Can residents sue factories for dust, noise and odour emissions? This case shows the high bar for proving substantial interference in legal nuisance claims.
Background
In a significant case for industrial operators facing environmental nuisance claims, the High Court has considered claims brought by 159 households living near a major wood-processing facility in North Wales.
Kronospan Limited (Kronospan) has operated its particleboard and MDF factory in Chirk since 1973, processing approximately 1.5 million tonnes of timber annually. The claimants, living between 80 and several hundred metres from the site, complained of dust particles, odour and noise emissions over a six-year period from 2011 to 2017. The claims centred on loss of amenity rather than health concerns since no scientific evidence was submitted, with residents reporting dust deposits on cars, garden furniture and windowsills.
Legal principles and the decision
The law of private nuisance is predicated on the wrongful interference with the claimant’s enjoyment of rights over land (i.e. utility and amenity value of the claimant's land, and not as to the personal discomfort to the persons occupying it). The Court applied the key principles from Fearn v Tate Gallery UKSC 4, requiring claimants to establish that:
- the defendant's use of land caused a "substantial interference" with the ordinary use of the claimant's land, assessed objectively and by the standards of the ordinary person in the claimant's position; and
- the defendant's activity exceeded "ordinary use" of its own land, judged by reference to the locality's character.
The Court also considered Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312 in holding that environmental regulatory conditions may provide a starting point for determining where emissions cross the line into nuisance. Whilst regulatory compliance is not determinative, Kronospan's detailed environmental permits, and the absence of enforcement action against the company provided relevant context supporting its defence.
The availability and quality of monitoring data was critical. The Court preferred evidence based on comprehensive "dustdisc" monitoring from 2017-20, which showed substantially lower levels than limited and unreliable "frisbee" gauge data from 2016-17. The more reliable data showed few exceedances of recognised thresholds for likely complaints, contradicting the Claimants' subjective accounts.
The judgment also contains significant observations on expert evidence. It found that courts are "entitled to look particularly critically at the evidence of an expert when, as here, they materially depart from the initial common approach … in a significant and material manner." This scrutiny intensifies where initial results do not support the client's case and subsequent investigations produce more favourable conclusions.
The Judge was not persuaded by the Claimants' experts and felt "that their change of approach was not at least partially influenced by their desire to see whether or not their further analysis would benefit their clients' case".
The Court found that the Claimants had failed to establish substantial interference. Kronospan had recorded 475 dust complaints over the relevant six-year period. The Court felt, relative to the number of households in Chirk and days in the period, the number of complaints was a "vanishingly small percentage" of potential complaints. Whilst the Court accepted that the Claimant witnesses were generally honest, it concluded they had significantly exaggerated the frequency and impact of emissions, influenced by unfounded health concerns and adverse social media publicity.
In a particularly damning assessment, the Judge acknowledged that if he had accepted the Claimants' evidence as wholly reliable, he would have been satisfied that each had met the substantial interference requirement. However, he concluded: "I have found that the Claimants' evidence is, without exception, significantly exaggerated, although some more so than others."
Following a four-week trial, the Judge dismissed all claims, finding that residents had failed to establish the substantial interference required for actionable nuisance.
The case shows that in the face of reliable contemporaneous monitoring data and rigorous expert evidence, subjective complaints are unlikely to be sufficient to establish substantial interference. The Court's critical scrutiny of any changes to expert methodology serves as a stark warning: departing from agreed approaches to produce client-favourable results invites judicial scepticism.
