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7/28/2019 UKELA Junior Moot Appellant Skeleton

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IN THE COURT OF APPEAL

BETWEEN:

BAGGINS AND OTHERS APPELLANTS

-and-

ORC LIMITED RESPONDENT

________________________________________________________________________________

SKELETON ARGUMENT OF THE APPELLANTS________________________________________________________________________________

INTRODUCTION

1. This is an appeal against the first-instance decision in a private nuisance action. Baggins and

others (the Residents) allege that the smell emanating from the landfill site of ORC Limited

(ORC) unduly interferes with their comfort and convenience.

2. The Residents contend that the trial judge erred in law as follows:

a.) An Environmental Permit is not an absolute defence to a private law action in nuisance;

b.) The judge was wrong in holding that the level of one complaint per week did not constitute

a nuisance.

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FACTUAL BACKGROUND

3. The Residents began to lodge complaints during the summer of 2010. This coincided with the

time when Dragonfly, a sub-contractor in charge of waste pre-treatment, encountered financial

difficulties and started using chemicals which were not in accordance with required standards.

4. The complaints resulted in an Environmental Health Officer being dispatched to investigate on

several occasions, but on no occasion did the Officer conclude that a statutory nuisance existed.

FIRST-INSTANCE DECISION

5. The Residents argued that ORCs permit should not afford an absolute defence, and in any

event, ORC had been negligent due to the use of sub-standard chemicals.

6. ORC contended that it had statutory authority for its landfilling activities, but at any rate, its

activities were in accordance with a Permit and thus constituted reasonable user of the land.

AUTHORITIES

A. An Environmental Permit is not an absolute defence to a private law action in nuisance :-

Barr & Ors v Biffa Waste Services Ltd [2012] EWCA Civ 312.

Wheeler and another v. J.J. Saunders Ltd. and another [Ch. 1989 W. No. 781].

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i.) Environmental Permits cannot trigger the defence of express or implied statutory

authority;

ii.) If an Environmental Permit should somehow alter the character of a locality, it does not

follow that resulting nuisances, even if inevitable, are to be deemed as authorised.

B. The Judge was wrong in holding that the level of one complaint per week did not constitute

nuisance :-

Halsey v Esso Petrolem Co. Ltd [1961] 1 WLR.

Barr & Ors v Biffa Waste Services Ltd [2012] EWCA Civ 312.

ISSUE #1: THE ENVIRONMENTAL PERMIT

THE LAW

i.) Statutory Authority

7. Parliament may licence a nuisance in certain, very specific circumstances, and create a limited

immunity for the tortfeasor. However, the exercise of delegated powers does not normally

allow for the body exercising those powers to grant such immunity.

Per Staughton LJ at p.28 B:

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.

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8. The situation is similar with respect to Environmental Permits, whose purpose is merely to

regulate the means by which certain waste disposal activities are carried out.

Carnwath LJ (as he then was) inBarrremarked at para. 46:

Short of express or implied statutory authority to commit a nuisance (rule (v) above), there is no

basis, in principle or authority, for using such a statutory scheme to cut down private law rights.

9. The lack of such statutory immunity, having regard to Carnwath LJs examination of the

statutory framework inBarrat para 106, results in the Permit being unable to confer absolute

immunity upon ORC.

ii.) Character of the Neighbourhood and the Terms of the Permit

10. In Wheeler, the Court accepted that planning permission may alter the general character of a

locality (see. e.g. p.30 para D). Nevertheless, such alteration does not necessarily mean that an

inevitable nuisance will be deemed as authorised.

11. In the context of Environmental Permits, the situation must be viewed in similar vein, for even

if a Permit were to alter the character of a locality, compliance with the conditions of that Permit

does not mean that user must be considered reasonable.

Per Carnwath LJ inBarrat para 76:

An activity which is conducted in contravention of planning or environmental controls is unlikely

to be reasonable. But the converse does not follow. Sticking to the rules is an aspect of good

neighbourliness, but it is far from the whole story - in law as in life.

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APPLYING THE LAW TO THE FACTS

12. Application of these principles in the instant case means that the Permit cannot constitute

statutory licence to commit nuisance. Moreover, even if the Permit had an altering effect on the

character of the Shireville locality, compliance with the Permits terms would not mean that

ORC benefits from statutory immunity.

ISSUE #2: THE COMPLAINTS THRESHOLD

THE LAW

13. It is well-established that common law nuisance does not deploy absolutes in deciding whether

the defendant to an action is liable. This is exemplified in Halsey, whereby in the context ofemission of unpleasant smells, the Court made clear that no threshold can be applied.

Per Veale J. at p.691:

On the other hand, nuisance by smell or noise is something to which no absolute standard can be

applied. It is always a question of degree whether the interference with comfort or convenience is

sufficiently serious to constitute a nuisance.

14. InBarr(whose factual matrix was deceptively similar to that of the instant appeal), Carnwath

LJ reviewed previous authorities in which thresholds had been adopted, but found no support at

all for adopting one in that case -- particularly as the nuisance concerned odour.

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Per Carnwath LJ. at Para 121:

There is as I have said no precedent for requiring claimants to specify a precise limit of acceptable

smell, and there is no accepted methodology for doing so. It is not surprising therefore that they

were unable to assist the judge in the way he wanted.

15. Consequently, the approach required in determining whether a nuisance exists is the well-

established standard of the reasonable man, as exemplified byHalsey.

APPLYING THE LAW TO THE FACTS

16. It is thus submitted that the standard to be applied is that of the reasonable man. Consequently,

the complaints which were received throughout the summer of 2010 and continued through

2011 demonstrate an interference with the comfort and convenience of the reasonable person

living in this particular locality, i.e. Shireville.

17. The Residents who live in this newly developed area are entitled to the enjoyment of their

properties, especially in light of the rigorous pre-treatment conditions attached to the Permit.

CONCLUSION

18. With regard to the Environmental Permit: It is submitted that in applying WheelerandBarr, a

Permit will not deprive third parties of their right to bring a claim for private nuisance; that is, a

Permit cannot serve as an absolute defence.

19. With regard to the complaints threshold: It is submitted that the authorities ofHalsey andBarr

demonstrate that the adoption of numeric thresholds in odour cases (to determine the existence

of a nuisance) is both arbitrary and erroneous.

20. For these reasons, the Residents ask that this appeal be allowed.

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