In August 2021 Newcastle under Lyme Council served a statutory odour Abatement Notice on the operator of the site following an unprecedented number of complaints by both local organisations (such as Keele University, the Fire Station and Royal Stoke University Hospital) and residents living and working in the surrounding community. Most claimed nuisance and impacts on their health as a consequence of the hydrogen sulphide emissions emanating from the site.

Legal Context

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 96,000 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.

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.

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. 

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 a potential inquiry by the magistrates’ court 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. 

Outcome

From a very early stage in the proceedings counsel for the local authority suggested that matters might be resolved with relatively little time and expense through the process of mediation. Initially sceptical, the operator eventually agreed and appropriate arrangements were made for a provisional 4-day mediation, with Lord Carnwath appointed as mediator. The appeal settled, with the mediation being completed less than three months from the date the parties agreed to mediate, and in the event lasting only two days. 

The resulting consent order determining the appeal proceedings was subsequently confirmed by District Judge Grego. 

As part of the public agreement achieved, the operator agreed to withdraw its appeal (so leaving the abatement notice in place and effective according to its terms) 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, that would have been far less beneficial to the local community than the mediated compromise that was actually achieved. Whilst a Judge may well have found the abatement notice to have been justified he would have had no jurisdiction to consider and resolve the issue of how the site might be managed in future to minimise the likelihood of a recurrence of the offending nuisance.

FTB Involvement

A KC and a junior member of Francis Taylor Building were instructed by Newcastle Under Lyme in this matter.