When a residential area abuts an industrial site (or construction site), conflict is a live possibility. But when does an interference to the ordinary use or enjoyment of a property become substantial enough to amount to a legal nuisance? That was the question recently decided in Andrews & Ors v Kronospan Ltd [2025] EWHC 2429 (TCC), an environmental group litigation claim. It was alleged that dust, noise and odours emanating from a timber processing factory in Chirk in North Wales constituted a nuisance. Noise, dust and traffic are also likely to arise from construction operations.
Decisions on nuisance are heavily fact-dependent, but the judgment nevertheless provides some useful insight as to how substantial the interference must be. Significant relevant factors in this case were that the claim did not include any evidence that the emissions were harmful to health, there was a long-established industrial use of the site, and the operation was governed by environmental regulations. The decision also highlights the need for reliable, independent expert evidence to support the claim.
Nuisance – the law
A key requirement of a common law claim of nuisance is that the defendant’s use of land must cause a 'substantial interference' with the 'ordinary use' of the claimant’s land. However, the defendant’s activity will not give rise to liability if the activity is itself no more than an ordinary use of the defendant’s own land. Having said that, even if the defendant is an ordinary user they are still obliged to take all reasonable and proper steps to ensure that no undue inconvenience is caused to neighbours. Ordinary use is judged having regard to the character of the locality and the established pattern of uses. The court has to decide whether the nature and degree of interference exceeds what an ordinary person would regard as acceptable. The fact that the defendant's activity is of public benefit is no defence to a nuisance claim.
Background
The defendant (Kronospan Limited) has, since the 1970s, operated a substantial wood-processing facility in a mixed industrial-residential area. The claimants are 159 local residents who reside at varying distances from the Kronospan factory. They, as a group, claimed that the operation of Kronospan’s factory had over a prolonged period emitted dust, noise and odour to such an extent and with such a degree of regularity and unpleasant consequences that it constituted a legal nuisance. In defence, Kronospan argued that while the operation of its factory was bound to have an occasional impact on those living nearby, its actual impact fell well below the level of intensity or continuity which amounted to a legal nuisance. Further, it contended that its factory operations formed part of the existing pattern of uses in Chirk; had been tightly regulated and conducted responsibly; and constituted an ordinary and a reasonable use of its site, which did not cause any substantial interference to the claimants.
It was directed that a stage-one trial should take place to hear the claims of 16 lead claimants in respect of the alleged nuisance occurring.
Judgment
The High Court rejected the claims of all 16 lead claimants and found in favour of Kronospan. Key points in the decision included:
- Substantial interference was not established. The judge concluded that the "nature, extent, impact and frequency" of the dust emissions suffered by the lead claimants was not sufficient to constitute a substantial interference with the enjoyment of their properties and therefore amount to a legal nuisance. Further, the odour or noise emissions came nowhere near amounting to a nuisance and, even if their impact was aggregated with the dust complaint, they would not together amount to a nuisance. The judge noted that the level of dust, odour, and noise was not enough to put people off from staying in, or moving into, the area.
- Ordinary user defence. Although not strictly necessary to make a finding on this point, the judge was not persuaded that the established pattern of uses in Chirk had developed to include the full range of Kronospan’s dust, odour or noise emitting activities so that it could argue that its ordinary user of the land extended to such activities. Had that defence been necessary and made out, the judge was satisfied that Kronospan had demonstrated compliance with its obligation to take all reasonable steps to ensure that any nuisance was kept to a reasonable minimum.
- Monitoring data and expert methodology: The judge held that the data relied upon by the claimants was "too variable, unreliable and time limited" for him to draw clear conclusions in relation to the dust emissions. No expert evidence was submitted to support the noise and odour claims. The judge preferred the dust monitoring data produced by Kronospan which he considered was more reliable and comprehensive, showing only a handful of occasions where the claimants' 'complaints likely' dust deposition threshold rate was exceeded. The judge was also critical of the claimants' experts for altering their methodology from the initial agreed common approach after initial results were not favourable to their clients' case. The judge was not persuaded that the change of approach was not at least partially influenced by the desire to see whether or not further analysis would benefit their clients’ case more than the existing analysis. This cut against the grain.
- Witness evidence. The judge concluded that most of the witnesses, sometimes consciously but more often unconsciously, exaggerated their evidence to support the claimants’ case or Kronospan’s case respectively. There was a spectrum of sensitivity of individual’s perceptions of dust, odour and noise but additional factors also influenced their evidence such as geographical location, economic ties to Kronospan as a major local employer and, perhaps most significantly, perceived safety issues.
The judge accepted that his decision was "close to the borderline". Had the dust emissions deposited on the claimants' cars, garden furniture and window sills been more substantial, or more frequent, such that that they left "a visible amount of wood dust" and would "make the average reasonable householder want to remove it as an unsightly blemish", then the judge considered that would be capable of amounting to a "substantial inference". However, he concluded that that "any reasonable householder, knowing that the Kronospan dust emissions presented no demonstrated health hazard, would not have regarded an occasional dust emission event as anything more than a modest irritant of life in Chirk, rather than one which had a significant deleterious impact."
What can we learn from the decision?
This case serves as a reminder of some important practical principles for parties in nuisance claims:
- Substantial interference with the ordinary use of the claimant’s land. The principal cause of the substantial interference must be the emissions from the defendant’s land. Substantial means that it exceeds a minimum level of seriousness to justify the court’s intervention. It is assessed objectively, judged by the standards of an ordinary or average person in the claimant’s position.
- Contemporaneous documents. Where factual witnesses are being asked to recall events going back over a long period and there is a stark divergence of views, reliable contemporaneous documents will be a good indicator of what actually happened at the time.
- Importance of robust data monitoring. Consistent and contemporaneous monitoring of data covering the entire period in question is likely to prove decisive.
- Objective and transparent expert methodology. Expert witness evidence should always clearly demonstrate the methodology adopted and any assumptions made. Where a change in approach is made, that expert must satisfy the court that it was appropriate to do so on a purely objective basis and that the results of the second analysis should be preferred to the results of the initial analysis undertaken on the basis of the initial approach.
- Locality. The character of the locality and established patterns of use are relevant to the issue of what is an "ordinary user".
- Regulatory compliance. Compliance with planning laws and environmental conditions is not an automatic defence for a claim brought in nuisance but will still be relevant. Environmental regulatory conditions can provide a starting point as to where the dividing line lies between something which is a tolerable interference and that which is a nuisance. Compliance can also demonstrate the reasonableness of the operations.
Each case will of course turn on its individual facts. However, in mixed-use areas with established industrial operations, the bar is set high for proving nuisance particularly where planning laws and environmental regulations have been complied with. In such cases, the local residents may have to learn to put up with an occasional interference.
