1.  As a means of resolving environmental disputes, mediation can be shown to offer many really significant benefits to regulators, be they local authorities, the Environment Agency or central Government. These benefits are discussed in detail in our previous post on this blog, accessible here.

2.  The focus in litigation will be on identifying and quantifying the alleged environmental harm and then determining who bears responsibility for it. It is a retrospective exercise: looking backwards at what has happened, and who did what. Each side desires the clarity of a judgment on what happened, absolving them from fault - or establishing that the other party was at fault. 

2.  In a mediation the focus is much broader and potentially far more constructive. Though set against the backdrop of the same issues of environmental harm and legal responsibility, the overall perspective is fundamentally different. The objective of the mediation process (unlike litigation) is to resolve the dispute through a mutually agreeable solution. Such a process can, therefore, allow the parties to discuss and agree extraneous but associated issues that may not be relevant or admissible within court. Further, by ensuring that the process is confidential the parties can be liberated to compromise and think collaboratively. From everyone’s perspective, mediation is a more efficient way of using resources, to ensure they are directed to finding a solution and its implementation.

4.  By comparison, in a complicated environmental litigation, the disclosure process alone can take several months, with tens of thousands of documents (sometimes sifted from a much larger sample) having to be shared and considered by lay parties and their relevant experts alike. By the time litigation is complete, and a judgment is handed down, the perceived environmental harm that triggered the process may have taken place several years earlier. The remediation of the harm may by that stage be far more challenging because of the time that has passed. 

5.  The litigation may end with a judgment finding someone responsible or guilty, and yet by the time it is handed down, the person responsible for the harm may well have expended all their resources seeking to resist responsibility, with none left over to resolve the problem. In that scenario, the party who initiated the proceedings may themselves have incurred significant expense and yet find itself no closer to achieving its primary objective. Indeed, such litigation may not even end with finality, given the possibility of appeal and the potential for consequential litigation. 

6.  One of our recent cases concerned an odour abatement notice which our local authority client, Newcastle-under-Lyme Council (“NuLBC”) had issued in respect of a landfill called Walleys Quarry. Here mediation was belatedly but successfully employed by the parties as a positive, constructive and cost-effective means of resolving the dispute. 

7.  The original decision by NuLBC to issue an abatement notice followed an unprecedented number of complaints and claims of impacts on the health of residents living and working in the surrounding community as a consequence of hydrogen sulphide emissions emanating from the site. 

8.  The abatement notice also came in the wake of earlier judicial review proceedings (discussed on this blog here and here) brought by a local resident against the Environment Agency for failing to take steps to protect the human rights of her son who suffered respiratory problems associated with hydrogen sulphide emissions. This was ultimately addressed by the Court of Appeal in R (Richards) v Environment Agency [2022] EWCA Civ 26.

9.  The abatement notice was (as is commonplace) appealed on numerous grounds of appeal as set out in the Statutory Nuisance (Appeals) Regulations 1995. The hearing was listed for a four week trial, with lengthy and detailed directions providing for mutual disclosure and the exchange of factual and expert evidence. In addition to factual experts, the parties each intended to call expert witnesses on hydrology, odour and landfilling. Some 90,000 documents (sifted from a much larger sample) were exchanged following disclosure. Each party had instructed leading and junior counsel. There were three initial hearings to determine preliminary issues even before the trial commenced.

10.  The principal grounds of appeal, however, were that the notice was ‘not justified’, that the Council had refused to accept reasonable alternative arrangements and that the landfill had adopted best practicable means (“BPM”) to prevent or counteract the effects of the nuisance. 

11.  The issues whether the notice was justified turned on whether or not there had not been a statutory nuisance. There were arguments around the quality of the evidence of odour, alternative potential sources of the odour, and whether the odour met the threshold for nuisance. The BPM arguments mostly turned on the efficacy of the system of gas containment, collection and utilisation employed by the landfill at the material time. The relevant time at which BPM is considered in an appeal of a statutory abatement notice is, of course, the date of the service of the abatement notice, meaning the inquiry is into the operator’s practices at an earlier point in time. An operator is not helped in establishing BPM by pointing to the improvements they have made post-notice. 

12.  The appeal settled, following a successful mediation process which was led by Lord Carnwath as mediator. The mediation finished less than three months from the date the parties agreed to mediate, and the mediation meeting itself took only two days. Those familiar with the field will know that his Lordship has adjudicated many of the leading cases on the statutory nuisance. The resulting consent order determining the appeal proceedings was subsequently confirmed by District Judge Grego. 

13.  As part of the public agreement achieved, the operator agreed to withdraw its appeal and to pay a significant sum in costs to the Council. It should be said that had the adversarial litigation continued until its conclusion, the costs arising from a four week trial would have been very significantly greater. Also, even assuming a successful outcome for the local authority, this would have been far less beneficial to the local community than the mediated compromise that was actually achieved. For example, a Judge may well have found the abatement notice to have been justified but he would have had no jurisdiction then to consider and resolve the issue of how the site might be managed in future to prevent the recurrence of the offending nuisance.

14.  It is to be hoped that the agreement reached in this particular case proves to be effective and sustainable and that any unpleasant emissions affecting the local community are minimised. So far the signs seem to be that it is working. Whether that ultimately proves to be the case or not, the process is a clear example to all parties (and particularly regulators against the backdrop of their statutory enforcement powers) of the many benefits of deploying mediation as a relatively quick and cost-effective tool for the resolution of environmental disputes.

Jeremy Phillips KC and Horatio Waller are barristers at Francis Taylor building and acted for NuLBC in this matter.