Environment update

Evidence of nuisance

Without strong and clear evidence of a nuisance, a claim in nuisance is unlikely to succeed, as the recent case of Hirose Electrical UK Ltd v Peak Ingredients Ltd [2011] EWCA Civ 987 clearly demonstrates.

The appellant, Hirose, occupied an adjacent industrial unit to the respondent, Peak Ingredients. The appellant's employees complained that curry and garlic odours produced by the respondent, which manufactured food additives and coatings, caused nausea, sore throats and breathing difficulties. The local authority investigated but did not find a statutory nuisance. After six years occupying the unit, the appellant relocated and brought a claim seeking an injunction and damages to compensate for leasing an alternative site.

The trial judge found that the degree of interference with the appellant's business and comfort of its employees was acceptable given that the location was a light industrial estate and not the 'high-class genteel business park' that the appellant had sought to portray. The judge also found an element of exaggeration in the evidence given by the appellant's employees and that, although there was a fairly strong, disagreeable odour in part of the appellant's premises from time to time, it was by no means daily or throughout the day. The judge took note of the fact that the respondent's employees had not complained and there had been long periods during the six years of occupation by the appellant when nothing was done about it. In short, the judge found that the evidence before him was insufficient to establish a nuisance.

Mummery LJ, giving the lead judgment, upheld the decision of the judge finding no error that would necessitate revisiting his findings. At trial, the issue had arisen that the problem was exacerbated, if not caused by, the party wall being inadequate in construction. The parties had not been able to come to an agreement to have it insulated. The appellant argued that the judge had erred in making an analogy to Southwark LBC v Mills [2001] 1 AC 1, in which it was held that ordinary, normal and reasonable use of residential premises by its occupier, without more, was not in itself a nuisance. The respondent asserted the question should have been asked as to whether it was possible for the respondent to operate its business reasonably and conveniently given the porous nature of the party wall. Mummery LJ dismissed the argument in that the state of the party wall had little impact on the critical question as to whether the smell was a material interference with the comfort of the appellant's employees, which the trial judge found it was not.

Although this case involved business premises rather than residential, and therefore the threshold for a serious interference with amenity would necessarily be higher, it nonetheless highlights the need for strong and clear evidence when bringing a nuisance claim. It also suggests that setting aside the parties' respective legal positions might have resulted in greater attention being paid to the practical solution of insulating the party wall, which could have avoided the claim being brought in the first place.

Procedural issues

In Austin & others v Miller Argent (South Wales) Ltd [2011] EWCA Civ 928, the Court of Appeal considered two procedural issues relating to a claim in nuisance: the granting of a group litigation order (GLO) and protective costs orders (PCOs).

The applicants were residents of Merthyr Tydfil, seeking to prevent noise and dust emissions from the respondent's opencast coal mining operations from interfering with the use and enjoyment of their homes. The 500+ proposed claimants applied for a GLO to proceed with the claim on a collective basis. The proposed claimants' lawyers acting on a conditional fee agreement had applied for after-the-event (ATE) insurance; the claimants' position being that if ATE was not forthcoming they would seek costs protection from the court. The application was dismissed by HHJ Jarman QC on the basis that there was uncertainty at the time of the GLO hearing as to whether the claimants could fund the potential adverse costs of the litigation, and that the consequence of this was that some proposed claimants would not proceed.

After the GLO hearing, the defendant claimed costs of £257,150 for the preliminary GLO application. The proposed claimants appealed the judge's order arguing, among other things, that the Aarhus Convention 1998 required the court to ensure that proceedings were not 'prohibitively expensive'. The claimants also sought a PCO for the appeal.

Lord Justice Jackson, delivering the leading judgment, noted that the making of a GLO commits both the parties and the court to the 'allocation of substantial resources' and that the court 'will not make a GLO before it is clear that there is a sufficient number of claimants, who seriously intend to proceed and whose claims raise common or related issues of fact and law'. That ATE insurance had not been obtained at the date of the GLO hearing and therefore adverse costs funding was not certain, coupled with the fact that no individual witness statements or claim forms that were before the trial judge were relevant to his conclusion that the application for a GLO was premature.

Jackson LJ noted that the defendant's costs were, on any estimation, surprisingly large in the context of resisting a preliminary application, but that this had been addressed by the defendant's concession immediately before the appeal that they would only seek costs on a pro-rata basis, only from adult claimants and only if a proposed claimant subsequently issued proceedings. A PCO in respect of the appeal was refused by Jackson LJ on the basis he did not consider that the costs liability for the appeal when considered per capita was not prohibitively expensive.

Practitioners who may have anticipated that the Court of Appeal would take the opportunity to decide the underlying issue as to whether a PCO could be made in the context of private litigation over environmental matters will be disappointed '“ Jackson LJ said the issue was 'academic' in the present case. It does give some helpful guidance on how to go about obtaining a GLO, although practitioners may also want to read Barr v Biffa [2011] EWHC 1003 for the comments there on whether a GLO is in fact justified.

The 'deposit' of waste

In Milton Keynes DC v Fuller [2011] EWHC 1967 Admin, a Divisional Court considered an appeal by way of a case stated by the council regarding the correct interpretation of the word 'deposit' under section 33(1)(a) of the Environmental Protection Act 1990.

The respondent was a farmer who found that waste materials had been deposited across a track leading from a road to a field of his crops. He rang the council to report the waste and to request that it be cleaned up. While waiting for the council to do so, he asked an employee to use a forklift to move the waste to the verge beside the road in order to gain access to the crops for spraying.

The council then laid an information in the magistrates' court alleging that the respondent and his employee had illegally deposited controlled waste or had knowingly committed controlled waste to be deposited without a waste management licence contrary to section 33(1)(a) EPA 1990.

The magistrates dismissed the inform-ation, finding that moving the waste did not amount to an offence since it had already been illegally deposited by someone else. The council argued that the movement of the waste amounted to a deposit because the respondent and his employees had exercised control over it and that there were good public policy reasons why 'movement' of the waste should come within the meaning of the word 'deposit' under the 1990 Act.

The appeal was dismissed by the Divisional Court, which referred to the case of Cozens v Brutus [1973] AC 854 where Lord Reid held that the meaning of an ordinary word of the English language is not a question of law. Aikens LJ stated that if the statutory context shows the word being used in an unusual way the court will determine in other words what the unusual sense is. But where, as in this case, the use of the word in the statute is not unusual and the conclusion reached by the magistrates was one plainly open to them on the facts, there was no place for the reviewing court to 'impose [its] own exegesis on the meaning of the word and then apply [its] meaning to the facts as found by the justices'.

The case is a good reminder of how a court will approach the interpretation of the wording of statutory provisions and will be cautious to 'read in' to plain English what amounts to legal argument.

Promptness in judicial review

In the July update (Solicitors Journal 155/29, 26 July 2011), I referred to R (U & Partners (East Anglia) Ltd) v Broads Authority [2011] EWHC 1824, in which Collins J declared the promptness requirement for judicial review challenges relying on EU law to be unlawful, meaning that a claim could not be refused relief for lack of promptness as long as it was brought within three months of the date of the decision in question.

The question as to whether this should apply to all environmental judicial reviews, even those that raise issues of domestic law only, did not arise in that case. But in R (on the application of Macrae) v Herefordshire Council (CO/9816/2010; not yet reported), David Elvin QC, sitting as a deputy High Court judge, refused permission and held that promptness remains a requirement for judicial review where the grounds do not raise issues of EU law. The judge also refused a PCO on the basis that a more liberal regime set by the Court of Appeal in R (Garner) v Elmbridge BC [2010] EWCA Civ 1006 did not apply as that was restricted to claims raising points of EU law.

Although the claimant has applied for permission to appeal both the refusal of permission for judicial review and the PCO, the case suggests a two-tier system where applicants bringing an environmental claim raising EU law points get the benefit of far more favourable procedural rules than those whose claims engage domestic law, albeit that they still rely on the Aarhus Convention. This increases the complexity of advising clients both bringing and defending claims, who may find it difficult to understand why one regime applies and not the other, regardless of the merits of the substantive issues. Given that the Court of Appeal has previously not encouraged the development of different principles in environmental and non-environmental claims in the interests of consistency (see for example Morgan & Baker v Hinton Organics [2009] EWCA Civ 107), it will be interesting to see the judicial response if permission is granted.