IN THE COURT OF APPEAL

BETWEEN:

BAGGINS AND OTHERS

APPELLANTS

-and-

ORC LIMITED

RESPONDENT

________________________________________________________________________________ SKELETON ARGUMENT OF THE RESPONDENT ________________________________________________________________________________

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. ORC maintains that:

aaaaaaaa (a) An Environmental Permit constitutes an absolute defence to a private law aaaaaaaaaaa

xxxxxxxxxx action in nuisance; x (b) The judge was correct in holding that the level of one complaint perxxxx xxxxxxXXX

xxxxxxxxxxxweek did not constitute a nuisance.

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

- Gillingham BC v Medway (Chatham) Dock Co Ltd [1992] 3 All ER 923. - Coventry Promotions v Lawrence [2012] EWCA Civ 26. - Hirose Electrical Ltd v. Peak Ingredients Ltd [2011] Env LR 34. - Ratio Juris (2012), Volume 25, Issue 3, page 281: Presumptions in Legal Argumentation

ISSUE #1: THE ENVIRONMENTAL PERMIT

7. The Respondent submits that an Environmental Permit provides an absolute defence to a private nuisance action if the activity authorised by the Permit became a part of the localitys character.

THE LAW

8. An Analogy between planning permissions and Environmental Permits is appropriate, for both instruments authorise a certain development, or specify the use of land in a certain manner.

9. The case of Gillingham demonstrates the operation of a planning decision which alters the character of a neighbourhood, thus allowing certain activities to proceed without action, as long as those activities remain in accordance with the terms of the decision.

10. This principle is summed up by Buckley J. at p.359 F:

However, a planning authority can,

through its development plans and decisions, alter the character of a neighbourhood. That may have the effect of rendering innocent activities which prior to the change would have been an actionable nuisance.

11. In Gillingham, planning permission was granted with respect to a port which had previously been used as a naval dock. The port was henceforth to be used by a private company for commercial purposes. Thus, authority was given for the use of land in a specific way which would otherwise have constituted an actionable nuisance.

12. A similar approach was adopted in Coventry Promotions, where Jackson LJ held that the implementation of planning permissions and a Certificate of Lawful Use succeeded in changing

the nature of a locality. The planning permissions specified the time and days on which racing could take place.

13. Therefore, noise characteristics which occurred as a result of compliance with, and implementation of, planning permission and a certificate became part of the localitys character.

APPLYING THE LAW TO THE FACTS

14. The landfill site in the instant case was in use prior to its acquisition by ORC. It is submitted that the Permit, with its detailed pre-treatment conditions inserted to reduce smell by their implementation, changed the odour characteristics of the Shireville locality.

15. The decision by Northfolk D.C. in 2005 (to permit ORCs use of the landfill site) had an inevitable impact on the standard of acceptable odour which may be emitted. Therefore,

applying the Gillingham principle in accordance with Coventry Promotions, the characteristics of the Shireville locality were altered to reflect the conditions of the Permit.

16. It is submitted that ORCs compliance with the terms of its Permit thus resulted in an inevitable nuisance, which was licensed by statutory authority.

ISSUE #2: THE COMPLAINTS THRESHOLD

17. The Respondent submits that the findings of the Environmental Health Officer gave rise to a

presumption of no nuisance which ORC was reasonably entitled to rely on.

THE LAW

18. Per Hirose Electrical, a finding of no statutory nuisance by an Environmental Health Officer is

a relevant indicator that comfort and convenience levels are likely to be reasonable. Quoting Mummery LJ:

19. The activities ... were carried on without objection or intervention on environmental or health

and safety grounds by the relevant statutory authorities. While those matters are obviously not conclusive against the existence of a private nuisance, they are relevant indicators of the levels of discomfort and inconvenience caused by the smell. (para 40)

20. Although His Lordship stopped short of recognising a presumption, this is the natural and

logical inference to draw from his words. His Lordship further commented that the trial court is entitled to make an objective assessment of the overall situation, and this assessment may include giving judgment on relativistic issues:

21. It is for the trial court to make its assessment of the overall situation by applying an objective

standard to the facts found on the evidence before it. [...] Judgment on a relativistic issue, such as whether a particular activity amounts to a nuisance, is not wrong simply because, if this court had tried the case, it would not have made the same overall assessment. (para 2)

22. It is submitted that in the instant case, the trial judge was entitled to make an objective, overall

assessment at the outset, based on independent evidence available to the court. The judge thus viewed the level of complaints at Shireville as a relativistic issue.

23. As to the question of when a trial judge is wrong, His Lordship stated: Wrong in this context

means that the first instance assessment is flawed by a misinterpretation of the applicable law, or by a misapplication of the law to the ascertained facts, or if, for some other reason, it is obviously unsupportable. (para 2)

24. In the instant case, the applicable law was neither misinterpreted nor misapplied. In fact, the

situation was unprecedented, thus giving the judge some freedom to act sua sponte.
5

25. Per Wigmore on Evidence (Ratio Juris), a presumption is a rule of law laid down by a judge,

which attaches to an evidentiary fact certain procedural consequences as to the production of evidence by the opponent.

APPLYING THE LAW TO THE FACTS

26. The conclusions of the Environmental Health Officer constituted an evidentiary fact from which

an inference may be drawn; namely, comfort and convenience levels were reasonable.

27. The judge was entitled to draw this inference because of the courts overriding objective to save

expense and allot resources. Indeed, public funds had already been expended by the Council.

28. A starting presumption of no nuisance had thus arisen on the facts. This presumption might

easily have been rebutted by evidence of a certain number of complaints lodged within a week.

29. The judge did not specify what the exact number should be, but clearly, the judge felt that one

complaint per week, representing only 2% of Shireville, was insufficient to dispute the Officers findings and rebut the presumption.

CONCLUSION

It is the Respondents submission that:

aaaaaaaa (a) The activity authorised by the Permit became a part of the localitys character;

(b) One complaint per week was insufficient to rebut the presumption of no nuisance.