The Site’s activities are principally regulated through a planning permission issued by Staffordshire County Council (SCC) as the Waste Planning Authority (WPA), and through an environmental permit issued by the Environment Agency. NuLBC however is responsible for investigating complaints of nuisance under the Environmental Protection Act 1990. The decision to issue an abatement notice followed an unprecedented number of odour complaints and the impacts on the health of residents living and working in the surrounding community from hydrogen sulphide emissions. It came in the wake of earlier judicial review proceedings 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: R (Richards) v Environment Agency [2022] EWCA Civ 26.

The abatement notice was appealed on numerous grounds of appeal pursuant to the Statutory Nuisance (Appeals) Regulations 1995. The principal grounds of appeal were that the notice was not justified, in other words there had not been a statutory nuisance, that the Council had refused to accept reasonable alternative arrangements and that the landfill had adopted best practicable means to prevent or counteract the effects of the nuisance. The hearing was listed for a four week trial, with directions providing for 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.

The operator’s appeal was ultimately withdrawn following a successful mediation process, overseen by Lord Carnwath as mediator. Those with familiarity with the subject will know that Lord Carnwath has adjudicated many of the leading cases on the statutory nuisance. A consent order was subsequently confirmed by District Judge Grego.

Jeremy Phillips KC and Horatio Waller acted for Newcastle Under Lyme Borough Council.