Michael Kent KC successfully defends nuisance group litigation
2nd Oct 2025
PATRICIA ANDREWS & Ors. v KRONOSPAN LIMITED [2025] EWHC 2429 (TCC)
Trial of group action: claims for dust, odour and noise nuisance arising out of the operation of large particle board factory in North Wales.
Following a 4-week trial, HHJ Stephen Davies, sitting in the Technology and Construction Court in Manchester, concluded that the claims of all 16 test claimants failed in relation to the “stage 1” trial, alleging public and private nuisance in the six years prior to July 2017.
This was a claim by claimants living in 159 households in Chirk near Wrexham, North Wales and related to the Kronospan factory which is a very large manufacturer of MDF, particle board, worktops and similar timber-based products which had been established in Chirk since the early 1970s.
The judgment considers the main authorities on public and private nuisance (principles summarised in recently in Fearn v Tate Gallery [2023] UKSC 4) particularly cases relating to commercial or industrial activities, including Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312 and Lawrence v Fen Tigers [2014] AC 822. Apart from issues of fact as to the nature and extent of any impact of the Defendant’s activities on local residents, which on the basis of factual and expert evidence (on dust monitoring and characterization and dust dispersion modelling) the judge decided in favour of the defendant, the case is of interest because of the very close control, both through the planning system and under environmental permits, of the very activities said to be responsible for dust, noise and odour nuisance. The judge said at [82]:
“For present purposes, however, it seems to me that I must and should follow Barr v Biffa and Lawrence and proceed on the basis that: (a) environmental regulatory conditions may, in an individual case, provide a starting point as to the where the dividing line lies between emissions which do and do not amount to a nuisance; and (b) it is open to a defendant to plead and prove compliance with such regulations if he seeks to rely on them as evidence of the reasonableness of his operation.”
In connection with requirements in permits which were not expressed in terms of specific emission limits, the concept of ‘Best Available Techniques’ (BAT) introduced by the Industrial Emissions Directive on Integrated Pollution Prevention and Control 2010/75/EU became prominent. This requires “the most effective and advanced stage in the development of activities and their methods of operation which indicates the practical suitability of particular techniques for providing the basis for emission limit values and other permit conditions designed to prevent and, where that is not practicable, to reduce emissions and the impact on the environment as a whole”.
The Emissions Directive also provides for the issuing of BAT reference documents (BREFs) and the BREF applicable to the production of wood-based panels and issued in 2016 was required to be implemented by 2019 but it was accepted that Kronospan’s Chirk factory had already achieved broad compliance with it by 2018.
This is a case which has an interesting history in relation to the duty of expert witnesses: see [2022] EWHC 479 (QB).
In preferring the defendants’ experts the judge said at [752] he was
“ 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. That is even more so where, as here, the initial results happen to be adverse to their clients’ case and where their subsequent investigations produce conclusions more favourable to their clients’ case. In my view 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.”
He said at [753] that the claimants’ experts had not “been able to persuade me that their change of approach was not at least partially influenced by their desire to see whether or not at least partially influenced by their desire to see whether or not their further analysis would benefit their clients’ case more than their existing analysis.”
Michael Kent KC with Michael Jones of Cobden House Chambers Manchester on the instructions of Hugh Mullins, Clyde and Co acted for the successful Defendant.
