Nuisance, compliance with environmental permits and the requirement for negligence

The role of negligence and strict liability in environmental nuisance actions has been the subject of debate for some time now(1), with cases such as Cambridge Water [1994] 2 AC 264, Transco [2003] UKHL 61; [2004] 2 AC 1 and Dobson [2007] EWHC 2021 (TCC); [2008] 2 All ER 362 suggesting that strict liability is not appropriate for certain environmental nuisance claims, notably where the defendant is under a statutory duty to operate. The decision in Derrick Barr & Ors v Biffa Waste Services Ltd (No 3) [2011] EWHC 1003 (TCC) is important as it establishes that a claim in nuisance made against a site which operates in compliance with an environmental permit requires evidence of negligence to succeed. The rationale for the court’s conclusion was that the law of nuisance should “march in step”(2) with the relevant environmental legislation and that the law of private nuisance should not make defendants liable for an activity unless liability would also arise under the extensive volume of EU and UK environmental and planning legislation. This case note discusses the potential impact of the court’s findings and considers whether nuisance remains a viable remedy for claimants in relation to permitted sites.