Nuisance claims: A recent decision highlights the key role of expert evidence
Background
The case of Andrews & Ors v Kronospan Limited [2025] EWHC 2429 (TCC) concerned Kronospan Limited’s operation of its factory located in Chirk, a small town to the south of Wrexham. The Claimants’ (a test group of residents of Chirk) claim was that the factory had emitted dust, noise and odour to such an extent that it constituted a legal nuisance.
Importantly, the claim did not concern any allegations of personal injury as a result of the emissions from the factory.
Kronospan’s defence was that the impact of its factory was below the level of intensity or continuity that would be necessary for the emissions to be a legal nuisance. Kronospan added that its factory operations: (1) formed part of the existing pattern of uses in the locality; (2) had been tightly regulated to mitigate any environmental impact; and (3) constituted an ordinary and reasonable user of the site. Finally, and as an alternative argument, Kronospan sought to rely on the defence of prescription. Kronospan asserted that because the Claimants had tolerated the emissions for a long period of time without objection, they should now be prevented from bringing a claim in relation to those emissions.
This case highlights practical evidential issues surrounding nuisance claims and the importance of expert evidence in determining whether an interference with the use of the land has been made.
Decision
Ultimately, after the dust had settled, the Court dismissed the claims for nuisance. The Court decided that the dust did not amount to a nuisance, stating that “the claims made by each of the lead Claimants fail. They fail because, on my assessment of the evidence, I do not accept that the nature, extent, impact and frequency of the dust emissions suffered by them was sufficient to constitute a substantial interference with the enjoyment of their properties.”
In making its decision the Court referred to one of the leading cases on nuisance, Fearn & Ors v Board of Trustees of the Tate Gallery [2023] UKSC 4 and highlighted that the Claimants must suffer a diminution in the utility and amenity value of their land in order to succeed. The Claimants had not established the necessary diminution and personal discomfort alone was not sufficient.
Concerning Kronospan’s second defence, the Court was satisfied that Kronospan was appropriately regulated (and complied with those regulations). However, it did comment that compliance alone should be taken as the minimum standard to meet in industrial nuisance cases.
The importance of expert evidence
The decision is lengthy (running to over 1,000 paragraphs) and provides a helpful summary of the key facts to establish for a nuisance claim to succeed. The Defendant’s use of its land must amount to a substantial interference with the Claimant’s ordinary use of its land. This is assessed objectively and, as in Kronospan, will usually require expert evidence.
While not the sole reason that the Claimants were unsuccessful, the Court strongly criticised the Claimants’ expert’s evidence and emphasised the need for experts to maintain the essential principle of independence.
One point of criticism concerned the decision of the Claimants’ experts to change their methodology (including by adjusting the input data from what had previously been agreed between the parties’ experts). The Court expressed its concern that “one reason for the change of approach was that the initial results were producing conclusions which were unfavourable to the Claimants’ case”.
This highlights the need for experts to act independently. If an expert changes their approach, they must be able to explain why this was necessary.
In contrast, the Court noted that Kronospan’s expert had “explained in great detail in his report the process which he and his team had undertaken.” The data collected and analysed by Kronospan’s expert was also more complete than that relied on by the Claimants’ experts -having reviewed data collected over three years as compared to nine months. This impacted the weight the Court was willing to place on the Claimants’ expert’s evidence, which it found to be “too variable, unreliable and time-limited to enable me to draw any clear conclusions”.
The significance of the locality principle
The Court considered whether Kronospan’s activities exceeded the ‘ordinary use’ of the land in light of the area’s character. Chirk is described as a mixed residential and industrial town, with a population of approximately 4,500 with three factories (including Kronospan’s factory) operating in the area.
Whilst the operations of the Kronospan factory had expanded since it opened in 1971, the Court held that this should be considered against the timeframe in which the changes had occurred. A Claimant must identify individual developments or intense increases to activities within the relevant period, especially where they cover a large period of time as in the Kronospan case. “Gradual changes or modest developments” which are “compatible with the existing character of the locality” will not suffice, in the Court’s view.
Key takeaways
The Kronospan decision serves as an important reminder of considerations a Claimant should make before pursuing a nuisance claim. It is important that they have sufficient evidence of the instances of nuisance and the appointed expert is independent and has the expertise and resources to produce a robust, and objective, report. These types of claims can be expensive and time consuming, meaning careful analysis and thorough preparation of a Claimant’s case to improve their chances of success is particularly important.
Similar points apply for a Defendant defending a nuisance claim, but it is also important to note that a Defendant’s compliance with the relevant planning and environmental requirements in connection with their operations on land should be considered as a minimum, especially where operating near to residential land.
This article does not constitute legal advice, and you should seek advice on the specific circumstances of your case. Please contact Matt Cordwent or your usual Charles Russell Speechlys contact if you have any queries.
