Consider whether the common law of nuisance still has a role to play in environmental regulation, in the light of the plethora of EU Directives on the subject. 29Apr2013

Before considering whether there remains a place in environmental regulation for the common law of nuisance it is first necessary to consider what is meant by “environmental regulation”. In essence environmental regulation is a system of legal and policy controls on activities which are liable to cause harm to the environment through any medium be it air, water or land and which operates to preserve species, habitats and natural formations of scientific interest. Woolf and Stanley note that “Pollution regulation is primarily concerned with the public regulation of private pollution”[1] an approach that is, necessarily by the structure of the EU, adopted through the plethora of EU Directives on the subject. However, the expansion of EU law into the environmental sphere is a comparatively recent development which was only formally enshrined in treaty law with the passage of the Single European Act 1986[2].

Since this formal recognition EU law has issued a bewildering array of instruments concerned with environmental regulation. For example, the Environment Agency’s website lists[3]20 different Directives covering a broad range of topics including, to list but a few, the Water Framework Directive[4], the Integrated Pollution Prevention and Control Directive[5] (‘IPPC Directive’) and the Waste Framework Directive[6]. Lying behind these framework Directives are numerous ‘daughter’ Directives providing further detailed environmental regulation. This small sample also neglects to mention the numerous other Directives that are implemented by other bodies such as Natural England and Local Planning Authorities.

The environmental regulation adopted by the EU encompasses a breadth of different approaches including, for example,  command and control regimes such as the IPPC Directive, monitoring and improvement regimes such as the Ambient Air Quality Directive[7] and product specification Directives such as the Emissions from Non-road Mobile Machinery Directive[8].

To take as an example, the IPPC Directive, as implemented through the Environmental Permitting Regulations 2010[9], prohibits the operation of a regulated facility without an environmental permit[10] and makes it an offense to fail to comply with, or to contravene, a condition of an environmental permit. In order to obtain an environmental permit for a regulated facility an operator must first apply to the Environment Agency. The Environment Agency will assess the application using their technical knowledge and expertise, and ensuring that the Best Available Techniques are used and will impose conditions intended to secure environmental protection. In certain circumstances the process will be open to consultation with both the public[11]and other member states[12]. Throughout this process the Environment Agency will have regard, where relevant to the Habitats Directive, and will consider the cumulative environmental impact of the applicant’s facility taking into account the existing environmental baseline.

Following the grant of an environmental permit the Environment Agency continue to regulate the facility. Conditions frequently require the submission of environmental monitoring data (such as emissions data) and continuous improvement of practices and processes. The Environment Agency can inspect the facility and investigate any complaints of non-compliance with permit conditions. They have extensive powers to vary conditions[13] and to take enforcement action[14].

The advantage of this ‘top down’ approach, typified by the IPPC Directive, is that enables regulation of the environment to be based on the application of scientific techniques, the Best Available Techniques and with regard to the impact on all environment mediums taking into account the current and proposed status of the particular environment of the regulated facility.

However, prior to the implementation of the modern, EU driven, sophisticated regimes of environmental regulation there existed within the UK a “fragmented, complex and unwieldy patchwork of separate controls.”[15] From this inadequate, or entirely absent regulation, the doctrine of common law nuisance developed with its fundamental principles being settled during the Victorian era.[16]

While it has been remarked that the law of nuisance is ‘immersed in uncertainty’[17] the common law of nuisance is broadly defined as the “an activity or state of affairs causing a substantial and unreasonable interference with a claimant’s land or his use or enjoyment of that land.[18]” Fundamentally, nuisance is a common law claim brought by a person with a proprietary interest[19] in land to remedy damage or a loss of amenity to their property caused by another.

The early development of the doctrine of nuisance is replete with examples of the tort being used to regulate environmental damage and includes successful claims brought for, among other things, damage to vegetation caused by the emission of fumes[20], vibration damage[21] and from excessive noise[22]. A successful claim in nuisance may result in an injunction requiring the defendant to abate the nuisance and/or for damages in compensation of harm suffered[23]. In this particular common law nuisance can be successfully used to prevent the continuation of environmental harm. 

However, there are some fundamental issues which restrict the value of common law nuisance as a system of environmental regulation. Firstly, it requires the environmental damage to occur to land owned by a person who objects to the environmental damage. A claim in nuisance cannot be pursued to remedy harm to particular species or habitat, irrespective of its inherent beauty or biodiversity value, unless that species or habitat is owned by the prospective claimant. Secondly, the owner of the land must be sufficiently motivated to incur the costs, risks and inconvenience of private litigation to remedy harm. In contrast to public interest judicial review claims, which are commonly brought to review compliance with EU law, protective costs orders are not available to nuisance claimants[24]. Thirdly, with respect to amenity claims, common law nuisance takes into account the character of the surrounding land in assessing what amounts to a substantial interference[25]. Thus a potential claimant in a less pristine environment will be required to show a greater interference than prospective claimant in a pristine environment. This limits the ability of nuisance to be of assistance in remediating areas that have suffered a greater degree of environmental damage.

However, the most limiting factor on the utility of common law nuisance as system of environmental regulation is its piecemeal nature. Concerned as it is with regulating disputes between landowners as and when they arise; it is simply not concerned with securing a high overall degree of environmental protection. Any environmental protection that follows is simply a consequence of the resolution of a dispute and is not an end in itself. Equally, common law nuisance is primarily concerned with picking up the pieces after the damage or interference has occurred. While theoretically possible to obtain a quia temet injunction to prevent a nuisance before its occurrence there are considerable practical difficulties in evidencing the imminence of the damage or interference and also demonstrating the necessity of an injunction in environmental cases.[26]

So does the common law of nuisance still have a role to play in environmental regulation? Mr Justice Coulson sitting in the High Court in his judgement in Barr v Biffa[27]thought not. The case concerned a landfill site, with the benefit of an environmental permit, which the claimants alleged caused an odour nuisance. Mr Justice Coulson was of the view that the grant of an environmental permit and the operation of a facility in compliance with its conditions renders the operator as a “reasonable user” of land and that it was inappropriate for the court to look behind this sophisticated regulatory control by also imposing common law liability. In his words; “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”. The effect of the judgement was to effectively grant statutory immunity to nuisance liability to those with operating in compliance with the conditions of an environmental permit.

However, the Court of Appeal[28] disagreed with Mr Justice Coulson on appeal. In rejecting the High Court’s development of the concept of “reasonable user” Carnwath LJ restored “reasonable user” to its historical position.

The interrelationship of common law nuisance and environmental permits, and their overlapping limitations, has been demonstrated by the High Court’s recent decision in the group litigation case Anslow v Norton Aluminium Ltd[29]. In finding for the claimants the damages the court awarded are likely to be in the region of £1.4 million[30]. However, in anticipation of an adverse finding and to avoid liability the company was put into administration and immediately thereafter re-opened under a new company[31]. It remains to be seen whether the Environment Agency will allow the transfer of the environmental permit.

So what role remains in environmental regulation for common law nuisance post Barr v Biffa? It is submitted that common law nuisance retains a residual value in remedying failures in the practical operation of the EU driven systems of environmental regulation so far as such failures have an impact on proprietary interests in land. However, the common law of nuisance is limited as a means of environmental regulation by its reactionary private law nature.

Jonathan Leary, Planning and Environmental Lawyer at Zyda Law

[1] Susan Woolf and Neil Stanley, Woolf and Stanley on Environmental, 5th Edt, Routledge, page 6 at 1.5

[2] Article 25

[4] 2000/60/EC

[5] 2008/1/EC

[6] 2000/98/EC

[7] 2008/50/EC

[8] 97/68/EC

[9] SI 2010/675

[10] Regulation 38 (1)

[11] Paragraph 6 Schedule 5 The Environmental Permitting Regulations 2010

[12] Paragraph 10 Schedule 5 The Environmental Permitting Regulations 2010

[13] Regulation 20 (1) The Environmental Permitting Regulations 2010

[14] Regulations 36 & 38 The Environmental Permitting Regulations 2010

[15]Ibid page 28 at 2.1

[16]Barr and others v Biffa Waste Services Limited  [2012] EWCA Civ 312 see Carnwath LJ at para 147

[17] Per Earl CJ Brand v Hammersmith and city Railway Company (1867) LR 2 QB  at 247

[18] Street on Torts, 11th Edition, LexisNexis Butterworths, page 387

[19]Hunter v Canary Wharf

[20]St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642; Manchester Corporation v Farnworth [1930] AC 171, HL

[21]Grosvenor Hotel v Hamilton [1894] 2 QB 836, CA

[22]Crump v Lambert (1867) L.R. 3 Eq 409

[23] See page 422 John Murphy, Street on Torts, 11th Edt, LexisNexis Butterworths

[24]R (Corner House Research_ v Secretary of State for Trade & Industry [2005] EWCA Civ 192

[25]Sturges v Bridgman (1879) LR 11 Ch D 852

[26]London Borough of Islington v Elliot [2012] EWCA Civ 56

[27] [2011] EWHC 1003

[28]Barr and Ors v Biffa Waste Services [2012] EWCA Civ 312

[29]Stephen Anslow & Ors v Norton Aluminium Ltd [2012] EWHC 2610 (QB)

[30] According to 39 Essex Street http://www.39essex.com/resources/news_listing.php?id=156 accessed on 12/01/2013

[31] http://www.expressandstar.com/news/2012/10/02/foundry-admits-going-bust-to-avoid-payouts/ accessed on 12/01/2013

Bibliography

Books

Susan Woolf and Neil Stanley, Woolf and Stanley on Environmental, 5th Edt, Routledge,

John Murphy, Street on Torts, 11th Edition, LexisNexis Butterworths

Articles

Antonia Layard, Human Rights in the Balance – Hatton and Marcic, Environmental Law Review, 6 Envtl. L. Rev. 196 2004

M. Purdue, The Human Rights Act 1998, Planning Law and Proportionality, Environmental Law Review, Envtl. L. Rev. 161 2004

Jean-Jacques Paradissis, Planning Delays, Human Rights and Damages, Environmental Law Review, 7 Envtl. L. Rev. 85 2005

Robert G Lee, Compliance with Environmental Permit as a Defence in Nuisance, Environmental Law Review, 14 Envtl. L. Rev. 219 2012

Francis McManus, Liability in the Law of Nuisance for Isolated Escapes from Land, Environmental Law Review, 3 Envtl. L. Rev. 186 2001