and was a 'state of affairs' (Bolton v Stone) which could give rise to a claim in nuisance.
  293. C4 The Character of the Neighbourhood

  294. In considering the standard of comfort or convenience of living, the character of the neighbourhood must be taken into account. This is perhaps best encapsulated in the aphorism, beloved of generations of law students, that "what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey": see Thesiger LJ in Sturges v Bridgman (1879) 11 Ch D 852 at 865. That does not, of course, mean that somebody who lives in a noisy area cannot complain about noise. In Polsue and Alfieri v Rushmoor [1906] 1 Ch 234, the claim in nuisance was successful, even though the noise that was the subject matter of the complaint arose from printing presses being used in an area, very close to this court, that was habitually used by printers. The essence of the nuisance was that printing presses had not previously been used there at night, and it was their nightly usage which constituted the specific nuisance in that case.
  295. More recently, in Murdoch, referred to above, the complaint concerned factory noise. The claim was refused because the court concluded that the character of the neighbourhood was essentially an industrial one and that, contrary to the situation in Polsue, it was not possible to identify any additional factor to found the nuisance.[12]
  296. C5 Planning Permission

  297. It is settled law that the grant of planning permission does not of itself sanction or otherwise endorse an activity which is causing a nuisance to neighbouring properties. In Gillingham BC v Medway (Chatham) Dock Co Ltd [1992] 3 All ER 923 at 934, Buckley J said:
  298. "If a planning authority grants permission for a particular construction or use in its area it is almost certain that some local inhabitants will be prejudiced in the quiet enjoyment of their properties. Can they defeat the scheme simply by bringing an action in nuisance? If not, why not? It has been said, no doubt correctly, that planning permission is not a licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance."

    However, this finding was ultimately of no assistance to the claimants in that case, the judge going on to find that the grant of planning permission had altered the character of the neighbourhood (see paragraphs 218-220 below). He also said that the statutory framework envisaged that a local planning authority would, when considering whether or not to grant planning permission, balance the interests of the community against those of individuals.

  299. In Wheeler v AJ Saunders Ltd [1996] Ch 19, the dispute centred on a new piggery, for which planning permission had been granted, part of which was only 11 metres from the claimant's house. In that case, the Court of Appeal differentiated between planning permission and statutory authority. Staughton LJ said:
  300. "I do not consider that planning permission necessarily has the same effect as statutory authority. Parliament is sovereign and can abolish or limit the civil rights of individuals. As Sir John May put it in the course of argument, Parliament cannot be irrational just as the sovereign can do no wrong. The planning authority on the other hand has only the powers delegated to it by Parliament. It is not in my view self-evident that they include the power to abolish or limit civil rights in any or all circumstances. The process by which planning permission is obtained allows for objections by those who might be adversely affected, but they have no right of appeal if their objections are overruled. It is not for us to say whether the private bill procedure in Parliament is better or worse. It is enough that it is different."

    The court found that, on the particular facts of that case, the permission could not be said to have altered the character of the neighbourhood, and the claim in nuisance was upheld.

  301. The cases show, therefore, that the grant of planning permission can be relevant in nuisance cases, at least to the extent that it can change the character of a neighbourhood for the purposes of evaluating the nuisance. In Gillingham, Buckley J said that "where planning consent is given for a development or change of use, the question of nuisance will thereafter fall to be decided by reference to a neighbourhood with that development or use and not as it was previously". In Wheeler, the same point was also considered, but the change of use affected only a small piece of land and could not, therefore, affect a change in the character of the neighbourhood.
  302. Although some doubt has been expressed about this principle, in Hunter v Canary Wharf Ltd [1997] AC 655, the House of Lords reaffirmed that, whilst compliance with planning permission is not in itself a defence to a nuisance act, "it could change the character of the neighbourhood by which the standard of reasonable user fell to be judged" (see Lord Cooke at page 722.)
  303. In the Court of Appeal in Watson [2009] EWCA Civ 15, the Chancellor referred to a number of the authorities referred to above. He rejected the submission that what may properly be regarded as 'strategic planning decisions' affected in principle the private rights of the citizen to complain of a common law nuisance. However, he stressed, at paragraph 32 of his judgment, that the implementation of such planning permission "may so alter the nature and character of the locality as to shift the standard of reasonable user which governs the questions of nuisance or not". In support of that principle he referred to the judgments in Wheeler, and Hunter v Canary Wharf.
  304. C6 Statutory Authority

  305. As noted, the mere grant of planning permission does not give rise to the defence of statutory authority, or its equivalent. The distinction is important because statutory authority provides a complete defence to an action in nuisance. As noted in paragraph 20.06 of Clerk and Lindsell, "modern statutory control has had an effect in diminishing the role of private nuisance as a regulation of duties between neighbours." The statutory authority to commit a nuisance must, in order to afford a defence to the party committing it, be express or necessarily implied from the statute.
  306. In general terms, the cases have established that, where a statute has authorised the doing of a particular act, or the user of land in a particular way, which act or user will inevitably involve a nuisance, any resulting harm is not actionable, providing every reasonable precaution consistent with the exercise of the statutory powers has been taken to prevent the nuisance occurring: see (by way of example only) one of the typical Victorian railway cases, London, Brighton & South East Railway v Truman (1886) 11 App. Cas 45.
  307. The modern application of this principle in nuisance cases began with the House of Lords decision in Allen v Gulf Oil Refining Ltd [1981] AC 1001, referred to below. It is however, important to note that, if due diligence or reasonable care is not taken, there will be liability, even when the defendant acted under statutory authority: see Tate and Lyle v Greater London Council [1983] 2 AC 509. Accordingly, there is a significant difference between a claim for nuisance where the activities complained of are those permitted by statute, and a claim for nuisance where the thrust of the complaint is that the nuisance has been caused by the negligent acts or omissions on the part of the statutory undertaker.
  308. In Allen, the construction and operation of the oil refinery in question was permitted by the Gulf Oil Refining Act 1965. By a majority, the House of Lords rejected the claim in nuisance arising out of the operation of the refinery. Lord Wilberforce said that it was "well settled that where Parliament by express direction or by necessary implication has authorised the construction and use of an undertaking or works, that carries with it an authority to do what is authorised with immunity from any action based on nuisance". He went on:
  309. "To the extent that the environment has been changed from that of a peaceful unpolluted countryside to an industrial complex (as to which different standards apply – Sturges v Bridgman) Parliament must be taken to have authorised it. So far, I venture to think, the matter is not open to doubt. But in my opinion the statutory authority extends beyond merely authorising a change in the environment and an alteration of standard. It confers immunity against proceedings for any nuisance which can be shown (the burden of so showing being upon the appellants) to be the inevitable result of erecting a refinery upon the site – not, I repeat, the existing refinery, but any refinery – however carefully and with however great a regard for the interest of adjoining occupiers it is sited, constructed and operated. To the extent and only to the extent that the actual nuisance (if any) caused by the actual refinery and its operation exceeds that for which immunity is conferred, the plaintiff has a remedy."
  310. In his own speech, Lord Edmund-Davies referred to the claimant's reliance on the absence from the Act of any provision for the payment of compensation from any damage caused by the construction or operation of the refinery, and said that the absence of compensation clauses was an important indication that the Act was not intended to authorise interference with private rights: see Metropolitan Asylum District v Hill (1881) 6 App Cas. 193. But he went on to make plain that that indication was not conclusive and he considered that the correct view of the 1965 Act with which the House of Lords was concerned was that, in part expressly and in part impliedly, the construction and use of the refinery carried with it immunity from liability for nuisance inevitably (and without negligence) arising there from.
  311. It is unnecessary to set out all of the House of Lords cases dealing with statutory authority. The position can be summarised by reference to the judgment of Webster J in Department of Transport v North West Water Authority [1983] 3 WLR 105 at 109, which was subsequently approved by the House of Lords at [1984] AC 336 at 359:
  312. a) in the absence of negligence, a body is not liable for a nuisance which is attributable to the exercise by it of a duty imposed on it by statute;
    b) it is not liable in those circumstances even if by statute it is expressly made liable, or not exempted from liability, for nuisance;
    c) in the absence of negligence, a body is not liable for a nuisance which is attributable to the exercise by it of a power conferred by statute if, by statute, it is neither expressly made liable, nor expressly exempted from liability, for nuisance;
    d) a body is liable for a nuisance by it attributable to the exercise of a power conferred by statute even without negligence, if by statute it is expressly [either] made liable, [or not exempted from liability], for nuisance.
  313. The potential narrowing of the ambit of the common law, in the face of the steady flow of increasingly detailed legislation, particularly in environmental matters, was the subject of Lord Goff's speech in Cambridge Water, referred to at paragraph 190 above. It was also the subject of Lord Scott's speech in Transco. He referred to a number of the cases, including Allen and went on:
  314. "88 These principles regarding statutory authority and immunity from action are not directly applicable in the present case. There was no specific statutory authority for the council to build the block of flats. But it had a statutory function in regard to housing and the building of the block of flats was in discharge of that statutory function. There was no specific statutory authority for the council to lay the supply pipe where it did in order to provide a water supply to the block of flats. But it did have a statutory duty by some suitable means or other to provide a supply of water for domestic purposes to the flats and no one has suggested that the laying of the supply pipe was not a proper discharge of that duty. In these circumstances the remarks of Lord Wilberforce [in Allen], although not directly applicable, are in my opinion highly relevant to the question whether the laying and maintaining by the council of the supply pipe was, for Rylands v Fletcher purposes, a "natural" or "ordinary" use of its land so as to exempt it from liability resulting therefrom in the absence of negligence."
  315. Perhaps the best known and most recent decision of the House of Lords dealing with the interplay between statutory duty and nuisance is Marcic v Thames Water Utilities Ltd [2004] 2 AC 42. In that case, Mr Marcic's garden was repeatedly flooded, and his house adversely affected, by sewage discharged from sewers operated by Thames Water and running beneath his property. The defence of statutory authority was upheld at first instance by HHJ Havery QC, sitting in the TCC. That decision was overturned by the Court of Appeal, but the House of Lords allowed the appeal and reinstated the judge's original answers to the preliminary issues. They said that a sewerage undertaker was subject to an elaborate scheme of regulation, including an independent regulator with powers of enforcement, and that a balance had to be struck between the interests of a persons subject to sewer flooding, and the interests of those, including other customers of the sewerage undertaker, who would have to finance the cost of constructing more sewers. They concluded that such a balancing exercise was better undertaken by an industry regulator than a court, and that the common law should not impose on a sewerage undertaker obligations which would be inconsistent with the statutory scheme because that would run counter to the intention of Parliament. The House of Lords held, therefore, that a cause of action in nuisance would be inconsistent with the statutory scheme.
  316. In his speech, Lord Nicholls of Birkenhead dealt in some detail with the Victorian authorities in which the defence of statutory authority had provided a complete answer to a claim in nuisance arising out of drainage issues. He noted that the Court of Appeal had decided Marcic on the basis that Thames were operating a commercial venture in order to make profits for their shareholders and were therefore in no more favourable a position than a land owner on whose property a hazard accumulates and which he must therefore address (Leakey v National Trust [1980] QB 485). But Lord Nicholls eschewed that approach because, he said, Thames Water "is no ordinary occupier of land.… Thames Water's obligations regarding these sewers cannot sensibly be considered without regard to the elaborate statutory scheme of which section 179 is only one part. The common law of nuisance should not impose on Thames Water obligations inconsistent with the statutory scheme. To do so would run counter to the intention of Parliament as expressed in the Water Industry Act 1991". He therefore decided that the cause of action in nuisance was inconsistent with the statutory scheme and that it ignored the statutory limitations on the enforcement of sewerage undertaker's drainage obligations.
  317. Lord Nicholls went on:
  318. "35 … Since sewerage undertakers have no control over the volume of water entering their sewerage systems it would be surprising if Parliament intended that whenever sewer flooding occurs, every householder whose property has been affected can sue the appointed sewerage undertaker for an order that the company build more sewers or pays damages… Individual householders may bring proceedings in respect of inadequate drainage only when the undertaker has failed to comply with an enforcement order made by the Secretary of State or the director. The existence of a parallel common law right, whereby individual householders who suffer sewer flooding may themselves bring court proceedings when no enforcement order has been made, would set at nought the statutory scheme. It would effectively supplant the regulatory role the director was intended to discharge when questions of sewer flooding arise."
  319. The speech of Lord Hoffmann in Marcic also highlighted the difficulties of the court even attempting the necessary balancing exercise, in the light of Thames Water's statutory obligations. He said:
  320. "63 Nevertheless, whatever the difficulties, the court in such cases is performing its usual function of deciding what is reasonable as between the two parties to the action. But the exercise becomes very different when one is dealing with the capital expenditure of a statutory undertaking providing public utilities on a large scale. The matter is no longer confined to the parties to the action. If one customer is given a certain level of services, everyone in the same circumstances should receive the same level of services. So the effect of a decision about what it would be reasonable to expect a sewerage undertaker to do for the plaintiff is extrapolated across the country. This in turn raises questions of public interest. Capital expenditure on new sewers has to be financed; interest must be paid on borrowings and privatised undertakers must earn a reasonable return. This expenditure can be met only by charges paid by consumers. Is it in the public interest that they should have to pay more? And does expenditure on the particular improvements with which the plaintiff is concerned represent the best order of priorities?
    64 These are decisions which courts are not equipped to make in ordinary litigation. It is therefore not surprising that for more than a century the question of whether more or better sewers should be constructed has been entrusted by Parliament to administrators rather than judges."
  321. Lord Hope reached the same conclusion, noting that the most appropriate method of achieving a fair balance between the competing interests of the individual and the community was decided by Parliament to be by means of a statutory scheme administered by an independent expert regulator, whose decisions were subject to judicial review if there was a doubt as to whether the necessary balance had been struck in the right places.
  322. C7 Beneficial Activities

  323. It is important to distinguish between the defence of statutory authority and a point often raised by defendants in nuisance claims, to the effect that the activity complained of is in the public interest. It is trite law that it is no defence to a claim in nuisance to show that the business or other activity was either useful or highly desirable in the public interest: see Miller v Jackson [1977] QB 966. "A scheme which is of overall benefit to the public at large does not confer immunity on the authority which implements it from actions in nuisance": see Calvert-Smith J in Andrews v Reading BC No 2 [2005] EWHC 256 (QB).
  324. But, at paragraph 20-107 of Clerk and Lindsell, the learned editors comment that, since the question of whether or not a certain activity amounted to nuisance involved the balancing of competing interests, it was desirable or even essential that the nature of those interests should be fully taken into account. This approach could be said to have its origins in Lord Moulton's phrase "the general benefit of the community" in Rickards v Lothian [1913] AC 263. Thus, as explained more recently in Kennaway v Thompson [1981] 1 QB 88, the beneficial nature of the activity may not amount to a complete defence, but it may be a relevant element of any consideration of 'give and take'.
  325. It is, I think, necessary to treat the allegedly beneficial nature of the activity causing the nuisance with a good deal of care. Whilst, on the authorities, it may be a relevant consideration when looking at reasonable user and 'give and take', it emphatically cannot be accorded too much significance. I note that the House of Lords in both Transco and Cambridge Water cast doubt on the applicability of any public interest element in this aspect of the law of nuisance. And in Dennis, the noise from the Harriers at RAF Wittering was still found to be a nuisance, despite the finding that "the public interest clearly demands that RAF Wittering should continue to train pilots".[13]
  326. C8 Modern Odour Cases

  327. My attention was drawn, in slightly haphazard fashion, to seven modern odour cases, starting with Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683. In that case, the claimant, complained about noxious fumes emitted from the defendant's oil storage depot in Fulham/Hammersmith. Whilst an occasional smell of oil had been present for many years, that had grown in intensity and frequency and there was now 'a particularly pungent oily smell of a nauseating character'. There was not injury to health. Veale J found for the claimant concluding that, whilst the general background of occasional oily smells was not something about which complaint could be made, the frequency and intensity of the smells more recently went far beyond any trivial or background smell of oil, and was a serious nuisance to local residents. He said that, in relation to the dispute as to the intensity of the smell, those who worked at the depot were used to it whilst the claimant was not. He also said that the fact that neither the claimant nor his wife had made a specific complaint was irrelevant, because they had many matters on which they were entitled to complain and he accepted their evidence. It appears that, in reaching these views, the judge made one official visit to the property and one unsolicited visit, to which he refers in his judgment, late in the evening on the first Friday of the trial.
  328. Graham v Re Chem International Limited [1996] Env. L.R. 158 was a case concerning the emission of chemicals from an incinerator dealing with hazardous waste. Crucially, the issues that arise in this case did not arise there, because in that case the defendant conceded that the defence of reasonable user did not apply on the facts. Forbes J said:
  329. "It could hardly be suggested on behalf of Re-Chem that use of the Roughmute site for incineration of chemical waste was 'necessary for the common and ordinary use and occupation' of the land and was thus an activity which came within the principle of 'give and take as between neighbouring occupiers of land'".

    Thus, in Graham, the point as to reasonable user arising out of a statutory regime was not argued, which explains the judge's observation that incineration of chemical waste was not a common and ordinary use of land. The decision is therefore of no real assistance in the resolution of the issues before me.

  330. On the other hand, the decision of His Honour Judge Humphrey Lloyd QC in Blackburn v ARC Ltd [1998] Env. L.R. 469 ought perhaps to have been the most helpful authority cited to me, given that it was a nuisance claim concerned with odour from the tipping of domestic waste at a quarry site. However, both parties accepted that there were parts of the judgment which were internally inconsistent, a concern that can also be found in the commentary on the case in the Environmental Law Reports. The learned judge found that there was indeed nuisance, primarily on the basis of extensive records of complaint kept by the claimant, Mr Blackburn. Moreover, he followed the Gillingham and Wheeler line of authority and concluded that a waste disposal licence was to be treated in the same way as a planning permission.
  331. It is, however, on the central question of nuisance and negligence that the judgment is a little difficult to follow. On one reading, Judge Lloyd held that, because of the terms of the permit, ARC were not liable for the inevitable nuisance caused by the tipping of waste. He said:
  332. "If and to the extent that Mr Blackburn's claim arose out of activities which inevitably created a nuisance his claim would fail. But his claim is for nuisances which are not inevitable and since they were avoidable they are in any event not barred in law by the grant of permissions or licences… The defendant's essential submission is correct: where works lead inevitably to smell and gas being released and such smells of gas cannot be avoided, then a plaintiff must be able to establish that the smells and gas constitute a nuisance in that they do not amount to a reasonable user of the land. This is virtually equivalent to establishing negligence although no such claim is made in this case."
  333. In similar vein, a little later in the judgment, under the heading 'Smell', the judge said that "even if the defendant's plant were properly designed there would always be the risk of mal-operation or breakdown. I reject the defendant's case that any infractions were insignificant. In my judgment there is ample evidence to show that the defendant from time to time persistently flouted the terms of its licence."
  334. These passages suggest that the judge had concluded that the nuisance which was the inevitable product of the activities that were permitted by the licence was not actionable, but that nuisance which arose from negligence in carrying out those activities gave rise to a sustainable cause of action. This is confirmed by the passage dealing with noise nuisance, which the judge rejected. He said that much of the noise resulted from the inevitable use of the site as a permitted tip and "I have therefore to exclude such noise".
  335. On the other hand, the judge also said that "in my view it is quite clear that the use of land as a rubbish tip which will create smells and gas is not a reasonable user of land. If the smells and gas are more than that which must be tolerated in today's modern living conditions, the occupier of the land is liable in nuisance to adjacent owners…." He also went on to say:
  336. "I cannot see how the use of a worked out quarry as a rubbish tip could be regarded as a reasonable user so as to afford the defendant immunity for noise, smell and litter generated by that use."

    This suggested, in contrast to the previous passages in the judgment that I have noted, that the inevitable effects of permitted activities might be actionable in nuisance.

  337. For these reasons, it is difficult to work out from the judgment precisely what the judge had concluded was the answer to the key question that I have to answer, namely whether the existence of the permit meant that it was only nuisances beyond that, that is to say nuisances arising out of negligence, that were actionable. He clearly thought that there were nuisances caused by negligence, and made a number of references to the inadequate steps taken by ARC and the deficiencies in the design of their plant. I consider that the emphasis of the judgment is to the effect that the judge would not have found nuisance but for the clear findings of negligence, but I must acknowledge, as counsel agreed, that the judgment is not entirely clear on that critical point.
  338. In Milka v Chetwynd Animal By-Products (1995) Limited (Carmarthen County Court, 19100), HHJ Diehl QC provided a detailed judgment dealing with noise and odour claims arising out of an animal processing plant near Cardigan. At the end of a lengthy judgment, the learned judge upheld the odour nuisance claims. However there were a number of important differences between that case and this.
  339. First, there was a good deal of evidence concerning the unsatisfactory way in which the plant was run. There were enforcement notices, the contents of which were not disputed by the defendant. The enforcement notices, unlike in the present case, required particular works to be undertaken so as to reduce the odour. There was also a good deal of evidence, including expert evidence, dealing with whether or not the defendant had used the best available techniques. Although many pages of the judgment are devoted to setting out that expert evidence, which amounted to a litany of criticism of the defendant's operations on site, it was not clear from the judgment to what extent the judge accepted that best available techniques had not been used.
  340. This is important because my attention was drawn to the passage at page 79 of the judgment which said this:
  341. "The fact that upon review the plant is found to operate in accordance with BATNEEC or that the authorisation conditions are met or substantially so, with no enforcement action by the appropriate authority, provides no answer if the emissions persist to the extent that they constitute a nuisance at common law".

    Mr Bates relied on that to say that the judge was finding that nuisance could stem from the activities permitted by the permit, but I consider that it is difficult to divorce the hypothetical position which the judge noted above, from the evidence set out in the earlier paragraphs of the judgment which suggests that, on the facts, the allegations of deficient operation were well-founded.

  342. That leads me on to the second potential difficulty with the judgment in Milka. On reading it through, it is clear that no argument was run to the effect that the detailed permit, which contained 61 conditions, altered the character of the locality or was a matter to be taken into account when considering the issue of reasonable user. Furthermore, the distinction which is at the forefront of the present case (namely the difference between odours created by activities that were permitted, and odours caused by activities carried out negligently) was never identified or expressly addressed in Milka. In all those respects, therefore, the judgment in that case, although of some relevance, is of limited assistance on the critical issues that arise here.
  343. Another authority that was also less help to me than it might otherwise have been (although for very different reasons) was the decision of the Court of Appeal in Mid Suffolk District Council v Clarke [2006] EWCA Civ 71; [2007] 1 WLR 980. On this occasion, the problem stems not from any lack of clarity in the judgments in the Court of Appeal, but the somewhat unsatisfactory basis on which the appeal had been originally mounted. The real dispute was centred on the precise undertakings given by a defendant, who produced pigswill on his farm by a process which emitted significant odour. The judge at first instance modified the undertakings previously given by the defendant and the principal issue on the appeal, which was allowed, was whether there had been a significant change of circumstances permitting the modification of the undertaking.
  344. However, during the course of argument, the court raised with counsel for the defendant the significance of the authorisation which the defendant had been granted by the claimant local authority for a replacement cooking plant. The authorisation that was granted to the defendant by the claimant was under Part 1 of the Environmental Protection Act 1990, and the relevant regulations. It did not appear that this was a point that had arisen clearly at first instance and, in the end, it was not material to the decision of the Court of Appeal. However, at paragraph 43 of his judgment, Lloyd LJ said that it might be a relevant matter for the future:
  345. "If there were to be committal proceedings in future following further events said to cause a public nuisance, it would be open to Mr Clarke to seek to demonstrate that what had happened was covered and justified by the terms of the authorisation and on that basis, if he can, to invoke the statutory authority defence to show that there has been no public nuisance and therefore no breach of the undertaking. That seems to me to be the limit of the relevance of the authorisation in relation to the undertaking."
  346. In the proceedings before me, Mr Croxford argued that this passage was authority, binding on me, for the proposition that authorisation under the Environmental Protection Act provided a complete defence to a claim in nuisance. I reject that submission. Whilst it is clear that the passage in the judgment of Lloyd LJ is both important and relevant to my deliberations, it does not amount to a definitive ruling that such authorisation automatically provides a defence statutory authority to odour cases of this sort. That is because, in Mid-Suffolk, the question of authorisation was tangential to the central issue concerned with the modification of the undertaking, and because, as Lloyd LJ himself made plain in the passage which I have cited, he was not saying that authorisation was necessarily a complete defence. He was saying that it was a matter which Mr Clarke was entitled to raise "if he can" to invoke a defence of statutory authority.
  347. The most significant odour case of recent times is the decision of Ramsey J in Dobson and Others v Thames Water Utilities Ltd [2007] EWHC 2021 (TCC); [2008] 2 All ER 362. In that case, the claimants lived in the vicinity of a sewage treatment works operated by Thames Water and complained of odour and mosquitoes. The judge concluded that, on the authority of Marcic, the claimants were not permitted to bring claims which required the court to embark on a process which was inconsistent with, or conflicted with, the statutory process under the 1991 Water Industry Act. However, he said that they were not precluded from bringing a claim in nuisance involving allegations of negligence, or a claim in negligence.
  348. At paragraph 28 of his judgment, Ramsey J summarised Marcic as being a case where the common law remedy was not imposed because to do so would impose obligations which would be inconsistent with and conflict with the statutory scheme in question. At paragraph 87, he said that the House of Lords had distinguished the position of a statutory undertaker from that of an ordinary occupier of land on whom a duty rests based on Leakey. He concluded that the claimants were entitled to pursue nuisance claims only where they involved allegations of negligence. At paragraph 148 he said:
  349. "Whilst the principle in Marcic precludes the claimants from bringing claims which require the court to embark on a process which is inconsistent and conflicts with the statutory process under the 1991 Act, it does not preclude the claimants from bringing a claim in nuisance involving allegations of negligence where, as a matter of fact and degree, the exercise of adjudicating on that cause of action is not inconsistent and does not involve conflicts with the statutory process under the 1991 Act."
  350. Although Ramsey J's judgment in that case was partly reversed in the Court of Appeal ([2009] 2 All ER 319), no element of the reasoning set out above was the subject of that appeal.
  351. The most recent odour case to which my attention was drawn was the decision of Mr Nicholas Strauss QC, sitting as a Deputy High Court Judge in the Chancery Division, in Hirose Electrical UK Limited v Peak Ingredients Limited (21st October 2010, Unreported). In that case, one occupier of an industrial unit was complaining about the odour coming through from the adjoining unit. The claim in nuisance was rejected, principally because the judge found that the character of the neighbourhood was that of a light industrial estate and that, because the business generating the odours was in accordance with the character of the neighbourhood, it did not amount to a nuisance.
  352. The judge also found that the degree of interference with Hirose's business and with the comfort of its employees, having regard to the character of the estate, was insufficient to found a claim. He said:
  353. "115…It is not right to say that the ordinary use of industrial premises cannot constitute a nuisance, but I have found that Peak's use of its premises was reasonable, taking into account the interests of both parties. That being so, I do not think that the reasonable user by an occupier of industrial premises on an industrial estate becomes a nuisance because of inadequacies in the party wall dividing its premises from its neighbour for which it is not responsible."

    C9 Summary

  354. From these various authorities, I summarise the principles applicable to the present nuisance case as follows:
  355. a) Odour nuisance cases have long been – and remain – an integral part of the common law (from Bamford v Turnley through to Dobson).

    b) The relevant control mechanism, applicable in all nuisance cases, is whether or not there is reasonable user of the land in all the circumstances (Cambridge Water).

    c) Reasonable user has been equated to the principle of 'give and take' (Cambridge Water, Stone v Bolton). Although that principle was originally said not to arise in cases where the use was "not unnatural nor unusual but not the common and ordinary use of land" (Bamford v Turnley), the modern law of nuisance focuses on whether, in all the circumstances, the user is reasonable, and 'give and take' will usually be an element of that assessment, regardless of whether the use of the land could be said to be common or not (Watson being the most recent example).

    d) In addition, the more recent cases have assessed the reasonable user principle by reference to some kind of threshold or starting point, a finite experience of a situation beyond which a nuisance claim has been made out (Kennaway, Watson).

    e) In cases of emissions, environmental legislation may be relevant to, and even dictate, the court's approach to common law nuisance claims (Cambridge Water, Dennis, Transco).

    f) The granting of planning permission will not of itself sanction the nuisance (Wheeler). However it may be relevant to issues surrounding the character of the neighbourhood (Gillingham, Watson), and generally (Mid Suffolk).

    g) The fact that the nuisance is caused by activities which are beneficial will not provide a defence to a nuisance claim (Miller v Jackson). Such benefit may be a relevant factor to be taken into account in weighing up the competing interests of the parties when assessing reasonable user/'give and take' (Kennaway), but this is not entirely settled and cannot be taken too far (Transco).

    h) A number of recent nuisance cases, including odour cases, have been decided on the basis that the nuisance must be demonstrated to stem from negligence on the defendant's part (Marcic, Dobson). These decisions have arisen in the context of statutory authority, and have involved claims against what might be termed a statutory undertaker.

    i) Although, for the purposes of this case, the decision in Blackburn is most in point (the permitted activities of a commercial contractor on a landfill site), and would seem, at least in large part, to support the proposition that nuisance inevitably arising from permitted and regulated activities is not actionable without negligence, the judgment is not sufficiently clear on that point to be regarded as a definitive answer to the question.

  356. It follows that there is no authority, binding or otherwise, which addresses the critical issue of principle in this case: is the operator of a landfill site, who complies with the detailed requirements of his permit, and is not alleged to be negligent, liable in nuisance for the inevitable consequences of those permitted activities?
  357. D THE STATUTORY FRAMEWORK FOR WASTE DISPOSAL AND LANDFILL

    D1 The EU Directives and Other Materials

  358. The relevant European legislation needs to be set out first because it has had a direct impact on the UK Government in five particular ways: the creation of a waste policy; the creation of a landfill policy; the provision of a statutory regulator regulating both industries; the system of permits for waste and landfill sites; and a detailed regime for the making of and compliance with regulations concerning both waste and landfill.
  359. D1.1 The Waste Framework Directive

  360. The first relevant directive was the Waste Framework Directive of July 1975. The preamble to that Directive noted that the essential objective of all provisions relating to waste disposal "must be the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste." The preamble also reflected the proposition that, where costs were not covered by the proceeds of treating the waste, they should be defrayed in accordance with the "polluter pays" principle.
  361. Article 3 obliged Member States to take appropriate steps "to encourage the prevention, recycling and processing of waste, the extraction of raw materials and possibly of energy therefrom and any other process the re-use of waste". Article 4 required Member States to take the necessary measures to ensure that waste was disposed of without endangering human health and without harming the environment, and in particular "without causing a nuisance through noise or odours".
  362. Article 6 required Member States to establish and/or designate a competent authority with responsibility for implementing the Directive. That was, in the UK, the EA. Article 7 envisaged that waste would be handled either by the government or by private or public waste collectors. Articles 8-12 required Member States to establish a permitting system to regulate waste management activities, with certain exemptions. By virtue of Article 9, this system applied to landfill.
  363. D1.2 The IPPC Directive

  364. This Directive, dated 24 September 1996, set out provisions concerning integrated pollution prevention and control. The recitals made plain that the objective was "to prevent emissions into air, water or soil" wherever it was practicable, taking into account waste management and, where it was not, to minimise them in order to achieve a high level of protection for the environment as a whole. The recitals also envisaged a permit system granted by a competent authority so that they could satisfy themselves, before granting a permit "that all appropriate preventative or pollution-control measures have been laid down." A permit would only be granted "when integrated environmental protection measures for air, water and land have been laid down." The recitals also referred to emission limit values being based on "the best available techniques".
  365. Pollution was defined as "the direct or indirect introduction as a result of human activity, of substances, vibrations, heat or noise into the air, water or land which may be harmful to human health or the quality of the environment, result in damage to material property, or impair or interfere with amenities and other legitimate uses of the environment".
  366. Article 3(a) of the IPPC Directive required Member States to ensure that installations were operated in such a way that:
  367. "(a) all the appropriate preventative measures are taken against pollution, in particular through application of the best available techniques.
    (b) no significant pollution is caused …".
  368. 'Best available techniques' was defined in Article 2(12) as:
  369. "the most effective and advanced stage in the development of activities and their methods of operation which indicate the practical suitability of particular techniques for providing in principle the basis for emission limit values designed to prevent and, where that is not practicable, generally to reduce emissions and the impact on the environment as a whole:
    - 'techniques' shall include both the technology used and the way in which the installation is designed, built, maintained, operated and decommissioned,
    - 'available' techniques shall mean those developed on a scale which allows implementation in the relevant industrial sector, and the economically and technically viable conditions, taking into consideration the costs and advantages, whether or not the techniques are used or produced inside the Member State in question, as long as they are reasonably accessible to the operator,
    - 'best' shall mean most effective in achieving a high general level of protection of the environment as a whole".
  370. Article 6 was concerned with applications for permits. An application to the competent authority for a permit had to include a description of "the sources of emissions from the installation"
  371. Article 9.1 required Member States to "ensure that the permit includes all measures necessary for compliance with the requirements of Article 3 and 10…in order to achieve a high level of protection for the environment as a whole by means of protection of the air, water and land." In addition, under Article 9.3, the permit had to include emission limit values for pollutants likely to be emitted in significant quantities. In accordance with Article 9.4, those values must:
  372. "be based on the best available techniques, without prescribing the use of any technique or specific technology, but taking into account the technical characteristics of the installation concerned, its geographical location and the local environmental conditions. In all circumstances, the conditions of the permit shall contain provisions on the minimisation of long-distance or transboundary pollution and ensure a high level of protection for the environment as a whole."
  373. Article 10 concerns the interaction between environmental quality standards ("EQSs") and the concept of best available techniques. It is certainly right, as the claimants point out, that, if there is a difference or conflict between them, the EQSs prevail. But, although the claimants have purported to rely on this provision as being important, it seems to me to be ultimately irrelevant, at least to the present case, because EQSs are defined in Article 2.7 as being the precise standards fixed by Community legislation and there are no EQSs at issue in the present case.
  374. D1.3 The Landfill Directive

  375. The Landfill Directive was dated April 1999. The recitals made plain that, like any other type of waste treatment, "landfill should be adequately monitored and managed to prevent or reduce potential adverse effects on the environment and risks to human health", Recital 10 also referred to the proximity principle, namely the disposal of waste at the closest practicable location. Recital 12 provided:
  376. "Whereas it is necessary to indicate clearly the requirements with which landfill sites must comply as regards location, conditioning, management, control, closure and preventative and protective measures to be taken against any threat to the environment in the short as well as in the long-term perspective, and more especially against the pollution of groundwater by leachate infiltration into the soil…. "
  377. In the context of the site at Westmill 2, the recitals at 17 and 18 are important because they refer to measures to be taken to reduce the landfill of biodegradable waste and to aim at the encouraging of the separate collection of biodegradable waste, sorting in general, recovery and recycling. This is what is known as pre-treatment and it was in order to comply with this element of the directive that Westmill 2 became the first site in the UK to accept pre-treated (and therefore older), waste.
  378. Article 1 was concerned with the harmonisation of the various Directives to which reference has already been made. It explained the 'overall objective' of the Landfill Directive in these terms:
  379. "1. With a view to meeting the requirements of [the Waste Framework Directive] and in particular Articles 3 and 4 thereof, the aim of this Directive is, by way of stringent operational and technical requirements on the waste and landfills, to provide for measures, procedures and guidance to prevent or reduce as far as possible negative effects on the environment, in particular the pollution of surface water, ground water, soil and air, and on the global environment, including the green house effect, as well as any resulting risk to human heath, from landfilling of waste, during the whole life-cycle of the landfill.
    2. In respect of the technical characteristics of landfills, this Directive contains, for those landfills to which [the IPPC Directive] is applicable, the relevant technical requirements in order to elaborate in concrete terms the general requirements of that Directive. The relevant requirements of [the IPPC Directive] shall be deemed to be fulfilled if the requirements of this Directive are complied with".
  380. Article 5 dealt with the requirement to reduce the amount of biodegradable waste going into landfills. Article 6 made plain that "only waste that has been subject to treatment is landfill".
  381. Article 8 was concerned with the conditions of the permit. It provided that no permit was to be issued unless:
  382. a) The site complied with the Landfill Directive;
    b) The site would be managed by someone technically competent to manage the permit, with appropriate training for staff;
    c) The site would be operated "in such a manner that the necessary measures are taken to prevent accidents and limit their consequences";
    d) The permit was in line with any waste management plan adopted under Article 7 of the Waste Framework Directive; and
    e) The competent authority inspected the site to ensure compliance before operations commenced.
  383. Article 9 dealt with the content of the permit. Article 11 dealt with waste acceptance procedures and was in extremely detailed terms. For example, Article 11(b) specified a reception procedure to be respected by the operator, namely:
  384. "… visual inspection of the waste at the entrance and at the point of deposit and, as appropriate, verification of conformity with the description provided in the documentation submitted by the holder. If representative samples have to be taken in order to implement Annex II, point 3, level 3, the results of the analyses shall be kept and the sampling shall be made in conformity with Annex II, point 5. These samples shall be kept at least one month …"
  385. Article 12 related to control and monitoring procedures and provided as follows:
  386. "Member States shall take measures in order that control and monitoring procedures in the operational phase meet at least the following requirements:
    a) The operator of a landfill shall carry out during the operational phase a control and monitoring programme as specified in Annex III;
    b) The operator shall notify the competent authority of any significant adverse environmental effects revealed by the control and monitoring procedures and follow the decision of the competent authority on the nature and timing of the corrective measures to be taken. These measures shall be undertaken at the expense of the operator.
    At a frequency to be determined by the competent authority, and in any event at least once a year, the operator shall report, on the basis of aggregated data, all monitoring results to the competent authorities for the purpose of demonstrating compliance with permit conditions and increasing the knowledge on waste behaviour in the landfill;
    c) The quality control of the analytical operations of the control and monitoring procedures and/or of the analysis referred to in Article 11(1)(b) are carried out by competent laboratories."
  387. Annex 1 contained general requirements for all classes of landfill. Clause 1.1 provided that "the location of a landfill must take into consideration requirements relating to … the distances from the boundary of the site to residential and recreation areas, waterways, water bodies and other agricultural or urban sites." Clause 5 was entitled "Nuisances and hazards" and required that measures shall be taken "to minimise nuisances and hazards arising from the landfill" through, amongst other things, "emissions of odours and dust."
  388. D1.4 The Waste Acceptance Decision 2003/33/EC

  389. This decision set out the criteria and procedures for the acceptance of waste landfills. In the introduction to the Annex it was made clear that Member States were not prevented from maintaining or introducing more stringent protective measures than those established in the Annex, provided that such measures are compatible with the Treaty. Such measures shall be notified to the Commission. It also contained detailed waste acceptance criteria that had to be used by landfill operators before accepting waste for deposit at a landfill and prescribed in detail the checks (including on site visual and odour checks) that had to be undertaken.
  390. D1.5 The Environmental Liability Directive

  391. This Directive is only of tangential relevance to the issues in this case, being concerned with contaminated sites and the need to establish a common framework for the prevention and remedy of environmental damage. Environmental damage was defined in Article 2 and it is common ground that it does not include odour emissions of the sort that lie at the heart of this case. Recital 11 made plain that the Directive was aimed at preventing and remedying environmental damage and did not affect rights of compensation for traditional damage granted under any relevant international agreement regulating civil liability. Again, the articles presupposed the existence of a competent authority to carry out the detailed regulation.
  392. D1.6 The New Waste Framework Directive

  393. A new Waste Framework Directive was made on 5 April 2006. This incorporated the earlier Directive (Section D1.1 above) but added other duties and obligations. Article 5 was in these terms:
  394. "1. Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish and integrated and adequate network of disposal installations, taking account of the best available technology not involving excessive costs…
    2. The network referred to in paragraph 1 must enable waste to be disposed of in one of the nearest appropriate installations, by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health."
  395. Article 9 dealt with the permit and the matters that were relevant for the granting of a permit such as the technical requirements and the disposal site. Annex II A identified deposit into or on to land e.g. landfill as a permitted disposal operation.
  396. A new Directive on waste was dated 19 November 2008 but contained no matters which are of any direct relevance to this claim.
  397. D2 The UK Legislation

    D2.1 The Environmental Protection Act 1990 ("EPA")

  398. This Act was the UK's response to the Directives noted at section D1.1 above. Section 6(1) provided that:
  399. "No person shall carry on a prescribed process after the date prescribed or determined for that description of process by or under regulations under section 2(1) above (but subject to any transitional provision made by the regulations) except under an authorisation granted by the enforcing authority and in accordance with the conditions to which it is subject."

    Section 7(4) provided that a general condition was implied into every authorisation, to the effect that the person carrying on the process must use the best available techniques not entailing excessive costs.

  400. Section 33 prohibited unauthorised or harmful depositing, treatment or disposal of waste. Section 33(1) provided:
  401. "Subject to subsection (2), a person shall not –
    (a) deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless an environmental permit authorising the deposit is in force and the deposit is in accordance with the permit;…
    (c) treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health."
  402. Section 33(7) was in these terms:
  403. "It shall be a defence for a person charged with an offence under this section to prove:
    (a) That he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence …"
  404. Section 73 of the EPA provided as follows:
  405. "(6) Where any damage is caused by waste which has been deposited in or on land, any person who deposited it, or knowingly caused or knowingly permitted it to be deposited, in either case so as to commit an offence under section 33(1) or 63(2) above, is liable for the damage except where the damage –
    (a) was due wholly to the fault of the person who suffered it; or
    (b) was suffered by a person who voluntarily accepted the risk of the damage being caused;
    but without prejudice to any liability arising otherwise than under this subsection.
    (7) The matters which may be proved by way of defence under section 33(7) above may be proved also by way of defence to an action brought under subsection (6) above."
  406. Section 79 of the EPA was concerned with statutory nuisance. Statutory nuisances were said to include "any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance". S.79(1) obliged local authorities to inspect for such nuisances and investigate complaints.
  407. Section 80, dealing with summary proceedings for statutory nuisance, made plain at subsection (7) that in any proceedings for an offence in respect of statutory nuisance, it was a defence to prove "that the best practicable means were used to prevent, or to counteract the effects of, the nuisance." S.79(9) defined this expression in these terms:
  408. "'Practicable' means reasonably practicable having regard among other things to local conditions and circumstances, to the current state of technical knowledge and to the financial implications;
    b) the means to be employed include the design, installation, maintenance and manner and periods of operation of plant and machinery, and the design, construction and maintenance of buildings and structures;
    c) the test is only to apply so far as compatible with any duty imposed by law;
    d) the test is only to apply so far as compatible with safety and safe working conditions, and with the exigencies of any emergency or unforeseeable circumstances."
  409. Section 82 provided for summary proceedings to be instigated by persons aggrieved by statutory nuisance, and again the 'best practicable means' defence was available to the operator.
  410. D2.2 The Waste Management Licensing Regulations

  411. These regulations show the start of the licensing regime. They have now been superseded by the PPC Regulations. The regulations endeavoured to bring into effect the Waste Framework Directive of 1975 and in parts, such as schedule 4, introduced the Directive wholesale.
  412. D2.3 The Environment Act 1995

  413. Part I of this Act is relevant because it set up the Environment Agency. This was the competent authority envisaged in the European legislation and Directives, charged with controlling, through the detailed system of permits and the like, all waste and landfill operations.
  414. D2.4 The Pollution Prevention and Control (PPC) Regulations 2000

  415. These detailed regulations are directly relevant to the operations at Westmill 2. They are concerned with pollution, prevention and control. The definition of pollution included "causing offence to human senses" and "the impairment or interference with amenities and other legitimate uses of the environment". Regulation 9 provided that no one could operate an installation except under and to the extent authorised by a permit granted by the regulator, the EA. Regulation 11 set out the general principles that would be applied when determining the conditions of a permit. Regulation 11(2) identified that the general principles were that installations should be operated in such a way that:
  416. "(a) all the appropriate preventative measures are taken against pollution, in particular through application of the best available techniques; and
    (b) no significant pollution is caused."
  417. Regulation 12 was concerned with the specific requirements to be included in conditions of permit, and at regulation 12(9) required that conditions would be included aimed at minimising long distance and transboundary pollution, appropriate protection of the soil and groundwater, the setting out of suitable emission monitoring requirements, and requiring the operator to supply the regulator regularly with results of monitoring of emissions. Regulation 12(10) provided that it was implied in every permit that, in operating the installation, the operator "shall use the best available techniques for preventing or, where that is not practicable, reducing emissions from the installation …"
  418. Regulation 12(12) indicated that a permit authorising the operation of an installation may include an off-site condition requiring the operator to carry out works or do other things in relation to land not forming part of the site of the installation.
  419. Regulation 23 onwards was concerned with enforcement. Regulation 23 obliged the regulator (the EA) to ensure compliance with conditions. The EA would do that by issuing an enforcement notice under Regulation 24. Under Regulation 25, if the EA was of the view that there was an imminent risk of serious pollution, it could serve a suspension notice. A suspension notice could also be served if the EA was of the opinion that the operator had ceased to be a fit and proper person in relation to the carrying out of waste management activities under a permit. Moreover, under Regulation 26, the regulator had the power to prevent or remedy pollution if the operation of the installation, or the operation of it in a particular manner, involved an imminent risk of serious pollution.
  420. Regulation 32 onwards was concerned with offences. A variety of offences were created for non-compliance with the Regulations. One of the offences was a failure to comply with the requirements of an enforcement notice, a suspension notice, or a closure notice. In those circumstances, under Regulation 33, if the EA was of the opinion that proceedings for an offence under Regulation 32(1)(d) would afford an ineffectual remedy against a person who had failed to comply with the requirements of an enforcement notice or suspension notice, the EA "may take proceedings in the High Court for the purpose of securing compliance with the notice". In other words, the High Court had the right to issue an injunction to support the regulator in such circumstances. Moreover, Regulation 35 granted the court express power to order the cause of any offence to be remedied.
  421. The schedules to the Regulations make plain that Westmill 2 was a landfill installation to which these Regulations applied. Schedule 4 was concerned with the detailed provisions relating to the grant of a permit to such a site.
  422. Under Schedule 4 Part 1, applications for a permit had to include certain information relating to the proposed site. The list is based on that in the IPPC Directive. It included:
  423. a) A site report describing the condition of the site of the installation and identifying any substance in, on, or under the land which may constitute a pollution risk;
    b) A description of the installation and the activities to be carried out in the installation which "could have an effect on pollution";
    c) "The nature, quantities and sources of foreseeable emissions from the installation… in to each environmental medium, and a description of any foreseeable significant effects of the emissions on the environment";
    d) "The proposed technology and other techniques for preventing or, where that is not practicable, reducing emissions from the installation…";
    e) "The proposed measures to be taken to monitor the emissions".

    D2.5 Landfill Regulations 2002

  424. Part II of these Regulations sets out detailed provisions in relation to Landfill Permits and contained, at Regulation 8, general and specific requirements in relation to such permits. Again, both the granting of permits and the regulation of the operations on site were the responsibility of the EA.
  425. Schedule 2 set out general requirements for landfills. Paragraph 1 made plain that the location of a landfill must take into consideration requirements relating to "the distances from the boundary of the site to residential and recreational areas…" This precisely mirrors the Landfill Directive. (Section D1.3 above). Paragraph 5(1) stipulates that "measures must be taken to minimise the nuisances arising from the landfill in relation to", amongst other things, "emissions of odours and dust". That again mirrors Annex 1 to the Landfill Directive.
  426. D2.6 Environmental Permitting Regulations

  427. These lengthy Regulations came into force on the 6 April 2008. They consolidate and expand on much of what has already been identified above. It is unnecessary to set them out here.
  428. D2.7 The Planning Act 2008

  429. Amongst other things, this Act deals with what are called "nationally significant infrastructure projects". This includes "the construction or alteration of a hazardous waste facility" – which does not include Westmill 2 – and does not deal with the kind of non-hazardous waste facility of which Westmill 2 is a good example. However, section 158 of the Act expressly envisages the possibility of claims for nuisance arising out of the construction and operation of nationally significant projects and is in these terms:
  430. "158 Nuisance: Statutory Authority
    (1) This subsection confers statutory authority for –
    (a) carrying out development for which consent is granted by an order granting development consent;
    (b) doing anything else authorised by an order granting development consent.
    (2) Statutory authority under subsection (1) is conferred only for the purpose of providing a defence in civil or criminal proceedings for nuisance.
    (3) Subsections (1) and (2) are subject to any contrary provision made in any particular case by an order granting development consent."
  431. On behalf of the claimants, it was Mr Bates' submission that the Act recognised that, unless the contrary was made plain, the defence of statutory authority would not operate as a defence to nuisance. He argued that, since Westmill 2 was not caught by the Act anyway, that was a further indication that the defence of statutory authority was not available in these circumstances.
  432. D3 Summary

  433. In summary, therefore, this cascade of legislation provided as follows:
  434. a) But for the permit, the use of the land at Westmill 2 for waste disposal would have been a criminal activity (s.33 of the EPA 1990);
    b) Waste disposal and landfilling were permitted because of the terms of the permit and Biffa's compliance with the terms of the permit (s.33 of the EPA and PPC Reg 9);
    c) The policing of the terms of the permit was undertaken by the EA, a statutory body with wide powers which was set up to meet the UK's obligations under the relevant European Directives;
    d) Biffa could be liable for a wide range of breaches of the legislation, but any such claims would have to demonstrate that Biffa had failed to use best available/practicable techniques or had failed to exercise all due diligence (EPA, in particular section 33; IPPC Directive, in particular Article 3a); and PPC Regs 11(2) and 12);
    e) All of the legislation expressly accepted that a site such as Westmill 2 would create odour, at least from time to time. That was seen as the necessary price for dealing with the disposal of waste in a way that was sympathetic to the environment (IPPC Directive, in particular Article 3b); and PPC Regs 11(2) and 12). This explains the emphasis on preventing emissions or, where that was not practicable, minimising emissions, including odour.
  435. In addition, so it seems to me, the material which I have summarised above is, to borrow Lord Goff's phrase, "well-informed and carefully structured legislation"[14], put in place to deal with waste tipping and environmental pollution. Thus, again in his words, "there is less need for the court to develop a common law principle to achieve the same end [namely providing for liability in respect of environmental pollution] and indeed it may well be undesirable that they should do so." In my view, such is the weight and extent of the legislation in this area that it would be unsatisfactory, to say the least, if the common law did not generally march in step with the detailed legislation. But it is this view which goes to the heart of the issues of liability in this case.
  436. E ARTICLE 8 OF THE ECHR

  437. There is no claim in this case pursuant to the Human Rights Act. However, both sides referred to a number of authorities in which the provisions of Article 8 were considered in connection with the law of nuisance. Article 8 is concerned with a person's right to respect for his private and family life.
  438. In Marcic the House of Lords said that there was no HR claim because the European Convention did not accord absolute protection to property or residential premises. It required a reasonable balance to be struck between the interests of persons whose homes and property are affected by the nuisance, and the interests of the wider public, such as, in that case, customers and others affected by the activities of Thames Water.
  439. In another flooding case where the point arose (Arscott v The Coal Authority [2004] EWCA (Civ) 892; [2005] Env. LR 6), A's land had flooded as the (unforeseeable) result of defensive works designed to protect the defendant's own land from flooding. The judge at first instance had rejected the claim and found that the defendant was entitled to act as he had by reason of the 'common enemy' doctrine. The Court of Appeal dismissed the appeal, finding that the doctrine did not contravene Article 8, and struck a balance between the right of an occupier of land to do what he liked with his own property, and the rights of neighbours not to be interfered with, and between the interests of those affected and the interests of the general public.
  440. The only major case in which an odour claim has been favourably considered in the light of Article 8 is Dobson. In that case, Ramsey J held that, as a matter of principle, there could be a claim under Article 8 although, because in Dobson the nuisance claims required allegations of negligence, the claim by reference to Article 8 also required negligence, and could not be in conflict with the statutory regime dealing with the water industry. As to damages for breach of Article 8, the Court of Appeal ([2009] EWCA Civ 28; [2009] 3 All ER 319) held that it was most improbable, if not inconceivable, that damages at common law would be exceeded by any award for the infringement of Article 8.
  441. Finally, reference should be made to R (Downs) v Secretary of State for the Environment, Food and Rural Affairs [2009] EWCA Civ 664; [2010] Env LR 7. In that case, the claimant had succeeded at first instance in a claim for breach of Article 8 in connection with crop-spraying. However, the defendant's appeal was allowed. The Court of Appeal held that, in order to constitute a breach of Article 8, there had to be "severe environmental pollution" and that test had not been made out in that case. The European case which provides the test of 'severe environmental pollution' is Lopez Ostra v Spain (A/303-C) (1995) 20 EHRR 277.
  442. Accordingly, for what it is worth, I do not accept the claimants' submission that a limit on their ability to bring a nuisance claim in these circumstances would in some way amount to a breach of their Article 8 rights. That is because Article 8 can only be breached in a case of 'severe environmental pollution' which was not properly controlled by the State. That is not this case. Article 8 does not guarantee any right to freedom from transient odour or noise nuisance, particularly one with no impact on health.
  443. F DOES BIFFA HAVE A DEFENCE OF STATUTORY AUTHORITY?

    F1 Introduction

  444. It is Biffa's case that they have a complete defence of statutory authority to this nuisance claim. They refer to the detailed legislation set out in Section D above and they say that, on its true construction, those detailed provisions provide them with a complete immunity against claims at common law. In the alternative, they argue that they have a statutory immunity against claims for nuisance arising out of the inevitable consequences of running the Westmill 2 site. This alternative argument accepts that they could be liable for actions in negligence, characterised under the European Directives as the failure to use best available techniques, but not otherwise. Biffa point to the fact that the legislation expressly envisages that there will or may be some nuisance inevitably arising from landfill operations and that it would make a nonsense of legislation, and the detailed permit arrangements, if, after all, they could be liable for doing exactly what they were permitted to do under the legislation.
  445. The claimants' position could not be more different. The claimants say that, for a variety of reasons, Biffa are not in the same position as a statutory undertaker, like Thames Water, and that the defence of statutory authority is simply not open to them. The claimants maintain that Biffa have none of the wider statutory duties which lay at the heart of the decisions in Marcic and Dobson. Indeed the claimants go further: they argue that none of the EU or UK legislation, and no part of the regulatory and permit regime, has any effect whatsoever on their claims for nuisance at common law.
  446. For the reasons explored in greater detail in Section G below, I cannot accept the claimants' underlying proposition that the Directives, the other legislation, the regulatory regime, and the terms of Biffa's permit are all matters which are irrelevant to their common law claims for nuisance. That seems to me to be an unrealistic submission, and ignores the principles which I have summarised at Section C9 and Section D3 above. However, in relation to the specific defence of statutory authority, for the reasons set out below, I consider that the claimants are on considerably firmer ground in submitting that, at least for this purpose, their claims against Biffa in these proceedings are not on all fours with the claims in Marcic and Dobson, such that the defence of statutory authority is not available to Biffa.
  447. F2 Statutory Duties

  448. In the Court of Appeal in Marcic, Lord Phillips concluded that Thames Water should not be treated differently to other owners or occupiers of land, and that they were simply providing services in order to generate revenue for their shareholders. On that approach, of course, Biffa are in precisely the same position. But when they overturned the ruling of the Court of Appeal in Marcic, the House of Lords took a contrary view of the position of Thames Water, emphasising that they were not, in truth, ordinary occupiers of the land because of the wide statutory duties which Thames Water, as a sewerage authority, were obliged to undertake under the Water Industry Act 1991.
  449. As summarised in the passages at paragraphs 228-232 above, the existence of those duties explained why the House of Lords came to a different view to the Court of Appeal. There were essentially two strands to their reasoning. The first was to identify the nature and scope of the particular obligations imposed on Thames Water. Thames Water did not have the ability to refuse to accept sewage from a new development; and they did not have the power to refuse to provide water and sewerage facilities to their customers. To that extent, therefore, Thames Water could not operate simply as a commercial organisation; there were certain things that they were statutorily obliged to do which might, of themselves, be things which they would not have done if they had had a complete commercial free hand.
  450. Secondly, when balancing their commercial imperatives with their obligations to the wider public, Thames Water and/or their regulators were taking decisions which involved a complex balancing exercise between expenditure and investment, profit and loss, of a type which, so the House of Lords said, the courts were not qualified to undertake. Essentially, they concluded that these fine matters of operational detail were not justiciable. Only the operator and the regulator could balance, on the one hand, the need for investment in a particular area with, on the other hand, the level of services to be provided to customers as a whole. In these two related factors lies the kernel of the decision in Marcic, which was subsequently followed by Ramsey J in Dobson.
  451. Neither of those considerations applies to Biffa. Biffa have no statutory obligations themselves. They were not providing services to the wider public whether they wanted to provide such services or not; they were and are operating Westmill 2 on an entirely voluntary basis. Provided they comply with the terms of their permit, they are free to follow completely the dictates of their commercial interests. They have no wider obligations to the public.
  452. More fundamentally, they have no actual duties under the various statutes at all. All of the obligations arising under the Directives etc set out in Section D1 above are on Member States (i.e. the UK Government). No particular section of any of the EC Directives, and no particular parts of the subsequent UK legislation (Section D2 above), provide directly for particular tasks or obligations to be performed by Biffa. They are therefore, in a completely different position to, say, Thames Water operating under the Water Industry Act 1991, or Gulf Oil operating under the Gulf Oil Act 1965 which was the subject of scrutiny in Allen. In those circumstances, I do not consider that Biffa are able to avail themselves of the defence of statutory authority.
  453. It is certainly right, as Mr Croxford pointed out, that a number of the principal authorities in this area, such as Marcic and Transco, refer to the advance of statutory legislation and the concomitant retreat of the common law. As I explore in the next section of this Judgment, I accept that the detailed statutory regime applying to waste and landfill is relevant to any consideration of the claimants' claims in common law and, in particular, the issue of reasonable user. But in the absence of any express or implied statutory duties on the part of Biffa, the existence of the statutory regime does not equate or give rise to a complete defence of statutory authority. With one exception, no particular part of the statutory cascade falls to be construed in this case and no particular part of that legislation imposes any particular obligations on Biffa.
  454. The exception was the provisions of the Environmental Protection Act (Section D2.1 above). As I have already noted, Mr Croxford argued, by reference to Mid-Suffolk v Clarke, that this case was binding authority for the proposition that authorisation of the activity under the EPA provided a defence to a claim in common law. For the reasons set out in paragraphs 248-250 above, I disagree with that analysis. In my view, Lloyd LJ was merely pointing out that the authorisation may potentially be a relevant matter, if and when Mr Clarke was the subject of committal proceedings. For the reasons explored in Section G below, I respectfully agree with that view: such authorisation is a relevant matter when considering the nature and extent of Biffa's common law liabilities. But Clarke is not authority for the proposition that an individual or a company with the necessary authorisation under the EPA has a defence of statutory authority to any claim for nuisance arising out of the authorised activities.
  455. For these reasons, I consider that Biffa do not have authority expressly granted by statute or by necessary implication, either by reference to the statutory duties imposed in the legislation noted above, or by reference to the statutory powers conferred to enable those duties to be complied with. That is the test formulated by Lord Scott in Transco. For the reasons that I have indicated, it is not a test that Biffa can meet.
  456. F3 Supervisory Permission

  457. What then is the nature of the function which Biffa are performing? They are providing a public service pursuant to permission needed and issued under a supervisory regulatory regime. That regime covers their voluntary operation of the Westmill 2 facility.
  458. The concept of supervisory permission is derived from the House of Lords decision in YL v Birmingham City Council [2007] UKHL 27; [2008] 1 AC 95. In that case, the claimant brought a claim pursuant to the Human Rights Act as a result of the decision of the company who ran a care home to terminate the contract for her care and remove her from the home. The principal issue was whether the company was performing a "function of a public nature" pursuant to sections 21 and 26 of the National Assistance Act 1948 and was thus a "public authority" in accordance with section 6 of the Human Rights Act 1998. In considering that issue Lord Bingham said:
  459. "8 It will be relevant to consider the nature and extent of any statutory power or duty in relation to the function in question. This will throw light on the nature and extent of the state's concern and of the responsibility (if any) undertaken. Conversely, the absence of any statutory intervention will tend to indicate parliamentary recognition that the function in question is private and so an inappropriate subject for public regulation.
    9 Also relevant will the extent to which the state, directly or indirectly, regulates, supervises and inspects the performance of the function in question, and imposes criminal penalties on those who fall below publicly promulgated standards in performing it. This is an indicator of the state's concern that the function should be performed to an acceptable standard. It also indicates the state's recognition of the importance of the function, and of the harm which may be done if the function is improperly performed.
    10 It will be relevant to consider whether the function in question is one for which, whether directly or indirectly, and whether as a matter of course or as a last resort, the state is by one means or another willing to pay. The greater the state's involvement in making payment for the function in question, the greater (other things being equal) is its assumption of responsibility".
  460. At paragraph 26, Lord Scott said:
  461. "Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti-discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgement it thinks suitable. It is operating in a commercial market with commercial competitors."
  462. In his speech at paragraph 134, Lord Neuberger said this:
  463. "Reliance was placed on the fact that care homes are subject to detailed rules and supervision under the provisions of the Care Homes Regulations 2001. That is not in my opinion, a telling reason for saying that, in providing care and accommodation to a private person, the proprietor of a care home is carrying out a function of a public nature. There is no identity between the public interest in a particular service being provided properly and the service itself being a public service. As a matter of ordinary language and concepts, the mere fact that the public interest requires a service to be closely regulated and supervised pursuant to statutory rules cannot mean that the provision of the service, as opposed to regulation and supervision, is a function of a public nature. Otherwise, for example, companies providing financial services, running restaurants, or manufacturing hazardous material would ipso facto be susceptible to being within the ambit of section 6(1). "
  464. I accept of course that the issue in YL was slightly different to the issue in the present case. But it seems to me that Lord Neuberger's distinction is a helpful one in the present case, because it underlines the difference between a body performing tasks imposed on them by statute, and a body carrying out activities for entirely commercial purposes, even if those activities are the subject of detailed statutory regulations. It seems to me that, in the present case, Biffa are in this latter category. Therefore, just as the care home provider in YL was not performing a public function because it was not performing statutory duties, neither in this case was Biffa.[15]
  465. Put another way, by reference to Lord Scott's analysis, Biffa are in no different position to Southern Cross in YL. Biffa are carrying on a socially useful business for profit. They are neither a charity nor a philanthropist. They enter into private law contracts with local authorities and companies, such as London Waste, who provide waste for them to tip. Biffa receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject the waste on site. Biffa are also at liberty to charge whatever fees in their commercial judgement they think suitable. Biffa are operating in a commercial market with commercial competitors. They are not a statutory undertaker and have no statutory authority. Notwithstanding Biffa's attempt to distinguish YL at paragraphs 71 and 72 of their closing submissions, I consider that, whatever the differences between the statutory regime under review in that case, and the cascade of legislation here, the underlying position is that, for the reasons that I have given, Biffa's rights and responsibilities were more like those of Southern Cross than those of Thames Water in Marcic.
  466. The foregoing paragraphs are, I think, sufficient to dispose of the statutory authority defence. However, for completeness, I refer to two other reasons why, on Mr Bates' submissions, the defence of statutory authority could not run. They are the fact that nuisance claims were not expressly or impliedly excluded from the legislation, and the fact that there was no comprehensive statutory scheme for compensation in cases of nuisance.
  467. F4 Right Not Excluded

  468. Mr Bates submitted on behalf of the claimants that an ability to bring a claim in nuisance was a basic tenet of the common law and, because that ability in this case had not been expressly or impliedly excluded by any statute, the right remains open to the residents of the Vicarage Estate. In this regard, I note that nuisance claims can be found in reports of cases going back to the reign of Henry IV[16], and Clerk and Lindsell contains references to nuisance cases dating back to 1610.
  469. Mr Bates also submits that such a basic entitlement requires clear words if it is to be excluded, and maintains, by reference to the decision of the House of Lords in R v Leach [1912] AC 305, (albeit that this was dealing with a completely different area of the law), "if you want to alter the law which has lasted for centuries and which is almost engrained in the English Constitution … to suggest that that is to be dealt with by inference, and that you should introduce a new system of law without any specific enactment of it, seems to me to be perfectly monstrous" (Lord Halsbury).
  470. Rather more recently, but in similar vein, in Morgan Grenfell and Co Ltd v Special Commission of Income Tax [2001] EWCA Civ 329; [2003] 1AC 563, Lord Hobhouse made similarly trenchant observations about the suggestion that a right to claim legal professional privilege was somehow to be treated as abrogated by an implication through statute. He said that necessary implication was one which "necessarily follows from the express provisions of the statute construed in their context". He said that, in that case, the statutory language fell a long way short of meeting that criterion. Similarly, therefore, Mr Bates argued that the cascade of legislation referred to in Section D above does not come close to saying that, by implication, the right to bring a claim at common law has been abrogated.
  471. I consider that these parts of Mr Bates' submissions rather overstated the case: I am, for instance, doubtful whether the ability to bring an odour nuisance case can be described as a basic tenet of the English common law. But there is force in the simple point that, for statutory authority to provide a defence to this claim, the claimants' ability to bring a claim in nuisance in circumstances such as these needs to be excluded (expressly or impliedly) by operation of statute. Just as in Morgan Grenfell, it is agreed that no part of the legislation referred to above expressly excluded the right to make a claim for nuisance in common law. Is such an abrogation the necessary implication of the provisions that I have set out in Section D above? It does not seem to me that it is.
  472. On the contrary, as set out in paragraph 285 above, s.73(6) of the EPA 1990 makes plain that Biffa are liable to the residents for breach of any condition of the permit "but without prejudice to any liability arising otherwise than under this subsection." On the face of it, such liability could only "otherwise arise" in nuisance. There is therefore force in Mr Bates' argument that this part of the statute preserves, albeit by a slightly roundabout route, the ability to make a nuisance claim at common law.
  473. That does not of course mean that the legislation set out above will be irrelevant to the nature and type of common law claim that those in the position of the claimants might be able to advance against Biffa. Indeed, I believe that the legislation is highly relevant to that issue, for the reasons noted in the next Section of this Judgment. But that is an altogether different matter to the ability of the claimants, and those like them, to bring a claim at all.
  474. In that regard, therefore, I consider that Mr Bates is also right to point to the Planning Act 2008 to demonstrate that the right to bring claims for common law nuisance arising out of non-hazardous waste sites such as Westmill 2 has not been abrogated. As noted at paragraphs 301-302 above, the relevant sections of the Planning Act provide a defence of statutory authority for nuisance claims made in connection with hazardous waste sites. It is, I think, a justifiable inference that, as a result, mere permission for projects which do not fall into the categories identified in the Planning Act, such as this one, does not give rise to a defence of statutory authority.
  475. For these reasons, I have concluded that the right to make a claim in nuisance has not been expressly excluded by the statutory cascade set out in Section D above.
  476. F5 Compensation

  477. Mr Bates' final point is that a defence of statutory authority is not available to Biffa because there is no statute which provides a comprehensive system of compensation to those, like the claimants, who may potentially suffer a nuisance. Biffa contend that s.73 of the EPA provides a remedy to those who can demonstrate a breach of a permit condition. They therefore say that there is a remedy in damages. The claimants counter that by arguing that, since their claims in this case do not turn on, or require the necessity of proving, a breach of a permit condition, they would not have a remedy under the Act.
  478. In truth, this argument actually begs the central remaining question, dealt with in Section G below. It is plain that s.73 allows an individual claimant to bring an action for damages if there has been a breach of the permit condition. In those proceedings, the defendant would be able to rely on the best available techniques/due diligence defence. The question, therefore, is not whether the statutory regime provides a comprehensive remedy for claims in nuisance, but whether claims in nuisance, in order to be actionable, require concomitant allegations of negligence in order to circumvent a defence based on the use of best available techniques/due diligence. I deal with that issue in Section G below.
  479. In the light of the foregoing paragraphs, and my other findings in relation to statutory authority, it is probably unnecessary for me to dwell further on the argument as to compensation. However I ought to say that, on its own, it was a much less powerful argument in support of the claimants' case that there was no statutory authority, particularly given that their central contention, that a claim in nuisance could only be excluded when alternative compensation was provided in the statute, seems to me to have been expressly rejected in Allen v Gulf Oil.
  480. F6 Conclusions

  481. For the reasons set out above, I have concluded that, contrary to their primary case, Biffa cannot rely on the defence of statutory authority to defeat these claims in nuisance. They have not demonstrated that they come within the principles set out in the cases in Section C6 above. As a commercial organisation with no wider statutory powers, they cannot avail themselves of the particular defence which was successful in Marcic and Dobson. They are, therefore, potentially liable for claims in nuisance.
  482. The remaining question of principle is whether the detailed statutory provisions, which I have set out in Section D above, are irrelevant to any consideration of such claims in nuisance. For the reasons set out in Section G below, I have concluded that they are not irrelevant; on the contrary, I consider that the cascade of legislation is directly relevant to any consideration of the nature and scope of claims in nuisance.
  483. G REASONABLE USER

    G1 Was The Use Of Westmill 2 As A Landfill Site A Reasonable User Of Land?

    a) The Central Issue

  484. As I have indicated, the central remaining issue in this case is whether a claim in nuisance, without negligence, can lie against the operator of a landfill site, in circumstances where the activities said to give rise to the nuisance have been carried out in accordance with a detailed environmental permit. Or, to put the question another way: does the legislation set out in Section D above, and the detailed terms of the permit set out in Section B2 above, mean that the use of land in accordance with the terms of that detailed permit was a reasonable user of that land? For the reasons set out below, I consider that, in the present case at least, the answer to the first question is No, and that the answer to the second question is Yes. I consider that the claimants' contention, that the legislation and the detailed terms of the permit are irrelevant to their claim in nuisance, such that the use of Westmill 2 as a landfill site was automatically an unreasonable user of the land, is wholly unrealistic, contrary to many of the authorities cited in Section C above and the modern trend in nuisance cases, and would give rise to an uncertain and unworkable position in law.
  485. b) First Principles

  486. There is no binding authority that provides a definitive answer to the question that I have to decide (see paragraphs 256-257 above). Accordingly, it is necessary to start with first principles, to identify what the logical answer might be, and then to investigate whether that logical answer is supported by the statutory regime, the terms of the permit itself, and the reported cases.
  487. In my view, the appropriate starting point is the potential criminal liability that may exist on the part of a waste contractor in these circumstances. The legislation, to which I have referred in Section D above, makes plain that the use of land for the tipping of waste is a criminal activity unless the operator of the site is acting in accordance with a valid permit (s.33 of the EPA 1990). If the operator is carrying out his activities in accordance with a valid permit, then that permit provides a complete defence to any criminal charges. That, so it seems to me, is a logical and coherent position.
  488. A similar position exists in respect of statutory nuisance (paragraphs 287-288 above). The emission of smell from the site could be pursued by the local authority as a statutory nuisance pursuant to section 79 of the EPA. But, as part of any defence to such a claim, Biffa would be entitled, pursuant to s.80(7), to argue that they had used "the best practicable means" to counteract the effects of the nuisance. In other words, if they had used the best practicable means they could not have been negligent and would not be liable for a claim in statutory nuisance.
  489. Why should the situation at common law be any different from the position in criminal law and the position in respect of statutory nuisance? I can see no reason in principle why an operator's common law liability to his neighbours should not be subject to precisely the same limits. In this way, the carrying out of tipping activities outside the conditions of the permit (ie negligently and/or by failing to use best available techniques) would give rise to a common law liability, but the carrying out of activities in accordance with that permit would constitute compliance with all relevant legal obligations, and would therefore afford a complete defence to a claim in nuisance.
  490. I consider that analysis to be common sense. An activity should not be permitted by one set of specific rules (derived from detailed legislation), yet at the same time give rise to a liability to a third party by reference to the much more general set of principles to be derived from the common law. The real question is whether this answer is in accordance with the legislation, the particular terms of the permit in this case, and the earlier cases. For the reasons noted below, I consider that, on analysis, it is the answer expressly suggested by all three.
  491. c) The Legislation

  492. A regime whereby Biffa are liable for nuisance at common law if that nuisance was created by their negligence, but not liable for the inevitable consequence of its permitted activities, is in accordance with the legislation. S.73(6) of the EPA permits anyone in the shoes of the 30 lead claimants in this case to bring proceedings against Biffa, if Biffa failed to comply with a condition or term of the permit. That is sensible: it means that, if an individual suffers damage as a result of a breach of condition, that individual can claim compensation, and is not bound to wait for the EA to take its own action. Indeed, that was how Ramsey J categorised the nuisance claim in Dobson when he noted at paragraph 81 that Mrs Dobson was in essence contending that "Thames Water ought to make further provision for effectually dealing with the contents of sewers".
  493. Let us assume that there were a series of odour events which a resident felt were at such a high level or prolonged duration that the amenity of the locality was affected detrimentally and therefore constituted a nuisance, but that, although the EA agreed with that analysis, they had decided, for other reasons, not to prosecute the landfill operator. In any subsequent proceedings brought by the resident, the EPA makes clear that he or she would have to demonstrate that the nuisance had occurred as a result of the operator's negligence. S.73 makes plain that, as a defence to any such nuisance claim, the defendant is able to rely on the principles of 'best available technique' and 'due diligence'. In other words, the mere fact that there was an odour emission on a particular day would not, of itself, mean that there was an actionable claim. There would only be an actionable claim if negligence (a failure to use best available techniques, or due diligence) could be established. Thus my conclusion, that the detailed terms of the permit mean that activities carried out in accordance with those terms and without negligence must equate to a reasonable user of land, is consistent with the relevant legislation.
  494. Now let us assume that, in the example that I have postulated, the court concluded that Biffa had used best available techniques, so that the resident's claim under s.73 for breach of the permit failed. In such circumstances, it would be absurd if precisely the same series of odour events could give rise to a successful claim in nuisance, merely because, on this hypothesis, it was unnecessary for the resident to show negligence. It would render s.73 of no practical utility whatsoever, because it would provide a statutory remedy that was, in reality, much more difficult to obtain than an existing remedy at common law. It would never be used. That cannot have been the intention of Parliament.
  495. d) The Particular Terms of the Permit

  496. The relevant terms of the permit are set out in paragraphs 20-25 above. The first point to make concerns the Introductory Note (paragraph 21 above), which expressly recognised that there will be occasions when, notwithstanding the use of best available techniques, odour emissions will occur. In that event, the obligation on Biffa was limited to reducing, rather than preventing, odour emissions. That is only consistent with a regime whereby emissions which are the inevitable result of the permitted activities (and which, but for the permit, might give rise to a claim in nuisance) are not actionable.
  497. In addition, Condition 2.6.12 (paragraph 23 above) provided that no odours were to be emitted "at levels as are likely to cause pollution of the environment…or serious detriment to the amenity" of the Vicarage Estate. Thus, the possibility of odour emissions at lower levels, which might in other circumstances constitute a common law nuisance, was not prohibited – indeed it was expressly accepted by - the terms of the permit. Again it seems to me that, in order to make that condition workable, particularly in the light of the Introductory Note, there has to be a sensible dividing-line between those emissions which are actionable and those which are not. One way of achieving that is by differentiating between odours inevitably caused by the activities themselves, and the odours caused by the negligent performance of those operations.
  498. Indeed, that difference is now expressly recognised by the amended condition, which came into force in April 2009 (paragraph 171 above). On the face of it, that makes clear that a breach of the permit is only demonstrated by negligence/failure to use best available techniques, and that nothing less will do. That is again consistent with what I consider the common law position to be.
  499. It goes further, because I accept Biffa's submissions that, if the law of nuisance does not march in step with the legislation, as reflected here by the terms of the permit, then Biffa might find themselves liable in nuisance as a result of their positive compliance with the terms of the permit. Examples would include a situation where Biffa had to carry out engineering works on site, say to repair defects in the gas management system or to increase the gas capture efficiency of the system. Such work may well be required under the detailed terms of the permit; it may constitute 'best available techniques'; but it may also lead to an increase in waste-based odour during the period that the work was carried out. On one view, that is what happened on 8 August 2008 (see paragraphs 160-163 above). It would be wholly illogical to render Biffa liable to the claimants in common law for the adverse consequences of doing something which they were positively obliged to do under the detailed terms of their permit.
  500. It would not be unfair to say that the claimants really had no answer to this and a number of other related submissions. The paucity of argument the other way can be demonstrated by paragraph 66 of the claimants' closing submissions, which suggests that the landfill site "probably shouldn't have been put where it is", and paragraph 138, which states more boldly that "a regulatory authority can get it wrong [in permitting a landfill] and did here". These submissions, which in the context of this litigation essentially seek to blame Biffa for being granted the permit in the first place, demonstrate the illogicality and incoherence of the claimants' position. It cannot be for the court considering a nuisance claim arising out of the operation of a landfill site to put the original decision to grant the permit for such a site under the judicial microscope. That would have been a matter for judicial review, and the time for any such judicial review proceedings has long since passed. The claimants are stuck with both the fact and the terms of the permit and, in my judgment, have no answer to its legal consequences.
  501. d) The Modern Authorities

  502. I also consider that my proposed answer to this issue, that nuisance can only be proved if there is negligence, is entirely in accordance with the comments made by Lord Goff in Cambridge Water about the need for common law to operate in tandem with, and sometimes to take a backseat to, any relevant legislation (see paragraph 192 above). That is particularly true of detailed environmental legislation. A certain and logical result can be arrived at if the law of nuisance operates in tandem with the statutory provisions. That is also consistent with Lord Scott's approach in Transco, set out at paragraph 227 above.
  503. In addition, the more modern authorities on nuisance, noted above, have emphasised, in a variety of ways and in a variety of different situations, that nuisance on its own is often not enough, and that nuisance must be accompanied by allegations of negligence if the claims are to succeed. I appreciate of course that the particular reasons for that result in, say, Marcic and Dobson are different to those applicable here. But that does not lessen the attraction of endeavouring to achieve some measure of consistency in nuisance and environmental cases.
  504. It seems to me that it would make a nonsense of the careful balancing act between competing rights, set out over and over again in the more modern cases identified in Section C1-C3 above if, year in and year out, a company in the position of Biffa could comply with the detailed terms of the permit, receive glowing reports from the EA, always use best available techniques and never do anything that might be regarded as negligent, only to find themselves repeatedly liable in nuisance because, from time to time, there was an odour emission that was the inevitable result of their activities on site, which emission may have been actionable in accordance with the older nuisance cases. Such a position would, at a stroke, wipe out the careful balancing exercise in the EU Directives and the UK legislation between, on the one hand, the need for proper waste disposal arrangements which do not harm the environment and the inevitability that there may be some odour nuisance created as a result of those activities and, on the other, the need to protect the citizens from operators who fail to carry out their operations using best available techniques or due diligence. It would deprive a company in the position of Biffa of the defence of best available techniques to a nuisance claim and would create uncertainty and a potential limitless liability to those who might live near the site.
  505. The claimants' repeated reliance on Bamford v Turnley and the earlier nuisance cases does not address this central issue. The common law must be flexible in order to survive. What was appropriate in Victorian England may need to be modified in the rather more complex world of the twenty-first century. Then, there was very little statutory control of industry, development, and the environment; now there is, on one view, rather too much. This increase in statutory regulation was why Lord Goff made it plain in Cambridge Water that environmental legislation was one area in which it may be desirable for the common law to yield to statute. In the present case, it seems to me that it is in accordance with the modern nuisance cases to conclude that claims at common law can be made against Biffa, but only if they arise out of negligent acts and omissions on the part of Biffa, as opposed to the simple performance of the permitted activities.
  506. Furthermore, the more modern cases, like Kennaway and Watson, stress that it is necessary to balance the competing interests of neighbours. In undertaking that exercise here, the court is entitled to take into account the fact that the large scale tipping of waste as landfill is a necessity of a modern society, and the best (perhaps the only) way in which non-recyclable waste can be disposed of without causing significant harm to the environment. But of course, not even that 'benefit' could give Biffa carte blanche to run the site as they like. So a result that would penalise Biffa if they failed to run the site properly, but would not penalise them if they complied with their permit, seems to me to be the best way of maintaining the necessary balance.
  507. f) The Planning Permission Cases

  508. It was inherent in Mr Bates' submissions on behalf of the claimants that this analysis ran counter to the authorities, set out in Section C4 and C5 above, to the effect that the mere grant of planning permission did not authorise a nuisance. I have given that matter very careful thought but, in my judgment, this case is concerned with a very different sort of situation.
  509. In the reported cases to which I have referred, what the court was anxious to guard against was a situation in which, merely because planning permission had been given for the carrying out of a particular activity, the defendant was at liberty to perform that activity in any way that he chose, regardless of his neighbours. The courts have repeatedly held that the mere grant of planning permission does not give the recipient the right to undertake the permitted operation in any way that he chooses and with impunity.
  510. But in the present case, for the reasons set out above, I am far from holding that, merely because Biffa had a permit to carry out the waste disposal operations, they could perform those operations as they liked. The critical point here is that, unlike, say, a planning permission to construct a building, which may contain only a handful of general conditions, the permit granted on 7 April 2003 only allowed Biffa to carry out the activities at all if they complied with a raft of detailed conditions and obligations, all of which were the subject of detailed policing by the EA. In other words, what the courts were concerned about in the planning permission cases, namely the unrestricted carrying out of the permitted activity or operation regardless of the consequences for the neighbours, cannot arise in the present case, because here there is a detailed permit which is the subject of almost daily scrutiny by a third party (the EA).
  511. Furthermore, none of the reported cases were concerned with a situation where the actual nuisance which is the subject of complaint, in this case odour, was expressly accepted and permitted by both the relevant legislation and the terms of the detailed permit. As set out above, in this case some odour nuisance from the Westmill 2 site was expressly accepted as being inevitable[17]. In those circumstances, the operator's only obligation was to use best available techniques to reduce the odour. That is again very different to a situation where a developer has permission to build a house, but the permit says nothing about the inevitability of noise or dust.
  512. This situation is therefore different, because condition 2.6.12 allowed odour emissions which may otherwise have been actionable in nuisance. Provided that those emissions were at a level which fell short of being likely to cause pollution of the environment or serious detriment to the amenity of the Vicarage Estate, they were permitted. In none of the reported cases concerning planning permission was the event that was the subject of the claim (odour, noise etc) expressly allowed (at least up to a point) by the written terms of the permit itself.
  513. For those reasons, I do not consider that my conclusion is contrary to the authorities, such as Gillingham and Wheeler. Indeed, I consider that those cases are of limited assistance in a case like this. However, for the avoidance of doubt, I also reach the same conclusion as to reasonable user by reference to the effect of the granting of the permit upon the character of the neighbourhood, which is the exception in the reported cases to the rule that the planning permission is irrelevant to a consideration of reasonable user.
  514. G2 Character of Neighbourhood

  515. I have set out in paragraphs 214-220 above the principle that a planning consent can change the character of the neighbourhood by which the standard of reasonable user falls to be judged. In Gillingham, the alleged nuisance was the inevitable result of the planning permission. It was sanctioned by the permission and therefore could not be actionable. Similarly, in Watson, the implementation of what was described by the Court of Appeal as a strategic planning permission may 'so alter the nature and character of the locality as to shift the standard of reasonable user which governs the question of nuisance.'
  516. In the present case, the locality was not a purely residential area. The land to the northwest of the A10, where Westmill 2 was located, had traditionally been mixed use: industrial, quarrying, agriculture and some residential. And whilst, immediately to the south of the A10, the Vicarage Estate and the surrounding area is now principally residential, one part of that Estate was itself built on a former quarry/landfill site and has also been used for other purposes. More widely, the records show that gravel extraction was a common practice in and around Ware, with the resulting voids then being backfilled with waste.
  517. Accordingly, it seems to me that, at the time of the original permit in 1980, this neighbourhood, north and south of the A10, was properly described as having a mixed character, with some agricultural, some light industrial, some quarrying, and some existing landfill activities. It was also becoming more residential, as the town of Ware had expanded in a broadly north and westerly direction.
  518. Between 1980 and 2003, it is clear that the specific part of the neighbourhood located just south of the A10 became even more residential. This is, of course, best reflected by the fact that this was when the bulk of the Vicarage Estate was actually built. This was a sign that the town of Ware was continuing to grow, in this instance, in a north westerly direction. In one sense, the A10 and the Vicarage Estate came to mark the transitional zone between the town and the surrounding mixed use countryside.
  519. In all the circumstances, the grant of the permit in 2003 can therefore be said to have redressed the overall balance: to have made plain that this had not somehow become a purely residential locality, but instead remained a mixed use area. To put it another way: even though the housing was creeping progressively northwards up to the A10 during the period between the two permits of 1980 and 2003, this expansion did not mean that the area had suddenly become a purely residential locality. It was and remained a mixed use area, with a lengthy history of gravel extraction and landfilling, which the permit of 2003 only served to emphasise. Moreover, in my judgment, the grant of the tipping permit in 2003 was clearly strategic. Westmill 2 was the first landfill site of its kind, because it was taking pre-treated waste, and so it was always going to give rise to inevitable teething troubles.
  520. In my view, in the language of Watson, the permit did shift the standard of reasonable user, at least to this extent: it emphasised that, despite the more recent residential elements introduced in the locality over the last 40 years, the neighbourhood was and would remain of mixed use, and that the part of it north of the A10 was still suitable for use as a landfill site.
  521. Of course, that finding does not relieve Biffa of the obligation to carry out the activities on site properly, and manifestly does not relieve them of any liability in nuisance if they failed to use best available techniques/due diligence, or in any other way failed to run the site properly, and created a nuisance as a result. But the detailed permit does mean that, in the context of the mixed character of the neighbourhood, the carrying out of the permitted activities was not, of itself, an unreasonable user of the land.
  522. G3 Summary And The Effect Of These Findings On This Case

  523. Accordingly, for the reasons set out above, I have concluded that the use of the Westmill 2 site as a landfill site in accordance with the permit was a reasonable user of land. In the alternative, to the extent necessary, I consider that the granting of the permit had an effect upon the character of the neighbourhood such that, again, the use of the site for this purpose amounted to a reasonable user.
  524. I have referred above (paragraphs 202-205) to the debate as to whether, for these purposes, it is also necessary to find that the use of Westmill 2 as a landfill site was a natural or common or ordinary use of the land. My primary view is that no such finding is necessary, for the reasons that I have explained. However, for the avoidance of doubt, it seems to me that, in all the circumstances of this case, the use of the Westmill 2 site for this purpose was indeed a natural or common or ordinary use of the land. This is partly because I have found the use to be reasonable; partly because of the particular local conditions (gravel extraction and infilling with waste having been carried out on the boundaries of Ware for over 100 years) and partly because landfilling of one sort or another has been carried out in the UK as a means of dealing with household rubbish for even longer.
  525. Where do these conclusions leave the claimants' claims? As noted in paragraph 9 above, although the claimants had earlier maintained a very detailed case in negligence, that case was abandoned, lock stock and barrel, at the pre-trial review on 8 October 2010. A case based on breach of permit had never even been pleaded and was expressly not relied on (see paragraphs 10 and 11 above). Accordingly, the claim at the trial was restricted to a nuisance claim arising out of the activities themselves, with no other allegations of default. In those circumstances, the findings at paragraphs 342-373 above are fatal to the entirety of the claimants' remaining claims in this case. As a matter of law, in the absence of a case based on breaches of the permit, and once the negligence claims were abandoned, the simple claims in nuisance were bound to fail, because the use of the site in accordance with the permit was not an unreasonable use of land.
  526. I have not, of course, forgotten that Biffa were found to be in breach of the conditions of the permit on four occasions between August 2004 and February 2005. But it seems to me that, for two separate reasons, those four incidents cannot affect my conclusion on the point of principle relating to reasonable user.
  527. The first reason is that the claimants made plain from the outset that their nuisance claims did not rely upon those four breaches: see paragraph 10 above. Secondly, those four breaches have to be looked at in context. I am concerned with a period of operation of Westmill 2 that started in July 2004 and ended in October 2009, a period of over five years. It is, I think, impossible to elevate the status of four proven breaches of the permit over five years to a proper foundation for a claim in nuisance. One of the matters relevant to any assessment of nuisance is the frequency of the odour, noise etc. On any view, four odour incidents in five years could not amount to a nuisance in common law.
  528. I am also aware, as I have set out in Section B above, that on occasion, the EA expressed the view that Biffa were potentially in breach of the permit on a number of other subsequent occasions. But at no point did the EA formally allege that there was any such breach and, although on one occasion they issued a formal warning, they did not commence a prosecution. Moreover, the evidence was that at least one of the three events that were the subject of the notice was arguably not a breach at all, because it arose from the carrying out of approved mitigation measures (paragraphs 160-163 above).
  529. The situation as to breach therefore was very different to the one in Milka (see paragraph 244-247 above) where widespread breaches were alleged against and accepted by the defendants. Moreover, whether or not Biffa were in fact in breach of the terms of the permit on any occasion other than the four proven breaches remains very much in issue, and I simply do not have the evidence to resolve that dispute (should it have been relevant) in these proceedings.
  530. Finally on this point, it is worth noting that, even if all those other incidents were taken into account, and were assumed to be breaches of the permit, there would still not be more than about ten such incidents in total, which would equate to two odour events a year over the period with which I am concerned. Again, so it seems to me, it would be quite impossible to say that such a pattern amounted to an actionable nuisance.
  531. For all those reasons, therefore, the findings as to reasonable user/character of the neighbourhood mean that the claimants' claims in nuisance must fail as a matter of law. The remainder of this Judgment is therefore only of relevance if I am wrong on this central matter of principle, and that the claimants can bring nuisance claims, without negligence, for the consequences of activities permitted by the detailed conditions of the permit of 7 April 2003.
  532. H THE THRESHOLD

    H1 The Importance of the Threshold Position or Starting Point

  533. As a general rule in nuisance claims, it is necessary to establish a threshold position, or a starting point, to establish a minimum standard of comfort that a neighbour must accept as part of any reasonable user (and/or in accordance with the 'give and take' principle), but beyond which it can be said with confidence that the consequences of the relevant activities amounted to a nuisance. This can be seen as far back as Halsey, in which it was accepted that the occasional smell of oil, which had been present for many years, was not actionable and that what created the claim was the increase in the smell in both intensity and frequency.
  534. In a different context, the Watson case is of particular relevance. That was a case about the high levels of noise from a private motor circuit. The claimants there accepted that some high levels of noise were inevitable, but argued that the days on which such high levels of noise could legitimately emanate from the circuit should be restricted to 20 days each year. They also argued that 40 days a year would be acceptable, upon the payment of compensation for the difference between 20 and 40 days. Simon J concluded that a threshold figure of 40 noisy days should be adopted. The Court of Appeal rejected the criticism of the 40 day threshold, although they concluded that the judge should have granted an injunction to prevent noise on days in excess of that figure[18].
  535. In my view, the need for some sort of threshold in an odour nuisance case is imperative, not only because of the need to consider what might be reasonable user in all the circumstances, and/or to ensure 'give and take', in accordance with the authorities noted in Section C above, but also because odour cases are particularly susceptible to subjective interpretation, and are impossible to evaluate by reference to objective or scientific measurements. Odour is the most nebulous of the attacks on human senses. Unlike noise or pollution, say, there are no tests that can be undertaken to 'prove' smell at a particular level. In an odour case, therefore, a reasonable balance cannot be struck between competing interests without identifying, in some way, the appropriate dividing line, the moment when 'give' becomes 'take'.
  536. The requirement for such a starting point was also made plain by the claimants' own evidence in this case. Witness after witness confirmed that the smells were intermittent and sometimes would not be present for days or weeks on end. Even when there was odour, it was said to vary enormously in intensity. Many of the claimants' contemporaneous records referred to the particular odour event being noted as "faint". It was agreed that the odour was transient; it varied in duration from a few minutes to most of the day. It was also localised: sometimes there could be an odour complaint in one road, and, when an assessment was undertaken (whether by the EA or by Biffa themselves), it was discovered that there was no odour in the adjacent road. With such an amorphous nuisance being alleged, some kind of fixed starting point was essential.
  537. In addition, the vast majority of the claimants, when asked in cross-examination, expressly accepted that a certain amount of odour emission was inevitable and that, provided it was not too frequent and not too intense, they could live with it. That, for example, was the general evidence about the position after October 2009. A number of the witness statements ended with the same sentence: "Whilst I have experienced odours since that time [31.10.09] the odours have not occurred at a frequency or severity that I would consider to be unreasonable given the proximity of our home to the Site." That struck me as an entirely reasonable and common sense attitude. It is also in accordance with the 'give and take' principles to which I have earlier referred. But it is a completely meaningless statement, if the witnesses do not then go on to say what frequency and/or severity they were saying was reasonable in all the circumstances, and how and why what had happened at other times went beyond that threshold.
  538. A starting point or threshold was also required in this case because of the particular rights and obligations on the part of Biffa. The landfill site at Westmill 2, unlike the private motor circuit in Watson, was providing a necessary, indeed vital, environmental service. A certain amount of odour emission was always going to be inevitable and was never going to be actionable. Indeed, that was expressly encapsulated in the Directives, the UK legislation and, critically, condition 2.6.12 of the permit, which only prohibited odour "at levels as are likely to cause serious detriment to the amenity" of the Vicarage Estate, and therefore – by implication – allowed lesser odour emissions which did not cause such serious detriment.
  539. Accordingly, from all sides in this case, the question repeatedly arose: What was the appropriate starting point? What did the claimants say was an appropriate threshold, beyond which odour incidents of a particular intensity or frequency would become actionable? Unhappily, despite its centrality in Biffa's opening and closing submissions, there was never any answer to that question. The claimants' lawyers simply refused to address the issue, and never grappled with the underlying principle involved. On the claimants' pleaded case as presented at the trial, any odour complaint of any kind, regardless of frequency, duration, and intensity, and regardless of how vague and unsupported it might be by any contemporaneous record, gave rise to a claim for nuisance.
  540. As discussed during the claimants' oral closing submissions, I consider that to be a fundamental flaw in the presentation of the claimants' case. If, as they told me, a certain number of odour events, and/or a certain intensity of odour event, was properly considered to be acceptable by the claimants themselves (and was in any event expressly allowed for in both the legislation and the terms of the permit), then it must follow that not every odour event was actionable. That conclusion is also in accordance with the authorities. In this way, the claimants' own evidence (which expressly indicated that not every event was actionable), was wholly at odds with the 'no concessions' presentation of their claim at the trial.
  541. In their opening submissions, Biffa indicated a case on threshold by using as a comparator the 40 days a year racetrack noise permitted in Watson. The absence of any answering submission from the claimants as to what the permitted threshold might be, and the resulting absence of any debate as to the appropriate starting point, has placed the court in a very difficult position. It means that any test formulated in this Judgment will not have been considered by the parties, who will not have had an opportunity to respond to any court-created threshold.
  542. However, notwithstanding these difficulties, I have reached the firm conclusion that a court considering an odour claim such as this must reach a conclusion as to the appropriate starting point or threshold, in order to be able to go on and analyse whether or not that threshold has been exceeded and, if so, when and how. It is too fundamental a point to be ignored or avoided.
  543. I should say, for the avoidance of doubt, that, in my view, this is not an accidental omission on the part of the claimants' lawyers. They maintained that no threshold was necessary because, as Sections H2-H7 below make clear, they knew that, if any attempt was made to identify a starting point, it immediately showed that their Estate-wide approach to this claim was fundamentally flawed, and that, for different reasons, almost none of these claimants would have been able even to argue that the appropriate starting point had been exceeded.
  544. H2 The Appropriate Methodology

  545. For the reasons noted above, I am required to undertake my own analysis of the appropriate threshold. First, it is necessary to consider the claimants' evidence surrounding the alleged odour events, in order to see whether some form of threshold test emerges from that. I do that in Sections H2 and H3 below. Secondly, it is instructive to look at the other contemporaneous evidence, that is to say, the records emanating from Biffa and the EA, to see what difference, if any, that may make to my approach (Section H4). Then the evidence as a whole must be compared with the approach in the recent cases, particularly Watson (Section H5). My analysis is at Section H6, where I identify what, in all the circumstances, a reasonable threshold might be, and then I go on to see if the claimants' evidence demonstrates, at least in general terms, whether or not that threshold has been exceeded. There is a summary of my conclusions at Section H7 below.
  546. H2 The Claimants' Evidence

    H2.1 Contemporaneous Records and the Witness Statements

  547. There were the following types of contemporaneous records compiled by the claimants:
  548. a) Individual diaries and other specific manuscript records (Section H2.2 below);

    b) The EA log of the claimants' complaints (Section H2.3 below);

    c) The Nuisance Record Forms (Section H2.4 below);

    d) The Odour Nuisance Tables (Section H2.5 below).

    H2.2 The Diaries and Manuscript Notes

  549. Very few of the 30 lead claimants kept diaries or other contemporaneous manuscript notes recording individual odour incidents. By far the best records were those kept by Mr John Chambers, Mr Roger Hobbs, Mr Stewart Clark, Mr Derrick Barr and Mr Paul Packham. The vast majority of the remaining claimants kept no diaries or other contemporaneous records of their own. Some who did kept very sporadic notes, which were of no use in trying to work out intensity or frequency of odour events, so as to arrive at a starting point or threshold.
  550. H2.3 The EA Complaints

  551. The same five claimants noted above were also responsible for the majority of the calls to the EA which were logged and which formed a detailed record of events. In addition, two other claimants who gave evidence, Mrs Claire Chandler and Mrs Julie Rimmer, also made a large number of complaints to the EA, often with very specific complaints and/or consequences noted in the call. They both also kept some contemporaneous records.
  552. The log of the complaint calls to the EA was prepared by the EA themselves. It contains a summary of the complaint that was made by the individual who rang the helpline. A study of the summaries of those calls provides a useful indication of the nature and extent of the calls, and the particular complaints being made, at any given time. They also dovetail fairly consistently with the diaries and logs referred to above, although there are some discrepancies. At paragraph 12 of their closing submissions, Biffa say:
  553. "It is submitted that the diaries and EA complaints records of these Claimant Diarists, when considered in the context of each other and the other contemporaneous records presents a reasonably accurate picture of the number of material odour days that is days on which odour incidents affected the amenity value/utility of their property. That is because such Claimant Diarists set out to record and report odour whenever it occurred to a material extent (indeed in many cases whenever it occurred to any extent). Neither set of records is complete – competing demands on time have no doubt precluded perfection. But such records (particularly those of the fastidious Mr Hobbs) give a very accurate representation of the variable experiences of those in the Claimant Diarist grouping."
  554. I agree with that submission. The EA log, when read with the other contemporaneous material prepared by the claimants, provides the most accurate picture available of the number of material odour days which affected them.
  555. These seven claimants (Chambers, Barr, Hobbs, Clark, Packham, Chandler and Rimmer[19]) are therefore in a different position to the remaining 23 claimants. The remaining 23 made either no calls to the EA, or just one or two during the five year period with which I am concerned. Again therefore, the records of 23 out of 30 claimants could not begin to establish a starting point or threshold.
  556. H2.4 The Nuisance Record Forms

  557. The Nuisance Record Forms ("NRFs") were blank forms prepared by Hugh James, for the claimants to fill out. The forms were not provided to the claimants until late 2007 or early 2008. It was common ground that, in general terms, the rate of complaints had significantly lessened by then. The NRFs were obviously of no value in assessing the nature of the odour incidents in 2004-2007, which in many ways were the peak years. Furthermore, the NRFs were only filled in by a handful of claimants and, even then, only one or two filled them in for more than a month or so. Oddly, although Hugh James said that they had supplied the NRFs to most of the claimants, only a handful of them said that they had actually received them, which, as an explanation for why they had not been completed by the majority, seemed implausible. They were in any event of very limited value in calculating the starting point or threshold.
  558. H2.5 The Odour Nuisance Tables

  559. The Odour Nuisance Tables ("ONTs") were again devised by Hugh James, and were designed to allow the claimants to record, retrospectively, the nature of the smells from the Westmill 2 site going back to July 2004. Most of the 30 claimants had bothered to fill in the ONTs, so it is important to set out in some detail my wholly negative views about the probative value of this particular record.
  560. In the first place, there were problems with the way in which the information was sought. The tables were divided into relatively random periods, usually, but not always, equating to a quarter of a year. The first period was July 2004 to August 2004 and the last was from June 2009 to August 2009. It then asked the compiler to record the odour nuisance under a number of columns entitled 'Daily'; 'More Than Once Per Week'; 'Once Per Week'; 'Less Than Once Per Week'; 'Once Per Month'; and 'Less Than Once Per Month'. The compiler was then asked to say, not only which column per quarter was the relevant one but also to identify the 'Average Duration'. As to the intensity of the odour, the compilers were asked to say whether the incidents were 'Severe', 'Moderate' or 'Light'.
  561. The difficulties with this generalised approach were manifest. First, it was expecting far too much of the individual claimant to be able to fill in the ONT accurately three, four or five years after the event, particularly for those claimants, who constituted the vast majority, who had not complained and had no contemporaneous records to help jog their memory. The ONT tested the recollection of these claimants beyond any reasonable limit. In order to be able to say accurately whether or not, during the period of, say, July 2004 and August 2004, the odour incidents were occurring more than once per week, and that those incidents were moderate, the compiler in 2008 or 2009 would have needed some form of record or note in order to be able to fill out the table accurately. Without any such records, travelling back in time three, four or five years, the compiler had no option but to guess at very general answers. That guesswork rendered the table of no assistance at all.
  562. Secondly, everyone agreed that the odour incidents in this case involved intermittent odour, sometimes of a low intensity and sometimes of a high intensity, that might come days or weeks after the last incident. It was impossible to summarise those incidents accurately under such a broadbrush table, which only allowed a one word comment as to intensity to sum up the events in each 3 month period.
  563. My concerns with the reliability of the ONTs were confirmed by the evidence of the claimants themselves. Many of them had simply filled out the tables on a seasonal basis, indicating the most severe odour and the highest frequency of incidents during the summer months, with a decline into the winter. Beyond that, as they admitted in their evidence, they were unable to confirm the accuracy of the tables. Indeed, many witnesses expressly said that the ONTs were not accurate.
  564. My wholly negative view of the ONT was borne out by the claimants themselves. For example, Mr Lethbridge, one of many claimants whose witness statement relied solely on the ONT as a record of odour, accepted in cross-examination that he "wouldn't put any accuracy" on the ONT. Many other claimants said the same or similar (see paragraph 467 below); indeed, in cross-examination, not one claimant stuck by the ONTs as an accurate way of recording the odour incidents. No witness positively put forward the ONT as comprising such a reliable record.
  565. H2.6 The Witness Statements and the Oral Evidence

  566. Inevitably, given the significant absence of contemporaneous records available to the claimants, their witness statements and much of their oral evidence was very general in nature. Unless their evidence could be tailored to a particular document, the claimants, not unreasonably, struggled to remember particular events or periods of odour duration, intensity, intermittency etc. The majority of the claimants accepted that there were weeks or months when there was no smell from Westmill 2 and that sometimes, when there was a smell, it was faint and/or did not last for very long. None of that very general evidence helped me to identify a sensible threshold to take as the starting point for any consideration of what might constitute reasonable user in this particular case.
  567. H3 The Practical Significance of Complaints and Contemporaneous Records

  568. Throughout the claimants' closing submissions, there was a constant refrain, to the effect that the court should have little or no regard to the contemporaneous documents, and should instead rely on the claimants' general evidence in the witness statements. Indeed, somewhat remarkably, the claimants took this to the extreme of criticising their own contemporaneous records as unreliable and "not providing anything near a complete picture" (see paragraph 22 of their closing submissions). Instead, the claimants argued that the court should simply prefer the bland generalities in the witness statements and assume that, if the claimants gave honest evidence, then they had proved their case on the balance of probabilities.
  569. In addition, and doubtless because they were concerned about the reliability of such records as there were, the claimants argued that it was unnecessary for them to identify contemporaneous complaints/notes in order to succeed in nuisance. In this regard, they relied on the decision in Halsey, where the judge dismissed the defendants' case that there had been no contemporaneous complaints, saying that, whether or not there were complaints, the claimants had had much to complain about. In this way, the claimants in this case seek to justify a claim which was opened on the basis that each claimant had suffered at least 100 days of odour nuisance every year, despite the fact that most of them had not made a single complaint about odour and did not have a single contemporaneous record of even one such day.
  570. I am unable to accept the claimants' approach. It seems to me to be an illegitimate attempt to elevate the meaningless generality in place of the verifiable specific. Of course, evidence is a matter of fact and degree, and a combination of plausible oral evidence, or a truthful written witness statement, together with some contemporaneous records of or complaints about odour events, is a valid way of putting forward a nuisance claim of this kind. But to suggest that the contemporaneous records should be discarded altogether, and that the kind of vague generalities which make up the claimants' witness statements should be accepted as establishing a nuisance case in these circumstances, is fundamentally misconceived. It is, I believe, a submission necessitated by the complete absence of contemporaneous complaints/notes from the vast bulk of the claimants, and the desire to hang on to the Estate-wide Group Litigation policy pursued by Hugh James.
  571. I accept as a matter of narrow principle that contemporaneous complaints or records are not, of themselves, a mandatory ingredient for a successful claim in nuisance. I also understand that the British public are not, by nature, assiduous complainers and will often be prepared to put up with a good deal without dissent. But as a matter of practical reality, it seems to me that, in a case like this, the complete absence of contemporaneous complaints or records from the majority of claimants, in a situation going on for five years, immediately raises a significant doubt as to whether those claimants suffered an actionable nuisance at all. Of course it is a matter of degree, and nobody would expect daily complaints or records about a constant smell, but where the smell is intermittent, transient, and localised, a certain amount of complaints or contemporaneous records will be the only safe way in which a court can be persuaded that something over and above the ordinary 'give and take' has occurred. Otherwise a claim could be advanced by mere assertion after the event, giving the defendant no proper opportunity to challenge such a case, and leaving the court without a fair way of assessing the reliability of such general evidence.
  572. Moreover, the importance of such records and complaints cannot be said to be something of which the claimants in this case were unaware at the time. On the contrary, the leaflets from Messrs Clark and Hobbs repeatedly stressed the importance of making a logged complaint, and went on to say that it was up to the individual resident to complain every time there was an odour "no matter how strong", and that they should not rely on others to make complaints for them (see paragraphs 44, 49, 86 and 90 above). In addition, when Hugh James were instructed, amongst the first things they did was to send out the NRF to many of the claimants to act as a vehicle for recording current odour events, and the ONTs to record past odour events. That again showed that the claimants' solicitors were aware of the importance of records.
  573. In my judgment, the Clark/Hobbs reminders, and the recognition by Hugh James that contemporaneous records were required, constituted sound common sense. Yet very few of the claimants, let alone the residents as a whole, followed the Clark/Hobbs advice or filled in the NRFs. The court therefore has to ask itself why that was: the most logical answer, of course, is that the odour emissions did not trouble the majority of the residents very much at all, because if they had done, there would have been far more complaints and many more contemporaneous records of odour events.
  574. There is another fundamental difficulty with the claimants' exclusive reliance on their witness statements and oral evidence: neither put forward any material which could be used to identify any sort of threshold or starting-point. That is perhaps unsurprising; if the claimants could not tease any such threshold out of their contemporary records (such as they were), it was never going to be possible to do so from the scrupulously vague material in the statements. For the reasons which I have already given, that is a necessary task, but it is one on which the general nature of the witness statements is simply of no assistance.
  575. So I am driven back to the claimants' contemporaneous records as the only material on which a starting point or threshold might be calculated, even though they have not undertaken that task themselves. How, if at all, can these records be of assistance in arriving at a starting point or threshold in this case?
  576. One possible approach to those contemporaneous records of particular incidents, or complaints to a third party about specific odour events, might have been to assume that, if a resident of the Estate had bothered to make a contemporaneous record, or a complaint to the EA, on a particular day then that is an indication that the smell for that particular claimant on that particular day had gone beyond that which might be regarded as acceptable within the confines of ordinary 'give and take'. The corollary, of course, would be that the days when that claimant went without complaint or other contemporaneous record of odour were days when either no odour, or no odour that was considered to be the wrong side of the line, had occurred.
  577. As a matter of common sense, it seems to me that that test has something to commend it. The claimants told me that they were prepared to put up with a certain amount of odour as part and parcel of everyday life. They were also aware, through the leaflets, that if a particular odour event was a matter about which they wanted to complain, there were numbers to ring and operators to speak to. The logical conclusion may be that the contemporaneous complaints and the individual records (when taken together) show those days, which Biffa have called odour complaint days, when, in the claimants' eyes at least, the 'give and take' threshold was crossed.
  578. However, a detailed analysis of the complaints and other records themselves quickly demonstrates that such an approach is much too generous to the claimants; it would create much too low a threshold. That is for two reasons. First, many of the contemporaneous records of complaints and odour events make clear that the odour identified was "faint" or lasted for a few minutes only. Accordingly, although there may be a contemporaneous complaint or record on a particular day, it is clear from an objective analysis of that complaint that it would not fall on the wrong side of any 'give and take' boundary.
  579. Secondly, I find that the seven claimants to whom I have referred, who were responsible for the bulk of the complaints, followed their own advice in the Clark/Hobbs leaflets. They therefore complained whenever there was odour, no matter how faint, no matter how transient, no matter how localised. The seven claimants were making their complaints to register the fact that there was odour, and without having regard to any other factor. That was not an unreasonable thing to do in the circumstances; indeed, it might be said that they had very little alternative. But this means that they were not making those complaints from the standpoint of somebody who believed that the particular event about which they were complaining had crossed a reasonable threshold; on the contrary, they were making the complaint because there had been an emission of odour, regardless of its scope or extent.
  580. Accordingly, in the absence of any assistance or analysis from the claimants' statements and oral evidence, I have concluded that the claimants' contemporaneous records and complaints, which show a number of odour complaint days for each claimant for each year, are broadly of assistance in two ways in helping me to identify a necessary threshold or starting point. First, the absence of any complaint or record from a particular claimant for any given day must mean that the claimant concerned was not troubled by odour on that day, and did not consider that the nuisance strayed over any threshold or starting point to become objectionable.
  581. Secondly, in relation to those claimants who did complain and did keep proper records, it will be the odour complaint days calculated from those contemporaneous records which will act as a guide to the appropriate threshold. But the extrapolation from the complaints and other records to a reasonable starting point for a consideration of nuisance will be on the clear understanding that the odour complaint days include days when the odour was too short in duration, too faint in nature or too localised in effect to be a matter capable of amounting to a nuisance. It was being noted because it was part of an attempt at a complete record, and not because it was necessarily an objectionable nuisance.
  582. The immediate problem for the claimants with this approach is stark. Save for the seven claimants noted in paragraphs 396-397 above, the absence of any significant contemporaneous records or complaints from the remaining 23 claimants means that, assuming that a contemporaneous record/complaint may evidence the crossing of the threshold, but not otherwise, those 23 have not demonstrated that the odour was such that an actionable nuisance was created. In a case that stretches over five years, the failure to make more than one or two complaints or contemporaneous notes of odour strongly suggests that, in the round, the emissions were properly regarded by those claimants as tolerable, and therefore the acceptable side of the line, whether measured by reference to the terms of the permit, or the common law balance of 'give and take'. In other words, for the vast majority of the claimants, their experience did not exceed even this generous estimation of the threshold.
  583. I now turn to the other contemporaneous records to see whether they assist in the estimation of any sort of threshold or starting point and, if so, whether that threshold or starting point is the same as, or different to, the general indication that I have been able to glean from the claimants' contemporaneous documents, identified in the previous paragraphs.
  584. H4 Other Contemporaneous Records

  585. There are two other types of contemporaneous record which are relevant for this purpose. They are the records of Biffa's own assessments; and the records of the EA's own assessments.
  586. H4.1 The Biffa Odour Assessment Forms

  587. The Biffa Odour Assessment Forms were gathered together in Bundles N1 and N2. They demonstrate a somewhat sporadic assessment system. Thus there were no assessments on the Vicarage Estate until November 2004, in which month there were 10. Of these, Biffa found odour on 3 occasions and failed to find odour on 7 occasions. In 2005, between March and September, Biffa carried out over 100 such assessments. 24 assessments by Biffa of the Vicarage Estate between March and September found odour in some part of the Estate. By contrast, 112 assessments carried out during that time found no odour on the Estate.
  588. In 2006 there were far fewer assessments. For the whole year, there were 19 assessments which found odour on the Estate and 50 assessments which found no odour on the Estate. In 2007 there was an increase in the number of assessments in which odour was found, and an increase in the percentage of overall assessments where odour was found, but the levels were lower than in 2005. In 2008, the last full year for which these records are relevant, the majority of the assessments were in the summer months. Between March and September 2008, there were 40 assessments which found odour at some part of the Vicarage Estate and 72 assessments which did not find odour at any part of the Estate.
  589. Furthermore, it is important to note that a great many of these Biffa Odour Assessments, when they did find odour, described what had been found as a "slight smell of waste" (21/06/05) or "slight masking agent detected" (19/07/05). When the reports changed in format, with the odour being subjected to numbered gradings for intensity, extent and sensitivity, the vast majority of the reports identified 0 for extent and sensitivity and 1 for intensity. A typical example was the sheet for 9 May 2006 where the record noted that in Greyfriars and Wheatsheaf Drive, the recorder had "detected faint pockets/transient waste odour".
  590. On the other hand, there were sometimes odour events which were much more serious. Thus the sheet for 3 August 2006 identified the intensity as 2/3, and the extent and sensitivity as 4. Even then, the stale waste odour recorded in the sheet as being detected in the Vicarage Estate was described as "constant but faint".
  591. The Biffa Odour Assessment sheets emphasise that, for the majority of the time, there was no odour emanating from Westmill 2 and that, when odour did escape, it was often faint and transient, and that, at least, provides some confirmation for the approach (based on odour complaint days) to the threshold or starting point which I have set out above.
  592. That said, I should add that, in my view, the Biffa Odour Assessments are not to be regarded as entirely reliable. There are a number of reasons for that. First, there were very few assessments in the early days of the difficulties, at least in part because there appeared to be no sensible system in place within the Biffa management of the site. I have already referred to Biffa's own internal concerns about the absence of qualified personnel.
  593. Secondly, the later reports are problematic because I cannot help but conclude that they reflect the increasing acrimony in the relationship with the EA. I have already set out at length the tit-for-tat correspondence which this engendered, and the Biffa Odour Assessments were utilised as one weapon in that war. Thirdly, there was the point that the EA fairly made at the time, to the effect that those working on a site like Westmill 2 were going to have much less sensitivity to odour than the residents.
  594. Accordingly, for these reasons, I do not consider that the Biffa Odour Assessment records are entirely reliable. However, I must also note that they were not challenged in cross-examination and, perhaps more importantly, they give the same broad picture as the claimants' own contemporaneous evidence, namely that odour was irregular, variable in intensity, and transient. They certainly do not lead me to conclude that a threshold calculated by reference to the claimants' odour complaint days is inappropriate.
  595. H4.2 The EA Records

  596. The EA Site Inspection Reports (SIRs) were in Bundle K. They consisted of inspection reports which were generated either as a result of regular visits pursuant to their statutory powers, or as a result of complaints. In many ways, the SIRs should be a more reliable contemporaneous guide to the odour events than any other, because they were prepared by the independent regulator, and ought therefore to be free of bias or partiality.
  597. There were 154 SIRs, although not all of them measured odour on the Vicarage Estate. Of those that did, 37 identified odour and 38 did not. The vast majority of the 37 which indicated an odour emission had been prompted by a complaint or complaints from a resident of the Estate. It is noteworthy that, on their regular routine inspections (i.e. those not triggered by a complaint), the EA only found odour on four occasions. All of those occasions were in the summer months of 2005 which was probably the single most problematic period, for the reasons explained above.
  598. It seems to me therefore that Biffa are right to submit, as they do at paragraph 27.1(c) of their closing submissions, that it is notable that, on 89 routine EA visits, only four potential odour breaches were noted. Even though only 30 of those visits were accompanied by an off site visit, it must be likely that such a visit to the Vicarage Estate would have been undertaken if there had been an odour complaint either before or during the visit.
  599. We also know that, in addition to the four incidents that were the subject of the successful EA prosecution, there were 3 other incidents, all in 2008, when the EA considered that there was a breach of the permit (see paragraphs 149-163 above). An analysis of the relevant SIRs in Bundle K relating to those incidents reflects a tougher line being taken by the EA, particularly in relation to the event on 8th October, where the event was apparently caused by works which, on Biffa's case, they were obliged to carry out in order to comply with the permit.
  600. In my view, the EA's reports confirm that it would be a mistake to equate every odour complaint day with an odour event of such intensity or duration that it was in excess of a reasonable threshold. Far from it: the EA's reports demonstrate that, even when there had been a complaint, their inspectors were often unable to find any evidence of an odour event, or assessed the odour as faint or transient. Not only do the SIRs show that a claim based on nuisance for 100 days a year for five years for every claimant on the Vicarage Estate to be nothing short of fanciful, but it also strengthens my view that those claimants who were complaining or making contemporaneous notes did so regardless of intensity, duration or locality of smell.
  601. Accordingly, it seems to me that the claimants' contemporaneous records and the EA log, providing numbers of odour complaint days, provide the best material on which to calculate the appropriate threshold or starting point. That is a conclusion supported by the records generated by Biffa and the EA. However, as all of the documents analysed above make plain, that assessment cannot be undertaken on the basis that an odour complaint day equates to a day on which there was a strong and durable odour across a large part of the Vicarage Estate, and therefore an actionable nuisance. On the contrary, the evidence is clear that an odour complaint day was no more than a day on which a claimant complained about or recorded any odour emanating from Westmill 2, regardless of its intensity, duration and locality.
  602. H5 The Approach in Watson

  603. I have set out above the approach in the cases, culminating in Watson, where the court had to consider what an appropriate noise threshold might be. In that case, the court concluded that the claimants had to accept 40 noisy days of motor racing every year; that that was the threshold, beyond which the claimants were entitled to an injunction to prevent the nuisance, but below which they had no claim.
  604. It is worth just taking a moment to consider what those 40 days involved. This meant that for 40 days each year, there could be loud intrusive noises emanating from the race circuit for the entirety of the day. On those days, the claimants would be unable to use their gardens and would have to close their windows (see paragraphs 60-66 of the judgment of Simon J). The likelihood was that those days would be principally at weekends or holidays, and would therefore be of particular annoyance to those out of the house during the week.
  605. Biffa argue that the position of the claimants in the present case, even taking the claim at its highest, is less disruptive and less pervasive. There is precious little evidence that an odour event lasted an entire day. On the contrary, the evidence was that most of the odour emissions were transitory and intermittent, even on those days when they occurred at all. Only on rare occasions did the odour complained of cause windows to be closed or gardens not to be used.
  606. There is force in those points, although I also accept the claimants' counter-argument that, at least up to a point, the nuisance in Watson was predictable (racing days were fixed in advance), whereas the odour nuisance here was not. The claimants' other submission, to the effect that here there was evidence of odour at night, which was not the situation with the noise in Watson, seems to me to be of little consequence, given that the evidence that there was significant odour at night was very limited and, to the extent that there was, it had little or no effect on the lives of the residents of the Vicarage Estate.
  607. In the round, therefore, I have concluded that Watson provides at least a guideline in the present circumstances to what might be regarded as an acceptable threshold. That is not to say that I have taken the 40 days as, in some way, written in stone: I have not. But it seems to me that, in the absence of a cogent case from the claimants as to the appropriate threshold, an analysis of that threshold which identifies a number of days on which inconvenience must be accepted, averaged out over a year, is a sensible and fair approach.
  608. H6 Analysis

    H6.1 The Appropriate Threshold

  609. On the basis of the material set out above, I have concluded that:
  610. a) A claimant who failed to make any contemporaneous complaints or records (or anything other than a handful of such complaints or records) over the five year period with which I am concerned, cannot begin to demonstrate that the odour which he or she experienced was beyond an acceptable threshold or starting-point. The absence of significant complaints or contemporaneous records merely demonstrates that those 23 claimants (who are identified in Categories 1, 2 and 3 in Section I of this Judgment) considered that such odour events as they experienced were tolerable and not beyond the ordinary 'give and take'.

    b) In relation to those seven claimants in Category 4 (as also described in Section I of this Judgment), their contemporaneous records of complaints and odour events allow me to calculate a total for each claimant of odour complaint days, which were days on which that individual claimant made a complaint or noted an odour event. They provide the high water mark of the claimants' case in these proceedings. Those odour complaint days cover everything from short, transient, localised odour emissions to longer, much more intense emissions. They provide the best material available on which a threshold can be calculated, averaged out over a year.

    c) By contrast, the contemporaneous records do not allow me to fix a threshold by reference to events of a particular intensity or duration. They do not contain that level of detail, and are too internally contradictory to allow any attempt at such an exercise. Moreover, there has been no presentation of such a case by either side. Thus, although I may have preferred to do it in that way, the contemporaneous material does not allow me to say that, for example, an appropriate threshold was two serious odour events a month lasting more than an hour, or something of that sort.

  611. As I have said, the contemporaneous records and the EA log contain the widest possible spectrum of complaint, from faint to strong, from short to long, from one part of one road to the whole of the Vicarage Estate. Many of those odour complaint days could not (if taken individually) found an action for nuisance; others, depending on their frequency, might have been able so to do. That wide spectrum is borne out by the SIRs and the Biffa Odour Assessments. Accordingly, I have concluded that, based on the contemporaneous material, an appropriate threshold amounted to an average, taken over a year, of one odour complaint day each week (ie 52 each year), regardless of intensity, duration, and locality. In other words, if a particular claimant's odour complaint days for a given year were in excess of 52, the threshold has been exceeded and a prima facie case in nuisance has been made out. In my judgment, that is the only sensible threshold that can be identified by reference to the contemporaneous material with which I have been provided.
  612. H6.2 The Effect On The Claimants' Claims

  613. I analyse the claimants' claims individually in Section I of this Judgment. For the reasons set out there, 23 of the 30 claimants, namely those in Categories 1, 2 and 3, who either made no contemporaneous notes or complaints, or only a small handful over five years, cannot begin to demonstrate that any appropriate threshold has been crossed. Accordingly, in circumstances where the general written and oral evidence cannot help on the question of threshold – because it does not address that question at all – I conclude that all such claims must inevitably fail. The failure to engage with the threshold point, and my conclusions as to where a reasonable threshold might lie, make it inevitable that a handful of complaints over five years (let alone no complaints at all) does not begin to get over the necessary first hurdle.
  614. That leaves the seven claimants in Category 4, whose claims I analyse in Section I5 below. Those are the seven claimants who did make contemporaneous notes and/or complaints in sufficient number to give rise to at least an issue as to whether or not their experience has crossed the appropriate threshold. However, having considered the matter carefully, I have concluded that, with two exceptions in one year only, these claimants cannot get across the threshold of one odour complaint day event a week, regardless of intensity, duration or locality.
  615. For the purpose of explaining that conclusion, it is appropriate to analyse Mr Barr's complaints record. That is because Mr Barr had more odour complaint days than anyone else. If Mr Barr's evidence does not cross the threshold, then, at least as a generality, neither will that of anyone else.
  616. Mr Barr was responsible for 204 complaints. However, some of those were made on the same day. Taking into account both the EA logs and his personal records, Mr Barr was responsible for a total of 182 odour complaint days. That was out of a total of 1,825 relevant days, being 365 days x 5 years. That is almost exactly 10%; that is to say, on average during this period, Mr Barr made a complaint or a note about odour once every 10 days. There were 13 such days in 2004, 35 in 2005, 36 in 2006, 47 in 2007, 39 in 2008 and 12 in 2009.
  617. When those days are cross-referenced to Mr Barr's Odour log, it can be seen that some of these events were significant, either in terms of duration, or intensity, or both; others were trivial, with mild or faint odour noted; and were of very short duration. Some of these events were transient, in that they came and went without apparently affecting others in close proximity. Some of his records were the subject of challenge, in particular by reference to the evidence of Ms Da Costa, who directly challenged at least one of Mr Barr's assessments of odour level.
  618. Accordingly, so it seems to me, even taking the claimants' case at its absolute highest, in comparison with the sort of level in Watson, and the sort of level which it seems to me would be an appropriate threshold here, Mr Barr's claim falls the wrong side of it. I have calculated the threshold at one odour event each week regardless of intensity, duration and locality; or 52 over the course of one year. Mr Barr did not meet that threshold for any of the years with which I am concerned. As his was the fullest evidence of complaints and contemporaneous records, this means that, save in two specific instances, neither did any of the other seven claimants.
  619. The exceptions noted above concern Mr Hobbs and Mr Clark, and their evidence for the year 2005. During that year, Mr Hobbs' records demonstrate 64 odour complaint days. Whilst it is also clear from his records that those complaints were, like those of the other claimants, not limited to odours of particular intensity or duration, for this purpose that does not matter. I have identified the threshold as being 52 odour complaint days, averaged throughout the year, regardless of intensity or duration. Accordingly, so it seems to me, Mr Hobbs has demonstrated that his case passes the necessary threshold for 2005.
  620. The same considerations apply to Mr Clark in 2005. There were 56 odour complaint days recorded by Mr Clark for that year. Thus, applying the same threshold, it seems to me that Mr Clark has also demonstrated, albeit by a smaller margin, that the appropriate threshold was exceeded in his case in 2005.
  621. H7 Conclusions

  622. The claimants' advisers have adopted what appears to be a deliberate policy decision not to identify a threshold level of odour, whether in terms of intensity, frequency, or geographical location. Since there can be no doubt that not every odour incident is actionable, such a starting point is required, and its absence means that the whole claim is deeply flawed.
  623. Moreover, I have concluded that this failing is deliberate: the contemporaneous records are so poor that, as soon as any sort of theoretical threshold or starting point is articulated, the vast majority of the lead claimants (23 out of 30) can immediately be seen to fall a long way the wrong side of the line. In cases where there are no or no significant contemporaneous records, either of complaint or of odour events, then the only proper conclusion to draw is that the particular claimant in question, who had been repeatedly told of the importance of making complaints, did not consider that the odour event was outside what might reasonably be expected in the locality.
  624. Accordingly, in the absence of a stated threshold, and on the undisputed evidence that, in relation to the 30 claimants, 23 had made either no contemporaneous complaints or records, or a very sporadic handful over five years, those 23 claimants fail to get anywhere near to demonstrating that they have got beyond the starting point for a claim in nuisance[20].
  625. The seven remaining claimants present a better case, because they do have clear contemporaneous evidence of complaints and/or specific odour incidents. But their odour complaint days contain a mix of odour events which objectively justified a complaint, and events which did not. On the basis of that material, I have been obliged to assess a reasonable threshold as being one such odour complaint day a week, or 52 a year. Even taking the claimants' case at its highest, namely the claims of Mr Barr, the seven claimants (with two exceptions) have not demonstrated that their experience put them over the appropriate threshold or starting point. The exceptions are Mr Hobbs and Mr Clark in 2005, when their odour complaint days were respectively 64 (12 in excess of the threshold that I have identified) and 56 (4 in excess of the threshold).
  626. Accordingly, if I was wrong about reasonable user/character of the area, and Biffa were potentially liable to claims in nuisance without negligence, then I am in no doubt that, save for Mr Hobbs and Mr Clark in 2005, none of the claimants in this batch of 30 have demonstrated that they have experienced nuisance which is more than can be justified by reference to reasonable user/'give and take'. I acknowledge that seven of them (Mrs Claire Chandler, Mr John Chambers, Mr Rodger Hobbs, Mr Stewart Clark, Mr Derrick Barr, Mr Paul Packham and Mrs Julie Rimmer) have contemporaneous records, both of complaints and particular incidents, which enabled them to mount an arguable case on threshold but, on analysis, and with the exception of Mr Hobbs and Mr Clark in 2005, they do not allow me to say that what they experienced was beyond the appropriate threshold or starting point.
  627. In Section I below, I analyse briefly each of the claimants' claims but I emphasise that, for the reasons that I have given, and with the two limited exceptions to which I have already referred, none of these 30 lead claimants have been able to demonstrate that they have got beyond the necessary threshold or starting point, and so have failed to make out any sort of nuisance claim on the facts at all.
  628. I THE INDIVIDUAL CLAIMS

    I1: Exaggeration

  629. Before examining the claimants' claims individually, I should address one general point that has been raised by Biffa, concerning the alleged exaggeration of those claims. In my view, there are two types of exaggeration possible in nuisance claims of this sort. First, there is deliberate exaggeration; the telling of untruths to bolster a claim, or the creation of false documents to provide bogus support for such a claim. Biffa alleged that many of the claimants were guilty of one or both of these. However, with the exception of one individual claimant, addressed at paragraphs 483-488 below, and one general issue as to 'background odour', I reject the allegation of deliberate exaggeration. I find that generally the claimants were honest witnesses endeavouring to help the court.
  630. The general issue arose in this way. Although there was no mention of it in their witness statements, and although it was contrary to the policy expressly set out in the Clark/Hobbs leaflets to complain whenever there was any smell, regardless of duration or intensity, a number of the claimants indicated, in cross-examination, that they did not complain about what they called 'background odour'. This term was never further defined. Given the complete lack of any contemporaneous evidence for such a policy; given that the contemporaneous evidence demonstrated that faint or background odours were the subject of complaint; and given that it was contrary to the express policy noted above, I cannot accept this new evidence. I ascribed it either to the unconscious exaggeration to which odour cases are prone (see paragraph 463 below), or to a clumsy and unsuccessful attempt, at the last minute, to persuade me that each odour complaint day established a nuisance because faint odours were not the subject of complaint.
  631. A second type of exaggeration can arise in odour cases by reason of the passage of time and the strong feelings that it can engender. A number of the reported odour cases have stated that they are particularly prone to the possibility of exaggeration, not conscious or dishonest, but because the presence of a disagreeable smell naturally leads to it. That was a point made by Stephenson LJ in Bone v Seale [1975] 1 All ER 787 and repeated by the Deputy High Court Judge in Hirose Electrical.. I consider that this (entirely honest) tendency to exaggerate existed here, to a greater or lesser extent, in relation to the oral evidence of the majority of the claimants. It was, from a practical point of view, inevitable: one man's persistent bad odour would be his neighbour's transitory smell, here one minute and gone the next, and in giving oral evidence, the tendency to exaggerate was inevitable. Accordingly this exaggeration (not deliberate but not insignificant) has to be borne in mind in any consideration of the written and oral evidence of the claimants.
  632. At paragraphs 1-3 of their closing submissions, Biffa purported to distinguish between the contemporaneous complaints (which they say they have always accepted) and the claims now advanced, which they do not accept as an accurate or reliable account of material events, and were exaggerated. For the reasons explained above, I accept there has been exaggeration, but I find that this was broadly the inevitable exaggeration that claims of this sort might engender, and, save possibly in relation to 'background odour', explained above, was not the deliberate sort of untruth that Biffa spent so long trying to establish. Given that Biffa say that they accept the accuracy of the complaint records, and given that it was overwhelmingly likely that the court would prefer those records to the oral evidence of the claimants (if different), it remains difficult to see how or why it was necessary for almost every claimant to be so extensively cross-examined.
  633. I2: Category 1

  634. Twelve of the claimants made no contemporaneous complaint about the odour at any time during the five years with which I am concerned, and had no other record of any particular odour incident. Those claimants are Mrs Barbara Brown, Mr John Trim, Mr Thomas Hewitt, Mr Mark Lethbridge, Mr Paul Southcombe, Mr Graham Potter, Ms Joan Bevan, Mrs Janine Ward, Mrs Angela Daniels, Mr Billy Hughes, Mr Peter Holmes, and Mr David Arnold.
  635. Although I find that these 12 claimants noticed some odour from time to time, as recorded in their witness statements and in their oral evidence, I am also in no doubt that those odour emissions were infrequent, of low intensity, and not such as to cause them to consider that what was happening was beyond the ordinary give and take of modern life. I repeat my conclusion that, had they considered that the odour emissions were more frequent or more intense than was reasonable, they would either have complained to the EA, or would have made some other contemporaneous record of the event. Whatever an acceptable threshold or starting point might be, the experience of these 12 claimants was not such as to put the odour which they experienced beyond or outside that threshold or starting point. Their claims in nuisance therefore fail on the facts.
  636. These 12 claimants did fill in the ONT provided to them by Hugh James. Unhappily, those documents were demonstrated to be so unreliable that any case that depended substantially upon them was revealed to be no proper case at all: see paragraphs 402-407 above. Indeed, many of the claimants within Category 1 were particularly critical of their own ONTs. Thus:
  637. a) Mr Hewitt had indicated in his ONT that the odour affected him on a daily basis for every relevant period. However, at paragraph 47 of his witness statement, he accepted that "it is unlikely that we were affected every single day. It did happen more often than not, particularly during the summer months, but on reflection, it was unlikely that it occurred every day during the claim period." By reference to the other evidence, I find that, for 'unlikely', it is necessary to read 'impossible'. In addition, I found that his reason for not making a single complaint – that he had made complaints about flies to another landfill contractor years before and it had not been dealt with – was implausible.

    b) Mr Lethbridge honestly admitted that he 'would not put any accuracy on the ONT' that he himself had compiled. In addition, he readily agreed that any odour was intermittent. He had chosen not to fill in the NRF.

    c) Mr Potter filled out an ONT which, although much less extreme than Mr Hewitt's table, still indicated regular moderate odour. In his witness statement, at paragraph 45, he indicated that the ONT was not reliable (although, on this occasion, that was because he felt that he had understated the frequency of the problem). He too had not filled in any other record and seemed to suggest that he had not been affected at all by any odour after 2007.

    d) Mr Arnold accepted that his ONT was wholly incorrect because, although he had only moved onto the Vicarage Estate in late 2005, he purported to fill in the ONT for the periods before that date, when he had no knowledge or experience of the conditions on the Estate at all. In the light of all the evidence about the leaflets, the Mercury campaign and the Hugh James' instructions, I am unable to accept his oral evidence that he was unaware of his ability to complain.

  638. There were other difficulties with the evidence of these 12 claimants. For example:
  639. a) Mrs Brown recognised in cross-examination that any experience of odour was episodic and that long periods passed between episodes. She also confirmed that episodes were of variable duration and intensity and accepted that she was not motivated to fill in records or make complaints, although she was aware of the importance of the NRF, having attended the Hugh James meeting.

    b) Mr Trim did not accept that his ONT was exaggerated. However, he maintained, without any records at all, that he experienced daily severe nuisance between July 2004 and November 2007 of a severe nature between 2-3 hours each time, a stated experience which was so contrary to the contemporaneous records (including those from the EA and Biffa) that I am unable to accept it. His reasons for not making complaints or keeping records were implausible given his background as a professional quality manager.

    c) Mrs Bevan not only had no records but her ONT (to the extent that it can be relied on) indicated intermittent odour, with lengthy periods when there was no odour at all. Her evidence of loss of amenity was extremely limited, consisting principally of occasionally having to close windows and an occasional effect on the use of her garden.

    d) Mrs Ward had no records, despite the fact that she used trenchant terms both in her witness statement and her oral evidence to describe the odour. According to Hugh James, she had been sent an NRF but she claimed never to have seen it. She lived the furthest from the Westmill 2 site of any of the 30 claimants, so it was unsurprising that she was largely untroubled by the odour.

    e) Mrs Daniels' ONT was unreliable for a number of reasons, a suggestion made to her during cross-examination which she was unable substantially to counter. She made no complaints to the EA and, although she received an NRF, she did not complete it. She was also aware of the Clark/Hobbs leaflets and the reports in the local paper.

    f) Mr Hughes' ONT was modest, and demonstrated the intermittent nature of the odour. His oral evidence left the impression that the odour had had very little effect on his daily routine.

    g) Mr Holmes' ONT was plainly inaccurate because every odour episode that he recorded was said to have lasted all day, a position that was wholly contradicted by all the contemporaneous evidence referred to above. In addition, he was one of the many claimants who filled in his ONT by reference to an inflexible seasonal rota. This meant, amongst other things, that he claimed that his experience in 2009 was the same as in 2004, a position which, once again, was contradicted by the contemporaneous evidence.

    h) Mr Southcombe said that it was "difficult not to be emotional" about the odour, particularly as he had bought the house next to Mr Clark after the problems had first manifested themselves. He had spoken to both Mr Hobbs and Mr Clark about the problems but the general effect of his evidence was that the odour had little impact upon him or his family.

  640. I accept the general evidence from these 12 claimants that from time to time, there were odour emissions from Westmill 2, some of which affected their day to day lives. I also accept that there has been a degree of exaggeration in their written and oral evidence which I consider, at least for the most part, to be unconscious, or the product of the unhelpful form of the ONT.
  641. But it is clear that, over a period of five years, the events to which these claimants were referring were so sporadic and infrequent that - in the absence of a stated threshold and in the absence of any contemporaneous complaint or note at all - it is impossible to find that such events are actionable in common law nuisance, even if (which of course I do not accept) such claims were open to these claimants without negligence.
  642. Accordingly, for those reasons, the claims of these 12 claimants in Category 1 must be dismissed on the facts.
  643. I3: Category 2

  644. There are five claimants who are in a very similar position to the 12 claimants in Category 1, but who did make one or two complaints or had one or two notes of particular odour incidents. Those 5 claimants are Mrs Claire Lavender (formerly Cordell), Mr Paul Gannaway, Mrs Diane Andrews, Mr Peter Bester, and Mr Bruce Bowman.
  645. Of course, the fact that these claimants in Category 2 made one or two complaints, or had made a note of one or two odour incidents over the five year period, only confirms the non-exceptional nature of the odour incidents generally. For the reasons that I have given, even taking these claimants' records at face value, they get nowhere near to establishing a persistent or unreasonable level of odour emission such as would ground an action in nuisance. They get nowhere near an appropriate starting-point. In addition, for the reasons set out above, the fact that these five claimants had also completed an ONT makes no difference to the outcome.
  646. Turning to the individual claimants, the absence of a credible case in nuisance on the facts is only too apparent. In particular:
  647. a) Mrs Lavender lived at Wheatsheaf Drive. She made just two complaints to the EA, one in 2005 and one in 2006. She had no other contemporaneous note or record as to any other consequences of the odour. Two events deemed worthy of complaint in five years does not constitute a nuisance. In addition, I am bound to note that, in 2006, her solicitors had written, on her instructions, to say to prospective purchasers of her property that there had been no odour problems since 2006, and that 'anyone who suggested otherwise was simply seeking compensation'.

    b) Mr Gannaway lived at Rolleston Close on the Vicarage Estate until 28 July 2006. That was towards the end of what might be regarded as the peak time for odour emissions. He then moved to the Hawthorns, which was not only still on the Vicarage Estate, but was actually closer to the Westmill 2 site. It was a location he knew well, because his parents lived there and he had walked his dog around The Hawthorns regularly. The odour clearly did not put him off. This was consistent with his evidence, despite at least one denial in cross-examination, that he did not find the odour to be adversely affecting his day to day life. As to his records, he completed the NRF for just one month between May and June 2008, and then his principal complaint was flies, not odour. His ONT was as unreliable and as exaggerated as that of any claimant, and his assertion within it that the odour generally lasted all day was completely at odds with the contemporaneous material.

    c) Mrs Diane Andrews completed a general ONT which merely conformed to the seasonal pattern to which I have already referred. She made one complaint logged by the EA on 24 June 2005. She cannot, therefore, make out any case on the facts that her experience of odour was such as to take it outside the ordinary give and take. Indeed her oral evidence emphasised the intermittent nature of her experience of odour, and the improvement throughout 2007 and 2008. She knew that she could complain – apparently the EA number was on the door of the fridge – but she did not do so.

    d) Mr Peter Bester was in the same position as Mrs Andrews. He also made one complaint to the EA on 13 May 2008. That was principally about flies rather than odour. His ONT was unusually unreliable because the first two thirds of it were filled in by somebody else. Again it suggested odour events of a much greater duration than anything reflected in the contemporaneous material.

    e) Mr Bruce Bowman completed an NRF but it only contained two entries, for 27 and 30 June 2008, and in both cases the strength of odour was described as 'faint'. Beyond that, his only other record was the ONT, which contained at the bottom the very fair qualification that he was unable to comment on duration of odour because he was at work during the day, and that he had had to complete the table "from memory as no detailed documented evidence was recorded". His evidence in cross-examination did not support a case of nuisance, particularly in view of his admission that he was aware of the importance of complaining if he was troubled by the odour.

  648. Accordingly, my conclusions in relation to the five claimants in Category 2 are precisely the same as for the twelve claimants in Category 1. The threshold, whatever it might be, has not been crossed. Their claims for nuisance must also be dismissed on the facts.
  649. I4: Category 3

  650. Category 3 comprises six claimants who, in addition to the ONT, were able to rely on slightly more contemporaneous records than those in Category 2 but who, on a proper analysis of those records, cannot demonstrate a credible case in nuisance either. Those 6 claimants are Mr Alan Warman, Mrs Teresa Ripper, Mr Barry Woodbury, Mrs Debbie Richardson, Mr Stephen Aulton, and Mr Alan Julian.
  651. Mr Warman had been a local councillor. He made four complaints to the EA on 18/02/05, 05/06/06, 06/06/06 and 19/02/09. He also provided a witness statement, dated 16 February 2005, which was used as part of the EA prosecution. That statement was principally concerned with his passing on of complaints by other residents, and his own evidence as to smell was very limited. Unlike the vast majority of the claimants, Mr Warman was not a particularly impressive witness, who persisted in attempting to give evidence on matters of which he had no knowledge and for which there was no record at all.
  652. If one adds together the specific complaints identified in Mr Warman's witness statement of February 2005, and his four contemporaneous complaints, there are nine incidents in total. Over a five year period, I cannot find that nine incidents of odour emission are such as to amount to an actionable nuisance.
  653. In addition, in this particular instance, I accept Biffa's submission that Mr Warman was prone to make unsubstantiated allegations (as he did in his correspondence with Biffa in March/April 2005) and that, in consequence, his evidence as to the consequences of the odour was distorted by his emotional response. That can perhaps be best seen in his ONT, which referred to recurrent daily odour never less than more than once a week, which itself suggests at least 100 days a year. That was so far beyond his own complaint levels and the number of odour complaint days (referable to the contemporaneous material produced by the most assiduous claimants) that I am bound to give it no credence whatsoever.
  654. Mrs Teresa Ripper had only made one complaint to the EA on 9th August 2006. However, she had completed an NRF that ran between the 26th November 2007 and the 16th February 2009. During this period of fifteen months, she identified twenty-nine separate incidents. That was therefore an average of two a month. As a matter of frequency, therefore, that record does not demonstrate a nuisance, even for the specific period that it covered, because it does not pass the threshold of 52 a year that I have identified in paragraphs 446 above.
  655. Moreover, her NRF makes plain that a number of these events involved faint or moderate odour which, according to the NRF, had little or no effect on Mrs Ripper's activities. This suggests that the complaints in her NRF were included regardless of intensity, duration or transience, and were therefore properly subject to the threshold (of one odour complaint day a week) to which I have previously referred.
  656. In addition, Mrs Ripper's ONT was, like so many others, entirely unreliable, because, as she accepted, it was produced completely from memory. It said that the odour was severe except for certain months in the autumn and winter, with events at more than once a week until March 2008, and with a duration of all day. Again, that was simply not borne out by the contemporaneous material. I am in no doubt that Mrs Ripper suffered from a number of odour events, some of which were moderate or severe. But for the reasons that I have given, I do not accept that the duration, scale and regularity of those events meant that she crossed the appropriate threshold.
  657. Mr Barry Woodberry relied on two supporting statements. He also had a detailed NRF which ran from the 4 January 2008 to the 21 October 2009. Although he had no records for any other period, and had made no complaints to the EA at any time, the frequency of odour events recorded in the NRF might suggest a situation close to an acceptable threshold, albeit limited to that period of just under two years. In addition, the NRF entries were quite detailed.
  658. The unique problem with Mr Woodberry's NRF was that it was prepared after the events that were recorded on it. So, although it was not a contemporaneous record, it contained a level of detail – as to dates, times and consequences - that suggested that it was. How had this come about? Biffa's case was that the document was an invention, created to give credibility to his claim. Mr Woodberry denied that, but his alternative explanation was, on any view, extremely convoluted.
  659. According to Mr Woodberry, the NRF had been completed from diary and calendar records which he had retained. He said that he had subsequently sent those documents to Hugh James in Jiffy bags, and they had somehow been lost in the post. He also said that he had kept the post receipt for the documents in the glove compartment of his car, where he kept his expenses documents. He said that he had then accidentally lost that receipt too when the documents from the glove compartment were emptied onto his desk.
  660. It is unnecessary for me to set out the evidence about these rather curious happenings in any greater detail, but I am bound to note that Hugh James never told Biffa's solicitors that these diaries and calendars ever existed in the first place; they were not in Mr Woodberry's list of documents. In addition, after the alleged loss of the documents, Hugh James did not assert that they had been lost in the manner alleged by Mr Woodberry, or at all. Perhaps even more significantly, there was no mention whatsoever of these events in Mr Woodberry's original witness statement. His answers on all this in cross-examination (Transcript Day 6, pages 119-135) were, at the very least, unconvincing.
  661. Although Biffa raised a large number of points about the general credibility of the claimants, I consider that these criticisms were largely misplaced. This aspect of Mr Woodberry's evidence, however, is one exception to that general conclusion. I cannot accept the accuracy of his NRF, in circumstances where it had obviously been compiled after the events that it records, and where there is nothing, other than the convoluted and belated story of lost jiffy bags and a missing post receipt, to make good the accuracy of the document. The NRF is also contradicted by Mr Woodberry's ONT.
  662. For these specific reasons, I am unable to accept Mr Woodberry's claim on the facts. Even if I had been, that too would have been limited to the two years covered by the NRF, and not beyond: the absence of any complaints, and any other records, means that no other claim was even arguable.
  663. Mrs Debbie Richardson is another one of the claimants who moved from one part of the Vicarage Estate to another part – Wheatsheaf Drive – which was closer to the Westmill 2 site. That again suggested that the smell was not a major factor in her day to day life. She completed an NRF for the period April to July 2008 but the vast majority of the emissions that she recalls during that period were of what she described as 'a faint odour'. Her diaries, which related to 2007 and 2008 and 2009, identify odour incidents on ten occasions. It does not seem to me that odour events on ten occasions over a period of almost three years can be said to give rise to an actionable nuisance.
  664. I should also comment on Mrs Richardson's ONT, which was generally modest and, in my judgment, much more accurate than the vast majority of the ONTs presented in evidence in the case. Generally she identified entries at M/L (moderate or light) lasting for between 10 minutes to 1 hour, and occurring less than once a week. She said that L meant a background smell which was "not a big deal". In my judgment, this was a record that was much more in keeping with the contemporaneous material to which I have referred, and supported my conclusion that the appropriate threshold had not been crossed.
  665. Accordingly, although Mrs Richardson was an impressive witness, in view of the infrequency of the incidents she recorded, the faint nature of the odour, and the fact that she moved closer to Westmill 2 during the critical period, I cannot find that she suffered an actionable nuisance.
  666. Mr Stephen Aulton made two complaints to the EA and, on a calendar for 2008, he recorded a number of odour events, totalling 22 in all. However, when one considers this claim against a background of a five year claim period, it is plain that Mr Aulton's evidence does not get beyond the necessary starting point. The matters of which he complained were simply too infrequent to give rise to an actionable nuisance.
  667. In addition, it is worth noting that Mr Aulton rented a property at Dovedale until the summer of 2006, when he bought a neighbouring property. I accept Biffa's contention that that fact alone make it unlikely that Mr Aulton could have suffered any nuisance; if there had been a real problem with the odour, he would have either not renewed his tenancy in 2005 or, in 2006 at the latest, he would have left the Vicarage Estate, rather than buying a house there. He had previously suffered from a negative equity experience and told me that he was very conscious of getting his next house purchase right. In the light of that, I find that he would not have bought the property on the Vicarage Estate had he been experiencing an actionable nuisance there prior to purchase.
  668. Mr Alan Julian made two complaints to the EA in January and February 2009. He made four telephone calls to Ms Da Costa in the same period. He completed an NRF for March 2008 to August 2009 which contained references to 40 odour incidents, 20 in each year. Again, the evidence as to frequency during the 2008-2009 period was not, on its own, sufficient to make out a case for nuisance, given my finding as to the appropriate threshold of 52 complaint days a year. But just as importantly, at least 10 of the incidents to which he referred in the NRF described the odour as 'faint' or 'mild'. Other events had no effect on what he was doing: the statement that he "noticed [odour] when washing car and had to put up with it" was typical. In those circumstances it seems to me that Mr Julian's claim, which on any view could only have been made for 2008 and 2009, again fell the wrong side of the threshold or starting point.
  669. In summary, the claimants in Category 3 could identify, usually by reference to their NRFs, a period within the 5 years during which they had experienced odour events. Those records made plain that the events were being noted whenever there was odour, regardless of intensity, duration or locality. Such events, therefore, must be the subject of my one odour complaint day a week threshold, averaged out over the year. Once that analysis is done it can be seen that, even during the shorter periods for which a claim might have been made by the claimants in Category 3, the claims do not pass the appropriate threshold. Accordingly, as a matter of fact, these claims must also be dismissed.
  670. I5: Category 4

    I5.1 Introduction

  671. That leaves seven remaining claimants: Mrs Claire Chandler, Mr John Chambers, Mr Roger Hobbs, Mr Stewart Clark, Mr Derrick Barr, Mr Paul Packham and Mrs Julie Rimmer. If I was wrong as to the point of principle concerning reasonable user/give and take, then alone amongst the 30 lead claimants, they have arguable claims for nuisance. However, on analysis, I have concluded that (with two exceptions) these claims also fail to cross the threshold which I have identified as one odour event, regardless of intensity, duration and locality every week, averaged out over the course of a year.
  672. I analyse briefly the position relating to these seven claimants in Category 4 below. But I should say at the outset that it is perhaps no coincidence that these seven claimants are the only ones who have demonstrated even an arguable factual basis for a claim in nuisance. Mr Clark, Mr Hobbs, Mrs Rimmer, Mr Chambers all live on Wheatsheaf Drive or Greyfriars, which were the closest properties to the Westmill 2 site, and Mr Packham, Mr Barr and Mrs Chandler all live only slightly further away. It is perhaps inevitable, therefore, that they would be the most affected of the claimants. And it is also far from coincidental that these seven claimants featured, almost to the exclusion of any others, in the events, meetings and correspondence with Biffa set out in Section B above.
  673. I5.2 Mrs Claire Chandler

  674. Mrs Chandler lived in The Larches. She provided a statement to the EA, dated 8th February 2005, in support of their prosecution. The statement is graphic about the smell on the August bank holiday of 2004. Mrs Chandler said:
  675. "The smell was so bad it made me feel sick. I would describe the smell as a combination of rotting vegetables and meat, dirty wheelie bins and dustbin lorries. The smell is intense and clawing and it permeates throughout my house and garden."
  676. She and her husband made a total of 78 complaint calls to the EA between the period of 31 August 2004 and 14th February 2009. The details of those calls record a number of incidents where the smell was bad outside or in Mrs Chandler's house and where the incident had a direct affect on her activities. On occasion she was worried about letting her new baby go in the garden. "A foul putrid stench" is referred to in a number of those complaints.
  677. Mrs Chandler also made diary notes and, although these are limited to the period 2004-2005, they too can be graphic in the smell that they describe. So too are Mrs Chandler's manuscript NRF records which run from June 2008 to February 2009. She often used the word 'Yuck!'
  678. The breakdown for Mrs Chandler, calculated by reference to the EA log and her own records, demonstrates 5 odour complaint days for 2004; 24 for 2005; 9 for 2006; 19 for 2007; 27 for 2008; and 5 for 2009. On the application of the threshold of one such odour complaint day per week, or 52 events averaged over the year, Mrs Chandler's records do not demonstrate that she has crossed the necessary threshold.
  679. I must deal with the point about background odour to the extent that it affects Mrs Chandler's claim. As I have explained, my odour threshold takes no account of the intensity or duration of the odour event complained of, mainly because the records do not allow any such differentiation, and no such case was argued by the claimants. But Mrs Chandler's claim was advanced with the suggestion that she only complained when the odour was particularly bad and that she would not complain if "it only smelt a little bit". This developed during her evidence into the suggestion that background odour had not been the subject of her complaints.
  680. I consider that this suggestion was contradicted by Mrs Chandler's other evidence, such as when she admitted that, at least on occasion, she reported faint odour to the EA. Moreover, as with a number of other claimants, the suggestion of background odour had not arisen in her written statement, and she seemed to pick up on it in her cross-examination, possibly as a way of deflecting the suggestion of exaggeration and to enhance the status of her complaints to the EA. Whatever the explanation, I am in no doubt, for the reasons I have explained at paragraph 462 above, that her complaints/records were made whenever there was any odour, regardless of intensity, duration and locality.
  681. The frequency of her complaints also reduced markedly over time, even though I accept that Mrs Chandler continued to suffer intermittently from some odour emissions. On this point, it is worth noting that Mrs Chandler's ONT entries, certainly for 2006, 2007 and 2009, demonstrate that the odour experience had significantly reduced, typically to less than once a week, at most weekly, and with an intensity that was graded moderate. I accept Biffa's submission, at paragraph 93 of their closing submissions, that this overall record tallied with the EA reports for those years.
  682. In summary, therefore, the two peak years for complaints by Mrs Chandler were 2005 (24 odour complaint days) and 2008 (27 odour complaint days). I find that those complaints related to odour events regardless of intensity, duration and locality. The threshold that I have applied is one such odour complaint day occurring once a week on average over a year. Accordingly, even in those peak years, Mrs Chandler did not exceed that threshold.
  683. I5.3 Mr John Chambers

  684. Mr Chambers lived on Wheatsheaf Drive. Again, he experienced odour from the outset, from the August bank holiday of 2004 onwards. He made 49 complaint calls to the EA between 2nd August 2004 and 23rd August 2008, a period of four years. However, unlike Mrs Chandler, his evidence of odour events was almost exclusively related to the period between August 2004 and August 2006.
  685. The EA log of his complaints indicates the strong and 'awful' nature of the smell on occasion, and his frustration that the EA were not doing anything about it and not calling him back. In particular, he made a large number of complaints in August and September of 2004. In 2005, he made 23 complaint calls up to September 2005, with a number of references to the 'terrible' and 'disgusting' smell. He made 9 further complaint calls up to September 2006. Thereafter, there were many fewer calls with only 5 in 2007 and 5 in 2008. There were none in 2009.
  686. There are two particular features of Mr Chambers' case. First, although he made a large number of calls to the EA, he kept no contemporaneous records and did not complete an NRF, despite being issued with a pro-forma by Hugh James (although he again alleged that he had not received it). His only other record, namely the ONT, was completely inconsistent with his EA complaints and the other contemporaneous material.
  687. Secondly, Mr Chambers also attempted to say that he did not complain when the background odour was low. I cannot discount the possibility that he gave this explanation having heard Mrs Chandler give it earlier on Day 2 of the trial. Moreover, for the same reasons that I have rejected that case in relation to Mrs Chandler, I also reject it in relation to Mr Chambers. His complaint calls, particularly given the large number of calls in 2004, make clear beyond doubt that he was complaining about any odour.
  688. The worst year for Mr Chambers was 2005, where there was a total of 24 odour complaint days. That is well below the threshold of 52 that I have identified. Accordingly, Mr Chambers' figures do not get across that threshold. In reality, it was only a period for the 2 years between August 2004 and August 2006 that Mr Chambers came even close to establishing a claim.
  689. I5.4 Mr Roger Hobbs

  690. Mr Hobbs lived in Greyfriars. Although his records demonstrated an arguable claim in nuisance for the five year period between August 2004 and August 2009, I have concluded that, on analysis, and with one exception, his claims do not cross the necessary threshold.
  691. During that period, Mr Hobbs made 77 separate complaint calls to the EA, at an average of about 15 a year. When taking into account his other records, the odour complaint days for Mr Hobbs amounted to 15 in 2004, 64 in 2005, 13 in 2006, 8 in 2007, 15 in 2008, and 4 in 2009.
  692. It is a particular feature of Mr Hobbs' evidence that, other than for 2005, the frequency of his complaints gets nowhere near the threshold which I have identified of one odour complaint day, regardless of intensity, duration and locality, each week, averaged over a year. This is despite the fact that he was, in many ways, the most careful recorder of all. On the other hand, for 2005 at least, when Mr Hobbs identified 64 odour complaint days, the threshold of 52 days was passed.
  693. On occasion, the odours about which complaint was made by Mr Hobbs were described in graphic terms: on more than one occasion, the site was referred to as 'absolutely stinking'. But on other occasions, it was clear that the odour about which complaint was being made was faint and transient. Mr Hobbs agreed that the strategy that he had worked out with Mr Clark was to ensure that they reported all discernable odours, even slight or faint odour of short duration. Mr Hobbs accepted that expressly in cross-examination; the admission was unsurprising given that that strategy had been set out in writing at the time in their leaflets. The plan was to make 'as many calls as they possibly could' (see Mr Hobbs evidence on Day 3 at page 56).
  694. In addition to the statement that he provided to the EA on 18 February 2005, Mr Hobbs kept a detailed computerised diary recording the smell from the 10 October 2004 to the 23 June 2005. This is amongst the best evidence from anyone of the smell during that period. There were many references to the odour being 'really strong all day'. Of course, there were also lengthy periods where no smell was recorded at all, or where the odour was mild or of short duration.
  695. In addition, from February 2008 to October 2009 Mr Hobbs' NRF regularly described the strength of odour as very strong and rating the odour at 8, 9 or 10 under the EA scale. Other events were less significant.
  696. Mr Hobbs was challenged on numerous aspects of his evidence, but, in general, I found him to be a clear and careful witness. As a result of his detailed records and his oral evidence, I am in no doubt that, on the facts, he had an arguable claim in nuisance, but one which, for all but 2005, fell below the necessary threshold or starting point. However, for that one year, Mr Hobbs has demonstrated that the threshold was exceeded, because there were 64 odour complaint days, 12 more than the threshold that I have fixed. Accordingly I find that, but for the point of principle in Section G above, Mr Hobbs would have made out a claim in nuisance, limited to 2005 only.
  697. I5.5 Mr Stewart Clark

  698. Together with Mr Hobbs and Mr Barr, Mr Clark was one of the principal agitators behind these proceedings. It seems to me that, although there were some elements of his oral evidence which I found to be unsatisfactory, Mr Clark was entitled to take a dim view of Biffa, given his own personal experience of the difficulties in dealing with them.
  699. Mr Clark lived on Greyfriars. Between the 14 August 2004 and the 15 March 2007, Mr Clark made 96 separate complaint calls to the EA. Taking into account his contemporaneous records, Mr Clark's odour complaint days for the two relevant years, 2005 and 2006, were 56 and 22 respectively. Thus, Mr Clark's odour complaint days for 2005 were in excess of the 52 per year threshold to which I have previously referred.
  700. Mr Clark also provided a statement to the EA, dated the 18th February 2005, in connection with their prosecution. Both the statement and the complaint to the EA referred to the 'pungent smell of rotting rubbish' which got into the house, affected his quality of life, and regularly made him feel sick. Furthermore, as we have seen from Section B above, Mr Clark was closely involved in the dealings with Biffa, trying to sort out what he regarded as the unacceptable odour emissions.
  701. Mr Clark's ONT was at odds with his EA records. As was typical, the effect of his ONT was to exaggerate his claims. Mr Clark sought to justify that exaggeration by saying that he did not complain to the EA about slight odours. Again, I reject that evidence as implausible. It was contrary to his own advice to the other residents, as set out in the leaflets and explained by Mr Hobbs. It was also contrary to the advice given on Ware Online, to "report everything". In addition, the EA log itself demonstrates that not all of the complaints were of significant odour or of odour of lengthy duration. Indeed, in his cross-examination, Mr Clark appeared to accept the variable and highly localised nature of the odour emissions about which he complained.
  702. Mr Clark left his property at Greyfriars in June of 2007. I conclude that, on the basis of his records, but for the point of principle in Section G above, he would have made out a claim in nuisance, but limited to 2005 only.
  703. I5.6 Mr Derrick Barr

  704. Mr Barr was not the lead claimant by accident. Living in Dovedale, he lived as close as possible to the Westmill 2 site. The EA telephone log indicates that, between 26th July 2004 and 8th July 2009, Mr Barr made 204 separate complaints about the odour on site. It is clear from this log that he regularly suffered from odour emissions from the site and endeavoured to do all he could to resolve the problem. He too provided a statement to the EA in support of their prosecution, which was easily the most detailed of the statements that they obtained.
  705. Mr Barr also produced the most useful single document provided by any of the claimants in this case, namely his Odour log. This was a record, continuously updated, which Mr Barr kept on his computer at home. It repeatedly noted the 'stench' coming from Westmill 2, and the particular problems that this caused Mr Barr and his family. It ran to 32 closely typed pages. It represents clear evidence of odour emissions throughout the relevant period, that is to say the period in excess of five years from August 2004 to October 2009.
  706. Mr Barr was vigorously cross-examined on the basis that he was exaggerating his claim. In the light of the contemporaneous records, this was always unlikely to be a fruitful exercise. Mr Barr's computerised Odour log, and his entries on the Ware Online blog, make only too clear that Mr Barr's claim was, unlike so many, firmly rooted in reality.
  707. But there can also be no doubt that Mr Barr recorded and complained about any odour, of whatever strength, whenever he could get to the telephone. He accepted this in cross-examination (Day 4, pages 57-63) during a passage in which he also accepted that he complained about odour when it was transient (coming and going in waves rather than day long episodes), and when the odour was so highly localised that it was sometimes at the front but not the back of his house. This again was consistent with the policy that Mr Barr adopted on Ware Online, where he urged users to report any odour to the EA. Mr Barr accepted in his oral evidence that he had followed his own advice.
  708. Thus, I find that his belated suggestion that he had somehow neither reported nor recorded slight or background odour was not in his witness statement, was contrary to all the other evidence, and contrary to the advice that he himself had given. Furthermore, should there be any remaining doubt about it, I also find that Mr Barr's own diary recorded faint or slight odours. These were recorded as, for example, "1s", "2s" and "3s" on his 1-10 scale. He accepted that proposition when those instances were put to him in cross-examination. For all these reasons, I refute the suggestion that Mr Barr's odour complaint days excluded faint or background odours.
  709. On this basis, I am unable to say that Mr Barr has demonstrated that he crossed the necessary threshold. His highest numbers of odour complaint days were 35 in 2005, 36 in 2006, 47 in 2007, and 39 in 2008. I find that those were in respect of any odour, regardless of intensity, duration or location. They do not cross the once a week threshold that I have outlined. On the contrary, his records show that, although there was an odour problem, it was infrequent, often transient and localised and, although there were occasions when it was significant, or had a significant effect, those occasions were not frequent enough to ground a claim. Accordingly, Mr Barr's claim would fall to be dismissed on the facts in any event.
  710. I5.7 Mr Paul Packham

  711. Mr Packham lived at Greyfriars as well. His contemporaneous records were not quite in the same league as Mr Barr's, but compared to the majority of the other claimants, they were reasonably comprehensive. The EA log recorded 55 complaints between January 2005 and March 2009. In addition, Mr Packham's NRF ran from 9th April 2008 to February 2009.
  712. The highest number of odour complaint days recorded by Mr Packham was 15 in 2005 and 28 in 2008. Accordingly, Mr Packham does not cross the threshold that I have identified. Again, for the avoidance of doubt, the records show that Mr Packham's complaints were not limited to odours of particular intensity or duration. Mr Packham accepted that he was aware of the Hobbs/Clark strategy in which all complaints would be registered, regardless of the intensity or duration of the smell, and the actual record of the calls that he made to the EA also demonstrates a wide range of smells being recorded.
  713. I also accept Biffa's submission that, particularly in his NRF, Mr Packham may have had a tendency to exaggerate the effect on him (a complaint about not being able to use the garden first thing in the morning or late in the evening on a winter's night when he would not have done so anyway). But the principal difficulty for Mr Packham is that he has simply failed to demonstrate that the necessary threshold has been exceeded.
  714. I5.8 Mrs Julie Rimmer

  715. Mrs Julie Rimmer lives at Wheatsheaf Drive. The EA log shows that she made 63 complaints between 15th September 2004 and 24th August 2009, the five year period with which I am concerned. The complaints were succinct and often made clear the strong smell that affected her both during the day and occasionally at night. But they were not very frequent: the calls broke down into 4 in 2004; 15 in 2005; 10 in 2006; 11 in 2007; 19 in 2008; and 4 in 2009. Many of those calls were made on the same day. Taking into account her own records, the number of odour complaint days never exceeded 38 in 2008; indeed the next highest was 14 in 2009.
  716. It is right to note that Mrs Rimmer was at home with a new baby in the summer of 2004 and was therefore in a position to give very clear oral evidence about the early odour emissions. She became understandably frustrated when the EA calls went nowhere. She said, and I accept: "I was almost in tears some days". Later, she kept a rolling manuscript note of odour events starting in March 2008 and running through to November 2009. Unusually, this document identified a larger number of events in 2008 and 2009, which was contrary to the trend across the Estate, and which were not generally the subject of complaints to the EA.
  717. However, not all of Mrs Rimmer's complaints or contemporaneous records could be said to relate to odours of particular intensity or duration. On the contrary, there were some complaints which she accepted were of relatively minor matters. She accepted that she rang the EA "quite a lot" and that, in relation to the odour events, she complained "most times but not every time". She said she would not ring if there was "just a quick niff". Like many other witnesses, her ONT was inconsistent with her contemporaneous records.
  718. In the round, therefore, I conclude that Mrs Rimmer was unable to demonstrate that she had crossed the necessary threshold. The year with the highest number of odour complaint days, if account is taken of all Mrs Rimmer's contemporaneous material, was 38 in 2008. Even though that total included numerous references in her diaries which were not reflected in complaint calls to the EA, it was still less than the appropriate threshold that I have identified. On that basis, her claim has failed on the facts.
  719. I6: Summary

  720. Even if I was wrong about the point of principle dealt with in Section G above, I consider that the 23 claimants in Categories 1, 2 and 3 have failed to make out a claim for nuisance on the facts. Their evidence did not get anywhere near to a reasonable threshold or starting point for odour complaint days. Their claims are therefore dismissed on the facts.
  721. For the reasons set out in Section I5 above, I consider that, with two exceptions, the seven claimants in Category 4, although in possession of records of contemporaneous complaint that provided at least an arguable case on the facts, have not demonstrated that the appropriate threshold has been exceeded. I have fixed that threshold at one odour complaint day per week, on the express basis that the odour event about which complaint was made was not of any particular duration or intensity, and could have been a faint or transient odour. That is because the contemporaneous material - EA complaints and diaries/logs - recorded such odours as well as the more serious odour events, and often did not differentiate between the two.
  722. That threshold therefore translates into 52 odour complaint days, averaged out over each year. It seems to me that, in all the circumstances, that is a reasonable threshold. Applying that threshold to the claimants, it demonstrates that, save for Mr Hobbs and Mr Clark in 2005, the claims have not been shown to exceed the appropriate threshold. Thus, save for Mr Clark and Mr Hobbs' claims in 2005, all the other claims are dismissed on their facts. The claims made by Mr Hobbs and Mr Clark for 2005 fail, but on the point of law to which I have previously referred, and for no other reason.
  723. I should add this. It may be said that to accept a claim by one claimant (say, Mr Hobbs in 2005) and to refuse the claim by another claimant who lived close by (Mr Southcombe in the same year) is illogical and inconsistent. But that ignores two things. First, everyone's experience of the odour was inevitably different. A claimant who worked away from home suffered less than a claimant working in the home, and therefore suffered less of a nuisance; if the odour was only on weekdays, then they might not suffer a nuisance at all. Each individual claim has to be considered separately.
  724. Secondly, it was agreed that the odours here were transient, and could affect one property and not the next, or even the front of one and not the back. Again that suggests that individual experiences, even for those living close together, will or may be very different. So the fact that some claimants (who lived close to Westmill 2) may otherwise have been successful, whilst their neighbours would not have been, is, in my view, unexceptionable.
  725. I now turn to deal briefly with quantum. In view of the length of this Judgment already, my ruling that all these claims must fail in law, and my conclusion that all but two of the claims (limited to one year only) must fail on the facts too, I do not provide detailed reasons for my conclusions as to quantum.
  726. J QUANTUM

    J1 The Applicable Principles

  727. The House of Lords of Lords in Hunter made plain that damages in nuisance comprised compensation for injury to property. The court therefore had to endeavour to quantify the value of that injury caused to a claimant's proprietary interest in that property. Lord Hoffmann said at page 706:
  728. "In the case of a transitory nuisance, the capital value of the property will seldom reduce. But the owner or occupier is entitled to compensation for the diminution in the amenity value of the property during the period for which the nuisance the nuisance persisted. To some extent this involves placing a value on intangibles. But estate agents do this all the time."

    Similarly, Lord Hope said at page 724:

    "The effect on the interest in land will also provide the measure of his damages… the cost of repairs or other remedial work is of course recoverable, if the plaintiff has been required to incur that expenditure. Diminution in value of the plaintiff's interest, whether as owner or occupier, because the capital or letting value of the land has been affected, is another relevant head of damages. When the nuisance has resulted in a loss of amenity, the measure of damages must in principal be the same."
  729. In Dobson in the Court of Appeal, the court noted at paragraph 32 that Lord Hoffmann's approach "contemplated estate agents valuing the difference between the right to occupy a house without the nuisance and the right to occupy one with the nuisance, that is to say valuing the loss of "notional" rental value. This had to be undertaken, however, by reference to what they described as "the actual experience of the persons in occupation of the property during the relevant period." At paragraph 34 the Court of Appeal concluded that:
  730. "On ordinary principles, they must also be clear that a claimant must show that he has in truth suffered the loss of amenity before substantial damages can be awarded."

    J2 The Particular Problems in The Present Case

  731. The assessment of damages in the present case is a particularly difficult exercise. There are a number of reasons for that.
  732. First, it is common ground that the alleged nuisance had no effect on the theoretical rental values of the claimants' properties, and caused no capital diminution either. Secondly, there is very little material on which the experts, or the court, could calculate a loss of amenity in any meaningful way. This is not a case, and was not advanced as a case, in which even the seven claimants in Category 4 could recover anything other than general damages.
  733. Thirdly, the claimant's expert, Mr Dickenson purported to maintain figures that were unrealistically high. During his cross-examination, it became clear that his approach was fundamentally flawed for a number of reasons. I note in particular that:
  734. a) He had purported to undertake his own fact-finding exercise in order to underpin his figures. Mr Croxford's cross-examination quickly demonstrated that this was a partial and selective exercise which bore very little relationship to what had actually happened.

    b) He had assumed that every one of the 30 claimants had suffered 64 months of nuisance, an assumption that was wholly undermined by the evidence noted above, and which made his conclusions unreliable.

    c) In undertaking his calculations, he had relied on numerous elements of the report of Dr Paul Bond, who, following the abandonment of the case in negligence, was not called to give evidence on behalf of the claimants. Thus these important parts of Mr Dickenson's analysis were entirely unsupported.

    d) He had used groupings and percentages without explanation or justification, with the result that the figures produced by his analysis were meaningless. Thus Mr Southcombe, who never made a single complaint and did not have any contemporaneous records, had a claim which Mr Dickenson valued at £11,291, whilst Mr Barr, with his 200 complaints, had a claim which Mr Dickenson valued at £7,650.

  735. Mr Dickenson arrived at figures for the claimants which amounted to between 9% and 19% of the monthly rental value of the property concerned. In circumstances where there was no actual loss or effect, such high percentage figures were simply unjustified.
  736. Accordingly, for all these reasons, I conclude that I should place no reliance whatsoever on Mr Dickenson's analysis.
  737. However, there were also difficulties with the approach of Mr Beer, Biffa's quantum expert. His figures were lower, but they were calculated at daily rates of between £2 and £5. His approach appeared to be designed to encourage the court to make different awards of damages to different claimants, calculated by reference to each individual day on which an odour event occurred.
  738. Thus, if Mr Beer's approach was followed to its logical conclusion, the court would be required to make thousands of decisions in respect of each one of the 30 lead claimants. In order to undertake the exercise, the court would need to decide whether or not there had been an odour event on each day (5 years x 365 days = 1825 per claimant, and 1825 x 30 claimants = 54,750 separate decisions in this part of the case alone). Then, for each day where an event was proved, Mr Beer said that the court should go on to calculate the amount that might be due, by reference to a daily rate. That seems to me to be an unrealistically onerous task for the court to undertake in an assessment of general damages. Such an assessment should not be allowed to descend into such minute and metaphorical bean-counting.
  739. Furthermore, that approach ignores one of the principles that is emphasised in the reported cases, to the effect that, if nuisance is established, there will be an element of loss of amenity caused by the risk, as opposed to the actuality, of smell. That point has been made in a number of the cases, including Kennaway and Blackburn, where the judge said that "the very unpredictability of the onset of smells is of itself a detrimental factor."
  740. Finally, one other point needs to be made in relation to Mr Beer's approach, which again demonstrates its unrealistic nature. For the reasons that I have given in the previous sections of this Judgment, I have accepted Biffa's submission that this case, and cases like it, need to be decided by reference to some form of threshold or starting point, beyond which the experience can be demonstrated to be an actionable nuisance, but below which, by reference to the principles of reasonable user and give and take, it cannot. That threshold can only conveniently be calculated on an annual basis. Indeed, it was that very approach, by reference to the decision in Watson, that Biffa urged on me in order to arrive at an appropriate threshold. That is what I have done.
  741. But if there is a threshold calculated on an annual basis, then claims in excess of the threshold – and it would only be such claims that would fall to be evaluated by way of general damages – should not then be the subject of a different mathematical exercise requiring thousands of individual calculations. If the threshold can only conveniently be assessed on an annual basis, then the damages ought likewise to be calculated in such a way. Otherwise, a defendant would obtain the benefit of an annual threshold calculation, but then obtain the benefit of calculating damages, not by reference to the same annual threshold, but by reference to individual days when nuisance may have occurred. That seems to me to be inappropriate, and would give the defendant the best of both worlds.
  742. Accordingly, whilst I marginally preferred Mr Beer's overall approach to that of Mr Dickinson, I did not ultimately derive very much assistance from the experts' reports. I am not prepared to accept a method of calculation which involves calculating the loss, if any, on a daily basis. That seems to me to be inappropriate for a claim limited to general damages. At most, therefore, it seems to me that Mr Beer's figures can provide some form of reality check.
  743. J3 Analysis

  744. In my judgment, the general damages should be calculated on an annual basis. That would principally reflect the actual odour but also make allowance for the threat of odour. Thus if any of the claimants had made out a case for the full five years, they would recover a sum for each of those five years. A claimant who has made out a case for a lesser period would get a pro-rata figure.
  745. In my judgment, the right annual figure is one of £1,000 per year per household for each year when the threshold was exceeded. Thus, Mr Hobbs and Mr Clark would have recovered £1,000 each for the year 2005, the only year when the threshold was exceeded. No other damages would be due.
  746. The justification for the £1,000 per year is briefly as follows. First, it is closer to the totals that Mr Beer's approach would lead to, if the daily rates were grossed up to an annual amount. Secondly, it is broadly in line with the awards in some of the cases referred to above, such as £235 (in the early 1960's) in Halsey and the £3,000 general damages for almost four years nuisance in Milka.
  747. Thirdly, it is in line with the sorts of figures awarded for general damages for inconvenience and disruption in civil cases: see, by way of example only, Bayoumi v Protim Services Ltd [1996] 30 HLR 785 (£1,500) and Eiles v London Borough of Southwark [2006] EWHC 1411 (£1,000).
  748. It is half the annual amount of £2,000 awarded in Watson but that difference is amply justified because, in that case, the properties affected were of considerably higher value than those in this case, and therefore the notional loss of rent would have been much higher too. In addition, I consider that the nuisance in Watson was more significant and caused more harm than the nuisance - if that is what it was - in the present case.
  749. Accordingly, for the reasons that I have explained, it seems to me that the right assessment for damages in this case would have been £1,000 a year for each year when the threshold was exceeded.
  750. K GENERAL OBSERVATIONS

    K1 The Claimants' Position

  751. I understand that the claimants will be aggrieved at the refusal of their claims, particularly those seven claimants referred to in Sections I5 above who had an arguable claim for nuisance on the facts, even though they were not able to demonstrate (save in two specific cases) that the appropriate threshold had been exceeded. Although not strictly necessary as part of the Judgment process, it might be helpful to set out my views as to how the unsatisfactory situation at the Vicarage Estate came about, and what might be done in the future to prevent any repetition of the problems, either there or at the many other landfill sites up and down the country.
  752. The first and most obvious point to make is that, for those in the position of the claimants, making complaints and keeping contemporaneous records are vitally important, for three quite separate reasons. First, in my view, such records provide the only credible material on which a court can decide whether or not an actionable nuisance has taken place years in the past. In reality, it is impossible for a claimant to persuade a court that a particular condition or situation was intolerable, in circumstances where the absence of contemporaneous records make plain that the situation was indeed tolerated by the claimant, without a murmur of complaint.
  753. Secondly, it is only on the basis of such records that the court can form a view as to the appropriate threshold, beyond which an actionable nuisance might be said to have occurred. In this case, the importance of making complaints and keeping records was recognised at the time by Messrs Clark and Hobbs, which is why their leaflets, sometimes in block capitals, told the claimants to do just that. Despite their strictures, only a tiny handful did so, which strongly suggests that the vast majority of the Vicarage Estate residents were unconcerned by the largely transient odours from the site.
  754. The third advantage of contemporaneous records and, in particular, contemporaneous complaints, can be seen from the narrative in Section B above. There is no doubt that Biffa were concerned about the complaints generated by Westmill 2. Although this trial has not involved a consideration of the detailed activities on site, it does appear from the material with which I have been provided that Biffa endeavoured to take at least some action in order to try and deal with the high level of complaints. The correspondence and the meeting minutes are littered with references to new odour mitigation measures and other efforts to minimise odour. In addition, it is plain that, at least from time to time, Biffa regulated their activities on site to try and minimise odour. I have in mind in particular the various decisions to stop working at a high level in one particular cell, and to work instead at a low level in an adjacent cell.
  755. It seems clear to me that these additional steps were taken because of the volume and nature of the complaints that were being passed on to Biffa. The corollary of that is that the situation might have been much worse if the complaints that were made had not been pressed by Messrs Barr, Hobbs and the other lead claimants.
  756. Of course I quite accept that Mr Barr and Mr Hobbs, and the other five claimants in Category 4, will observe with some asperity that their complaining and note-taking has not ultimately availed them of a remedy. But, as I have endeavoured to explain in Section G, that is principally because their claims arose solely out of the activities on site which Biffa were permitted to undertake (and which were expected to generate some odour), but which involved no suggestion that Biffa were negligent or failed to use the best available techniques. For the reasons which I have set out, it makes no sense, either in law or in fact, to make Biffa liable for doing precisely what they are allowed to do by the EA, and therefore the State.
  757. Mr Barr, Mr Hobbs and the other five claimants in Category 4 have met an immovable obstacle. Through no fault of their own, and for what I have to assume were sound environmental reasons, the Westmill 2 site was chosen to take pre-treated waste which was inevitably more odorous than other waste. It was inherent in the granting of the original permit that a certain degree of odour would escape from the Westmill 2 site, a reality that might be said to have been confirmed by the relatively 'hands-off' policing by the EA. That inevitability had long been expressly recognised in both the EU Directives and the UK Legislation. Whilst I am sure that this is of no comfort to the claimants, it seems to me that the result – liability if in breach of the permit, which would necessitate negligence, but not otherwise – is a coherent result because it balances the competing rights and liabilities of the State, the operator, and the residents.
  758. Finally, I should say this about the claimants' position. Only a small handful of them, the seven claimants in Category 4, had any sort of prospect of success, and even then, with two very limited exceptions, they could not demonstrate that the threshold had been exceeded. These seven were the people who felt strongly about the odour; they were the people who had made complaints and galvanised the other residents. The claims of the vast majority of the claimants, those who had done little or nothing over the relevant period, were always likely to fail on the facts. Yet it has been the participation of this silent majority which has complicated and expanded these proceedings (which could otherwise have been dealt with in the County Court), to no obvious advantage, certainly not to the seven claimants who were in an entirely different position on the facts. The Group Litigation has, in the end, not been of any benefit to anyone at all except the lawyers.
  759. K2: Biffa's Position

  760. That is not to say that, on the facts of this case, I can or should give Biffa a clean bill of health. I make no adverse comment about their operations on site, first because that was not ultimately the subject matter of this trial and secondly because, on the limited material before me, the repeated refrain from the EA and others was that Westmill 2 was a well-run site. In addition, I have already referred to the fact that they took particular mitigation measures to try and meet the concerns of the residents.
  761. All of which makes it even more disappointing that Biffa adopted such a confrontational policy with the EA, particularly in the later stages of the period with which I am concerned. The point that they originally took in the Magistrates Court was never going to endear them to the residents, and they must have seen that it was an unmeritorious argument which the Divisional Court would endeavour to reject, as they did. Regrettably, the uncompromising strategy which Biffa adopted in the face of that prosecution had an effect, because no further prosecution was even contemplated until the issue as to the proper interpretation of condition 2.6.12 had been resolved.
  762. I am particularly troubled by Biffa's conduct after the conviction. They changed their approach almost overnight. No point was too trivial for them to argue about; no issue was too peripheral for it not to be the subject of a lengthy letter from Mr Savory. 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. Although I accept that there was a certain amount of liaison between Hugh James and the EA, and that at one stage an injunction had been threatened, I do not believe that these considerations justified Biffa's hostility.
  763. Moreover, that approach spilled over into the trial itself. Whilst, as I made plain during the hearing, I understood that Biffa were anxious to ensure that all matters of fact were properly explored, there were times when, in my view, the cross-examination of the individual claimants was unnecessarily hostile. It may be that Biffa wished to put down a marker for other claimants on other sites, but I am afraid that it left an unfortunate impression.
  764. Purely by way of example of Biffa's unnecessarily aggressive approach, both before and at the trial, I take one particular aspect of the evidence of Mr Savory. In his witness statement, at paragraph 188, he said this:
  765. "With the above statistics in mind, we have real concerns that a large number of individuals have simply signed up to this action in an attempt to leverage a quick pay out from Biffa and this behaviour is symptomatic of a 'compensation culture' within the UK as a whole. Biffa feels strongly that we should not be forced to make payments to individuals every time they are affected by lawful site operations."

    In his oral evidence, although given the opportunity to retract this (strictly inadmissible and plainly irrelevant) evidence of opinion, Mr Savory chose enthusiastically to endorse it.

  766. It is a little difficult to know where to begin in pointing out the sheer wrong-headedness of this statement in the context of this case. I find that the residents brought this claim because they were affected, at least from time to time, by odours from the Westmill 2 landfill site. As they repeatedly stated to Biffa, and as I find to be the case, for much of the time, they were not particularly interested in financial compensation; they were only interested in getting the odour to stop. The claimants were emphatically not part of any tabloid 'compensation culture'; they were merely seeking to assert what they considered to be their rights because nobody else, certainly not Biffa or the EA, seemed to pay more than lip service to them. And the reference to a 'quick payout' is fanciful; whatever else Biffa did or did not do in answer to the complaints from the residents of the Vicarage Estate, speed of action was not a feature.
  767. These and other comments by Mr Savory only confirmed my view that Biffa had, and retain, an unnecessarily aggressive attitude to anyone who threatens their commercial interests. Their senior management and Mr Savory in particular, are quite prepared to adopt a bullying attitude in order to get what they want. That approach underpinned the hostile cross-examination of many of the claimants, which significantly prolonged the trial.
  768. K3: The EA

  769. Inevitably, since they were so often the focus of Biffa's wrath, that brings me on to the EA. Although in some ways they tried to do their best to protect the interests of the residents of the Vicarage Estate, there can be no doubt that they were under huge pressure from a number of quarters. The relevant office was responsible for a number of different landfill sites and they had to try and adopt an easy working relationship with the representatives of Biffa with whom they were going to be dealing on a regular basis. The system depended on co-operation and when, following the replacement of Ms Richards by Mr Pynn, Biffa thought that they were being unfairly treated, they responded by placing intolerable pressure on the EA representatives. I have no doubt that that was at least one factor in the absence of any subsequent prosecution.
  770. The EA's principal concern must be the regulation of the activities in accordance with the permit. But, on the material before me, it does not appear that this was always at the forefront of the EA's consideration. When the complaints started to be made in increasing numbers, the EA were unable to respond decisively. In the end, they became not much more than a messenger, passing on the complaints from the residents to Biffa and hoping something might be done about it. Indeed, it seemed that the senior management in Biffa regarded the EA as nothing more than a form of complaints-handling organisation, working on their behalf. This seems to me to be a complete travesty of the EA's statutory role.
  771. I should also say that, in my view, better claims might have emerged had it not been for the rather pusillanimous attitude of the EA at the time. The minutes show that, at least at one point, they seemed to accept that Biffa were in breach of the permit on an almost daily basis (paragraph 103 above). If that was right, the EA should have been much more aggressive in its dealings with Biffa. A situation in which, on the one hand, Mr Barr made over 200 complaints, but where, on the other, Biffa were found to be in breach of the permit on just 4 occasions, and never again after February 2005, is profoundly unsatisfactory, and responsibility for that apparent discrepancy must rest, in large part, with the EA.
  772. I consider that the EA should have been much more forceful with Biffa. For example, they might have said that Biffa could only operate the site if, between April and September (when the bulk of the complaints were generated), they only worked at low levels. If that meant having more than one cell open at a time, then so be it. The EA should also have been approaching the odour problems in the technical and detailed way that Biffa's Mr Allum did, and should have made the same careful recommendations (see paragraphs 105-108 above). In my view, the EA should have been proactive in telling Biffa what they could – and what they could not – do, and should have threatened to rescind the permit if Biffa did not co-operate.
  773. Ultimately, of course, what is required in a situation like this is a proper amount of detailed co-operation between the regulator and the regulated. That co-operation, certainly after the belated conviction, was in very short supply. That led to ultimately futile exchanges of correspondence about particular smells on particular streets at particular times, which had occurred three months earlier, and which were of no benefit to anybody. Such sterile debate was certainly of no benefit to the residents of the Vicarage Estate. It is to be hoped that, in future, the EA and Biffa will be able to adopt a more co-operative working relationship and to try and bring the interests of those directly affected by odour, such as the residents of the Vicarage Estate, rather more sharply into focus.
  774. L CONCLUSIONS

  775. For the reasons set out in Section F above, I consider that Biffa do not have a defence of statutory authority to these nuisance claims.
  776. For the reasons set out in Section G above, I consider that, in all the circumstances, the permitted use of Westmill 2 as a landfill site meant that the carrying out of permitted activities of waste disposal, performed in accordance with the detailed terms of the permit and without negligence, amounted to a reasonable user of land. In those circumstances, whilst claims in nuisance that involved allegations of negligence against Biffa would have been open to the claimants, claims in nuisance alone were not. Since the claims which proceeded to trial were in nuisance alone, they were bound to fail.
  777. If I was wrong on that point of principle, for the reasons set out in Sections H and I above, the claimants' failure to identify a threshold or a starting position, and the absence of anything like comprehensive contemporaneous records and complaints, meant that, in any event, 23 out of the 30 claims were doomed to fail on the facts. Only seven claims, namely those recorded in Category 4, were arguable and even they, on analysis, failed the threshold test which I have adopted, with the exception of Mr Hobbs' and Mr Clark's claims for 2005 only.
  778. If any of the claimants in Category 4 had been able to recover general damages, these would have been limited to £1,000 per year (as explained in Section J above) for each year when the threshold was exceeded. So, but for the point of principle, the upshot of this case would have been that two claimants (Mr Clark and Mr Hobbs) out of 30 would have recovered for one year only, or £1,000 each. As it is, because of the point of principle, they recovered nothing.
  779. Accordingly, for the reasons set out in this Judgment, the 30 claims which were the subject of this first trial are dismissed. I will deal separately with all ancillary issues, including costs.

Note 1   This was a good idea in theory, although I suspect that, in reality, the 30 claimants are representative of the two extreme situations: the handful that regularly made complaints and contemporaneous notes, and the much larger number who did neither.    [Back]

Note 2   As set out at paragraph 192 of the claimants’ written opening    [Back]

Note 3   Mr Prisk had been due to give evidence at the trial, but asked to be excused on the grounds that he had become a junior minister in the Government and might be faced with a conflict of interest. Although it was unclear how his appointment could affect his ability to give evidence in accordance with his written statement, or why there could be a conflict of interest, it was in fact the case that his statement contained no material of any significance, and both sides acquiesced in his release.     [Back]

Note 4   For example, Ms Kang’s note of 4.9.06.    [Back]

Note 5   The validity of this approach was not in issue before me, so I express no concluded views about it. But at first sight, the DJ looks to be doing what the Divisional Court said should not happen, namely determining the issue – at least in the first instance - by reference solely to the EA’s evidence.    [Back]

Note 6   On the material before me, it appears that these threats were never followed up.    [Back]

Note 7   Car Fragments: the debate about whether this was good cover material or not echoed through some of the contemporaneous documents, but in the absence of a case in negligence, it is outside the scope of this Judgment.    [Back]

Note 8   Paragraph 103 above    [Back]

Note 9   Although concerned with the so-called ‘common enemy’ rule, the judgment of Laws LJ in Arscott v The Coal Authority [2004] EWCA (Civ) 892 is also in point. He described the rule as striking a proper balance ‘between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with’ and ‘between the interests of persons whose homes and property are affected and the interests of other people, such as customers and the general public’. The latter was a reference toMarcic. Laws LJ described that as a formulation which “engages the balance between private right and public interest.”    [Back]

Note 10   Paragraphs 114-115, and 132-133    [Back]

Note 11   Watson is one of two authorities on which the claimants originally relied heavily, only to argue later that they were of little or no relevance. “Unprincipled” is how the claimants now describeWatson. The other case isBlackburn, referred to in paragraphs 238-243 below, which went from being the claimants’ principal authority at the outset of this case, to being described as “wrong” by its end.    [Back]

Note 12   The same result, in an odour case, can be seen inHirose, dealt with at paragraphs 254-255 below.    [Back]

Note 13   Biffa argued that the decision in Dennis was explicable because the sheer volume and persistence of the aircraft noise exceeded what might be regarded as reasonable, rather than the mere fact that there was a noise nuisance. That certainly is the impression given by the judgment, although I think that the claimants are right when they say that nowhere is that point expressly made by Buckley J.    [Back]

Note 14   Cambridge Water    [Back]

Note 15   For completeness, I should add that, adopting Lord Bingham’s analysis inYL, I arrive at the same conclusion. There is no statutory intervention (the intervention by the EA is a different thing) and no state involvement (either as a matter of course or as a last resort) in making payment for waste tipping.    [Back]

Note 16   It is not thought that this first emergence of nuisance cases has any connection with the well-known exhortation in Henry IV, Part 2, Act IV, Scene II: “the first thing we do, let’s kill all the lawyers…”    [Back]

Note 17   See the Introductory Note to the permit, condition 2. 6.12 and the legislation at Section D above.    [Back]

Note 18   In this respect, Watson followed the earlier case ofKennaway, where the alleged nuisance was caused by the noise of racing boats. The court struck a balance and allowed 10 days of racing as an appropriate threshold, a reasonable user of land.    [Back]

Note 19   Although Biffa do not include Mr Packham in what they call the ‘Claimant Diarists’, in my view he made sufficient calls to the EA to be included within this leading group.    [Back]

Note 20   Although I can make no definitive findings regarding the other 120 odd households, it seems to me likely that, on this basis, their claims would also fail on the facts. If the claimants chose their best 15 for the trial, and only 7 had sufficient records even to argue that they had cleared the threshold point, it would appear to follow that none of the other claimants will have the necessary records so to do.    [Back]


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