Nuisance law in industrial Wales – local and national conflicts (part one): copper smelting in a pre-regulatory era – Mark Wilde

Introduction

This and the following chapter focus on the role of the common law as a means of environmental protection and the key role that certain Welsh cases played in forging the law of nuisance as it currently stands. Certain cases, drawn from two industries that have played major parts in the industrial heritage of Wales, are used as historical case studies with the intention of drawing lessons for the future.

South Wales was at the forefront of the industrial revolution; this created land use conflicts on a hitherto unknown scale. In the nineteenth century the antiquated law of public and private nuisance was called upon to resolve, for example, disputes between coppermasters and landowners and farmers arising from the damage caused by ‘copper smoke’. In the twentieth century the oil industry arrived in south west Wales with the construction of a number of oil refineries near Milford Haven. Once again the impact on the local environment was substantial.

The present chapter and the following chapter constitute a two-part analysis of these industries and focus on the copper and oil-refining industries respectively. The case studies raise somewhat different, although related, issues regarding the relationship between common law and public regulation. The copper cases were brought at a time when there was no public regulation of industrial activities to speak of. Those who were aggrieved by the evils of copper smoke had nowhere to turn but the common law. This exposed the weaknesses of the common law in terms of the difficulties of balancing competing land uses and the procedural obstacles associated with pressing home a successful action in the courts. By the time the oil industry arrived in Pembrokeshire in the 1950s and 1960s the legal landscape had changed and industrial emissions were the subject of regulatory regimes. Here the issue was whether the common law should be afforded the space to correct regulatory failures stemming from inadequate standards or poor enforcement or the scope for common law actions should be closed down on the basis that localized harms would already have been weighed against the national interest as part of the planning process. Although these industries were very different in terms of their modes of operation and the regulatory climates that pertained in their respective epochs, a number of common themes emerge. In both cases, economic interests came to the fore and had a major effect on the development of nuisance. The Welsh copper-smelting cases (e.g. Bankart v. Houghton) were precursors of the seminal House of Lords decision in St Helens Smelting v. Tipping, which established that harm had to be judged by reference to the character of the neighbourhood.1 Clearly, industrialization had irrevocably changed the character of the neighbourhood in certain areas. The ability of nuisance to provide redress in respect of environmental harms caused by industrialization was further curtailed as a result of the House of Lords decision in Allen v. Gulf Oil Refining.2 Here it was held that an Act of Parliament authorizing the construction of an oil refinery could give rise to a statutory authority defence. This was despite the fact that the Act was silent on the actual operation of the plant and even though the Act made no provision for compensation as regards nuisances caused by the plant.

In these cases the ability of nuisance law to protect the local environment was severely curtailed by these doctrinal developments. As regards the wider themes raised by these cases, an interesting aspect is that the public interests, adduced as reasons for limiting the scope of nuisance, were driven by the ‘national’ interest as determined by London. In one copper-smelting case it was famously argued that the Royal Navy would suffer if it could not obtain copper cladding for its ships. In Allen it is clear that domestic oil refining was regarded as being in the ‘national’ economic interest and there appeared to be no consideration of the impact on the village of Waterston.

In relation to the wider themes it is important to note that the chapters go beyond a strictly doctrinal analysis of the cases and delve into the legal history of the issues. To this end the author has made use of archival evidence, contemporary newspaper accounts and even the personal recollections of a lawyer involved in the Allen case. Such an approach is necessary because a doctrinal analysis can take us only so far in terms of understanding how a case came about and the ramifications that flow from it. A case report is no more than a snap shot of a dispute which may have been running for some years before it gets near the courtroom door. Furthermore, owing to the peculiarities of civil procedure, case reports rarely furnish us with the outcome of a dispute. Many points of law are settled as a result of interlocutory appeals on preliminary issues. The case may never actually proceed to a full trial of the facts. Historical sources can fill in the gaps by shedding light on how a case came about, the motivations of the parties and what actually happened ‘on the ground’ following a ruling by the court. In this respect these techniques have been used to help answer important questions regarding the relationship between common law and public regulation in an environmental context; for example, the extent to which civil juries may have been swayed by public interest arguments in the copper-smelting cases and the extent to which the Allen litigation resulted from the failure of planners and regulators to address the concerns of local residents.

It should also be noted that many of these themes are not merely of historic interest and may contain lessons for the future. A number of major infrastructure projects are currently in the pipeline, ranging from High Speed 2 to nuclear power stations and vast wind farms on the Welsh coast. However, in recent times the view has often been expressed that, whereas there was once a distinct lack of public scrutiny regarding major infrastructure projects, the pendulum has now swung too far the other way. The notorious public inquiry into Heathrow Terminal 5 is often held up as an example of the cumbersome nature of the planning system relating to the delivery of major infrastructure projects.3 Given the current economic climate and the desire by the current UK coalition government to build its way out of recession by promoting major infrastructure projects, there is an appetite for less regulation and expedited planning procedures.4 In fact, moves towards the streamlining of the planning system, in terms of the authorization of major infrastructure projects, pre-date the latest policy announcements. The Planning Act 2008 is intended to smooth the path for infrastructure projects by offering a simplified procedure. Moreover, it expressly preserves the defence of statutory authority that was at the heart of the Allen case. Statutory powers and procedures are often predicated on the assumption that there is no room for the common law, in that the regulatory machine would have apprised the decision maker of all he or she needs to know regarding the localized impacts of development. Cases such as Allen serve as salutary lessons regarding the dangers of making such assumptions.

The copper industry

Even by the standards of the Industrial Revolution the copper industry was notorious for the highly toxic nature of its emissions. Thus it is fitting that the industry gave rise to perhaps the best-known case in nuisance, St Helens Smelting v. Tipping, which established the fundamental concept of character of the neighbourhood.5 Henceforth, a degree of relativism was introduced into the law of nuisance in that, in the absence of physical damage, only harm that was exceptional given local circumstances would be actionable. There was one important proviso, however, namely that nuisance causing physical harm would remain actionable per se. In other words, physical harm would remain unreasonable irrespective of how widespread and ‘normal’ that type of harm was in the area. Nevertheless, as we shall see, it is not always easy to draw a neat distinction between this tangible and intangible harm. In fact Tipping was not the first person to take on the might of the coppermasters; there had been earlier cases centring upon the much bigger south Wales copper industry. The historical context of these cases sheds some light on how the land use conflicts resulting from the Industrial Revolution brought about the doctrinal developments established in Tipping.

A brief history of copper mining and smelting in the UK

In fact the roots of the UK copper-smelting industry were established centuries before the Industrial Revolution. Copper ore has been abstracted and smelted in Britain since the Bronze Age, although smelting on an industrial scale did not commence until the Elizabethan era.6 In 1568 the Mines Royal Society was incorporated with the objective of unlocking the mineral wealth of the realm, largely for military purposes. The Society imported all the requisite skills and expertise from Augsburg in Germany, the acknowledged world leader in copper-smelting technology at the time. Initial smelting operations were established in Keswick but by the 1590s the main base of the nascent industry had shifted to south Wales, where the industry took root in the Neath and later the Tawe valleys. There were various logistical reasons for the move including the abundance of fuel for the furnaces in the form of coal and timber, and that copper ore could be shipped across the Bristol Channel from Cornwall. Furthermore, it is surely no coincidence that one of the parties who stood to gain most from the move was William Herbert, the First Earl of Pembroke and a major Mines Royal shareholder.7

The Mines Royal Society laid the foundations of one of south Wales’s most important industries, and the region remained a major world centre for copper smelting until the decline of the British industry in the late nineteenth century. In the interim a smaller copper-smelting centre emerged in a hitherto rural part of Lancashire.8 The isolated St Helen’s Chapel gave its name to the industrial town that grew there. A concatenation of circumstances led to the development of copper smelting in Lancashire. The first copper smelters were built following the discovery of copper ore in Parys Mountain on Anglesey, from which the ore could be easily shipped to north west England, where the smelters were fed by abundant resources of local coal. In fact the coalmasters actively courted the mineral refiners by offering cheap land near the coal mines to build the smelters and supplies of coal at preferential rates.9

By the late eighteenth century, copper was in high demand for manufacturing all manner of objects from pots and pans to copper cladding for ships of the Royal Navy. When combined with zinc, a highly versatile alloy was produced in the form of brass. The Industrial Revolution created demand for copper and brass on an unprecedented scale. The malleable and heat-resistant properties of the materials rendered them ideal for manufacturing the intricate components of steam engines. However, this increased demand hastened the depletion of domestic reserves of copper ore and nearly led to the premature demise of the British smelting industry. In 1825 the industry was revived by a decision to reduce the duty payable on imported copper ore.10 The existing copper-smelting plants were situated near great ports, which facilitated their reliance upon imported ore. The south Wales industry was supplied by ore shipped into Swansea, and St Helens was fed by Liverpool, to which it was now connected by canal.11 Henceforth British copper smelting went from strength to strength and consolidated the fortunes of the small number of family firms who had come to dominate the industry. Foremost amongst these were the Cornish mining dynasties, including the Vivians and the Grenfells, who had diversified into smelting.

The St Helens copper industry received a further boost from the close links that it was able to forge with the alkali industry thanks to a fortuitous synergy in production processes.12 The St Helens alkali industry used the highly polluting Leblanc process to produce caustic soda, a vital ingredient in the manufacture of soap and glass. The production process used salt and sulphuric acid, which were chemically combined and later burnt with coal and chalk. The cost of sulphuric acid reached extortionate levels because of shortages of Sicilian sulphur, and an alternative was needed. The industry’s chemists discovered that sulphur could be extracted from pyrites. It so happened that the copper industry had begun importing high-grade pyretic ores from Cuba following the reduction in excise duty. This led to the development of the ‘wet copper’ refining process whereby a chemical process was used to produce copper sulphate. Once the copper had been abstracted from this solution the residual sulphuric acid could be supplied to the alkali industry.

Copper smelting was one of the most polluting activities in industrial history, and the surrounding countryside and farmland paid a heavy price for the economic benefits generated by the coppermasters. The refining process involved ‘roasting’ or, to use the technical description, ‘calcining’ the ores to burn off impurities including sulphur and arsenic. The deathly white smoke was known as ‘copper smoke’ and its harmful nature was apparent from the earliest days of the industry. On an industrial scale the fumes poisoned animals, scorched crops and denuded trees. The calcining process had to be conducted several times before the smelting process could even be commenced, and the latter process was highly polluting in its own right. The damage was vividly described by Thomas Williams, a local doctor who carried out extensive research into the effects of copper smoke and published a book on the subject:

In 1821 a number of local landowners, including the Duke of Beaufort and the Earl of Jersey, were sufficiently moved by the problem to establish a prize fund and launched a competition to find a method to:

The competition attracted only a limited number of contenders, one of whom was the current incumbent of the Vivian’s smelting business, John Henry Vivian. J. H. Vivian’s father had invested heavily in his son’s education. The investment had paid off in that J. H. Vivian was renowned as one of the world’s leading metallurgists. It was, perhaps, his passion for science, rather than the relatively modest prize of £1,000, that motivated him to participate in the competition. Indeed, he spent far more than this in his attempts to find a solution. The competition is also interesting in that the wording of the notice links a cleaner process with a more efficient process which captures valuable particles that might otherwise escape up the flue along with less desirable elements. Indeed, the fact that cleaner technologies are often more efficient technologies is a recurrent theme in the history of pollution abatement technology. From a commercial perspective this phenomenon would also have been of great interest to Vivian.

Despite the expertise and resources that Vivian had to throw at the problem, the solution proved elusive.15 He experimented with shower chambers at the Haford works whereby water sprays were used in an attempt to condense the harmful materials. Although the method dealt with certain chemicals, it failed to deal with the key harmful ingredient, sulphur dioxide. His rivals’ experiments, which included attempts to vaporize the harmful matter by feeding the gases through long horizontal flues heated to extreme temperatures, fared little better. The trials were abandoned and Vivian reverted to the age-old dispersal method and built tall chimneys at the Haford works. Vivian was in no doubt that this would disperse and dilute the fumes to the extent that they could do no harm; this view proved to be overly optimistic. With no regulator to call upon and no solution forthcoming from the industry itself it was only a matter of time before the common law would be called upon to resolve the matter.

Copper smelting and the common law of nuisance

The celebrated case of St Helens Smelting v. Tipping has focused attention on copper smelting in the St Helens area. However, earlier litigation focused upon the much larger south Wales industry, where major actions had already been pursued by local farmers, a prominent member of the landed gentry and an affluent newcomer with dreams of establishing an idyllic rural retreat.

The Llansamlet farmers

The tall smokestacks installed at the Haford works did not enable the sulphurous acid gas to clear the neighbouring hills in the manner in which Vivian had intended. The fumes were channelled up the valley by the prevailing winds and, because the gas was heavier than air, it would sit over the valley in a white cloud when pinned down by temperature inversion. In 1833 a group of farmers upwind from the Haford works at Llansamlet pooled their resources and succeeded in filing a bill of indictment in public nuisance against the Vivians.16