Dust Settles in Favour of Industrial Defendant: Andrews v Kronospan Limited

Introduction

In the recent case of Andrews v Kronospan Limited [2025] EWHC 2429 (TCC), the High Court rejected a group nuisance claim brought by residents living near a major wood-processing facility in North Wales.

The judgment provides important guidance on establishing what constitutes a substantial interference in nuisance claims against established industrial operations subject to environmental regulation, and more broadly, serves as a reminder of the importance of reliable contemporaneous monitoring data, as well as rigorous and independent expert methodology.

Background

The dispute arose from the operation of Kronospan's particleboard, MDF and laminate flooring factory in Chirk, a town near Wrexham with approximately 1,800 households. Kronospan has operated on the site since 1973, handling around 1.5 million tonnes per annum of timber and timber products. Chirk has a mixed character, with industrial areas physically separated from residential areas by main roads.

The claimants comprised residents from 159 households living at varying distances from the factory, ranging from approximately 80 metres to several hundred metres away. Sixteen "lead claimants" were selected for a stage one trial to determine liability and quantum for the period from 18 July 2011 to 18 July 2017. The claimants complained of three categories of emissions: dust particles (including sawdust and wood fibres), odour (primarily woody smells and occasionally chemical odours from manufacturing processes), and noise (particularly from operations and vehicle reversing alarms at night).

Crucially, there was no scientific evidence that any emissions were harmful to health. The case concerned loss of amenity rather than personal injury, with claimants seeking damages for interference with the use and enjoyment of their properties, manifesting primarily through dust deposits on cars, garden furniture and windowsills.

The Court's decision

The Court applied the well-established principles for nuisance claims as recently restated by the Supreme Court in Fearn v Tate Gallery [2023] UKSC 4. Two key requirements must be satisfied. First, the defendant's use of land must cause a "substantial interference" with the ordinary use of the claimant's land, assessed objectively by the standards of an ordinary person. Second, even where substantial interference is established, there is no liability if the defendant's activity is itself no more than an "ordinary use" of its own land, judged having regard to the character of the locality and the "established pattern of uses".

The Court also considered the relevance of planning permissions and environmental permits. Following Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312 and Lawrence v Fen Tigers [2014] AC 822, the judge concluded that environmental regulatory conditions may provide a starting point for determining where the dividing line lies between emissions that do and do not amount to nuisance. Compliance with regulations may be evidence of reasonable operation, though this is not determinative.

Kronospan's operations were subject to detailed environmental permits issued by Wrexham County Borough Council. The permits contained various conditions regarding dust suppression, noise attenuation and odour control, though they did not specify precise emission limits for dust, noise or odour beyond the site boundary.

Considering the facts of this case and applying the relevant principles, the Court held the following:

The claimants had not established substantial interference from dust emissions. Between January 2011 and September 2017, Kronospan recorded 475 dust complaints, most relating to dust on cars. However, the Court noted that complaints were made on only 253 days over seven years (approximately 10% of all days) from a population of 1,800 households, a "vanishingly small percentage" of potential complaints.

The Court found that claimant witnesses, whilst generally honest, had significantly exaggerated the frequency and impact of emissions, influenced by genuine but unfounded health concerns and adverse publicity on social media.

The importance of expert evidence and contemporaneous monitoring data. The available monitoring data did not support the claimants' case. Expert evidence using data from the two dust monitoring programmes that had been put in place during the claim period were pivotal to the decision. These were (i) limited monitoring by the local environmental liaison group covering a nine-month period between 2016-17 using "frisbee" gauges, and (ii) more comprehensive monitoring by Kronospan from 2017-20 using "dustdisc" equipment. The Court preferred the evidence of Kronospan's expert, Dr Datson, over that of the claimants' expert, Ms Wilson, finding that that Ms Wilson had placed excessive weight on the limited and unreliable frisbee data from 2016-17. The more reliable dustdisc data from 2017-18 relied on by Kronospan showed much lower levels, with few exceedances of recognised thresholds for likely complaints.

More significantly, the Court applied particularly critical scrutiny to the claimants' experts' change of methodology. At paragraph 752, HHJ Davies held that 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."

At paragraph 753, the judge found 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 their further analysis would benefit their clients' case more than their existing analysis." This finding effectively undermined the credibility of the claimants' expert evidence on the issue of dust emissions.

Claims relating to odour and noise also failed. The Court noted minimal complaints about odour and noise over the relevant period, no expert evidence that noise levels exceeded recognised thresholds, and concluded that the odours complained of (primarily fresh or heated wood) would not be considered offensive or substantially interfering by a reasonable person.

The absence of enforcement action was a relevant factor. Despite periodic expressions of concern by the local authority about dust emissions, no enforcement action was ever taken against Kronospan. The judge noted this as relevant context, whilst recognising that absence of enforcement does not preclude a finding of nuisance in civil proceedings.

In reaching his conclusions, the judge emphasised at paragraph 1078 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." He acknowledged the decision was "close to the borderline" but concluded that the impact and frequency were insufficient to establish a substantial interference with the ordinary use of the claimants' properties.

Practical takeaways

The judgment confirms several important principles for parties involved in environmental nuisance litigation:

Contemporaneous monitoring data is critical. The Court repeatedly emphasised that limited, unreliable or post-dating monitoring data could not establish what occurred over the six-year claim period. The frisbee data from 2016-17, covering only nine months and subject to reliability concerns, was insufficient to prove nuisance throughout the limitation period.

Expert evidence must be rigorously justified. Where experts materially depart from initially agreed methodologies to produce results more favourable to their client's case, such departures warrant "particularly [critical]" scrutiny. The Court stated at paragraph 752 that experts "must satisfy the court that it was appropriate to do so on a purely objective basis" and found that the claimants' experts had not demonstrated this.

Subjective complaints require objective corroboration. The judgment demonstrates the difficulty of succeeding in nuisance claims based primarily on witness testimony, particularly where complaints may be influenced by perceived (but unproven) health concerns and adverse publicity. The Court found that such factors had led to exaggeration and hypersensitivity, making the factual evidence unreliable without objective corroboration.

Regulatory compliance matters but is not determinative. Whilst not a complete defence, evidence of serious engagement with environmental obligations, compliance with BAT requirements, and the absence of enforcement action provided important context supporting the defendant's case.

The threshold for nuisance remains high for established industrial operations. In mixed-use areas with an established pattern of industrial activity, claimants face significant challenges in proving that emissions constitute an unacceptable interference rather than a consequence of the locality's character that reasonable occupiers must tolerate.

[1] Andrews v Kronospan Limited [2025] EWHC 2429 (TCC).

[2] Fearn v Tate Gallery [2023] UKSC 4

[3] Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312