River Wye pollution claim

The scale of poultry farming in the River Wye region has grown massively over the last ten years, with some researchers estimating the area now houses 20 million or more birds at any one time. The birds are reared in intensive poultry units, which are industrial ‘factory farms’ bearing little relationship to the traditional image of free-range birds.  

The rapid growth of poultry farming on this scale and in such a concentrated area has had a detrimental impact on the local environment.  In particular, the volume of chicken manure, which is high in phosphates, has caused pollution of local rivers and tributaries, which in turn has resulted in species decline of fish and plants and has culminated in Natural England downgrading the status of the River Wye to “unfavourable-declining”.  

The high concentration of intensive poultry units has also had an impact on neighbouring properties, which are affected by the smells, noise and insects caused by intensive poultry farming.

The claim is primarily being brought against Avara Foods Limited (Avara). It is a subsidiary of the US food and agriculture giant Cargill Inc. which was sued for polluting the River Illinois through its U.S. poultry operations, which operated in a similar way to Avara Foods’ operations.

The claim will argue that Avara bears primary responsibility for the problem because it has entered into contracts with poultry farmers across the region and is the largest poultry processor in the River Wye area.  It is estimated that it accounts for around 80% of the total number of birds in the region and processes around two million chickens a week in Hereford. Avara supplies supermarkets and fast-food outlets, including Tesco and McDonald’s.  

It will be alleged that Avara’s business model means that it exercises control over a significant number of the intensive poultry units that are causing river, odour, insect and noise pollution, and that Avara should be legally responsible for their impact. 

It is possible that other relevant defendants will be identified as we continue investigating the claims.

Generally, only polluters can be liable under private law, not to people who fail to prevent pollution. In the River Wye region, the main cause of river pollution is alleged to be the operations of Avara Foods Limited.  

Regulators, like the Environment Agency, are not normally liable in private law for failing to prevent private companies from causing damage. Even if the public body knew about the pollution or had effectively stopped pollution in the past. Local planning authorities are not generally liable for grants of planning permission unless they create danger (rather than permitting danger be created by a private company).  

Private law distinguishes between those who fail to stop pollution or even permit pollution and those who actively pollute.  

Leigh Day recognises the failure of the regulator to protect rivers in the River Wye region. This is why our public law team has brought a separate action to hold the Environment Agency accountable. You can read more about the public law action here: River Action wins permission for River Wye judicial review | Leigh Day  

As the largest active polluter, Avara must also be held responsible for the impact of its operations on the rivers and the surrounding community. This private law action will take Avara to court over the damage it has caused.

In January 2023, a U.S. court found that a member of the Cargill group, the same corporate group as Avara Foods Limited, had polluted a river in Oklahoma with phosphorus through poultry farming.  

In the UK, many successful compensation claims have been brought where bodies of water were disrupted/polluted or when private property rights were affected by substance run-off.  

The intensive poultry farming has resulted in phosphorus-rich manure being allowed to accumulate within the River Wye region. This is spread on fields or leaks from heap-storage in the form of manure. When run-off occurs from fields or heaps, for example during rain, the phosphates pollute the rivers. 

The high concentration of phosphates in the rivers causes algal blooms, which in turn limits oxygen in the river, making it hard for wildlife to survive. This decreases the health of the river and the surrounding ecosystems.   

Algal blooms can also be unsightly and odorous, resulting in insect swarms. Blue algae can also be especially harmful to animals, such as pets and livestock, and can even harm humans who come into contact with it.  

Campaigners have said that without immediate and meaningful action, the Wye could suffer irreversible ecological damage.  

The claim will argue that it is unlawful for Avara’s business to continue impacting the region in this way, which interferes with the private rights of property owners and/or the public rights of members of the local community.  

Property owners have a legal right to enjoy their property rights without major interference from another party. Those rights include the right for waterside properties not to have the water outside their property polluted and the right to sit in a garden free from strong odours from neighbouring intensive poultry units. Avara’s activities are, therefore, alleged to be causing a ‘private nuisance’ and breaching these property rights. 

Members of the local community have a legal right not to have their comfort particularly impacted by the activities of another party. Through river, odour, insect and noise pollution, Avara is alleged to be causing a ‘public nuisance’ and breaching this public right.  

The compensation you can claim will depend on the type of loss you have suffered and a number of other factors. For example, we estimate that:  

• If you have suffered a reduction in your property value as a result of the pollution of the River Wye region, you may receive a percentage of your property value.  
• If you have suffered substantial business losses as a result of the pollution of the River Wye region, you may receive a significant amount that relates to the profits your business has lost over the period.  
• If you have suffered particular discomfort owing to the restriction of your riverside hobby, you may receive thousands in compensation.  

We will consider throughout the claim any additional losses you may have suffered as a result of the pollution of the River Wye region, and will keep you updated if there are any changes.

By joining the claim you may be able to seek remedial action.  This means that any defendant such as Avara could be ordered by the Court to clean up affected rivers such as the River Wye and/or significantly reduce its phosphate polluting activities going forwards.  Such measures are likely to be vital to the long-term recovery of the region.  

You may also be able to seek an injunction preventing Avara from continuing to pollute the Wye Catchment. Whilst Avara has put in place a plan to address the chicken manure produced from its operations, if these plans are ineffective, you may be able to compel Avara to take other steps to prevent future pollution.  

In addition, the compensation that the defendants may be required to pay should act as a strong deterrent against companies polluting rivers in the future. In particular, it will send a powerful message to the shareholders of these companies that the cost of polluting is more expensive than the cost of doing the right thing.

Generally, claims brought on the basis of nuisance must be commenced within six years of the date on which the claimant suffered the loss as a consequence, or (if later) the date on which they became aware of the loss and its cause. This is known as limitation and if a legal claim is not commenced before limitation expires it generally may not proceed.  

The assessment of limitation is fact-specific and we cannot provide individual advice during the sign-up process. 

We will bring these claims on a “no win, no fee” basis. You will pay no upfront money for Leigh Day to represent you in your claim.  

If you lose, you will not pay for Leigh Day’s services provided you have complied with the terms of the agreement you sign with us. 

If you win, you will pay us 30% of your compensation (excluding VAT) plus our expenses. This is the maximum you will have to pay us as any legal costs recovered will be offset against the sum you have to pay us.  

Please carefully review the retainer agreement documents downloadable during the sign up process and circulated to all clients by email, in particular your client care letter, for details of the terms on which we will represent you.  

If you have any questions regarding your retainer agreements, please email RiverWyePollution@leighday.co.uk and one of our team members will respond. Alternatively, you can call us at 02037277202. 

It is difficult to say at the early stages of an English litigation how long the claims might take. The length of claims depends on a number of factors which are often outside our control, including the approach that Avara and any other defendants will take in the litigation. In our experience, group claims of this type may take three to five years to take all the way to trial. The length of time the claim takes will depend on any complexities arising within the litigation, and whether settlement can be achieved at an earlier stage.  

We will update you regularly with more information on the timescale of your case, particularly in relation to timescale for next steps, which can usually be predicted more accurately.  

We are at a very early stage of the claim, where we are still gathering information and evidence.  

If Avara defends the claims and we need to commence court proceedings, there are mechanisms available to help efficiently progress large group actions involving a large number of related claims. In particular, it is possible to ask the Court to grant a Group Litigation Order, which allows for claims with common/related issues to be heard and managed together rather than on an individual basis. 

While we will not hesitate to initiate court proceedings when appropriate to achieve our clients’ aims, we will also explore all possible ways of achieving your objectives, including mediation or some other alternative dispute resolution procedure, if appropriate and where your opponents agree to engage.  

At this stage it is too early to say definitely what documents you may need to provide in support of your claim. It is likely that some key issues can be dealt with on a group basis with the assistance of appropriate expert evidence.  

However, among others, we may request your documents that evidence any losses you claim to have suffered. This may include, for example:  

• Proof of ownership of the affected property rights;
• Evidence of loss of earnings of your business, such as your accounts;  
• Evidence of where your use/enjoyment of property or the rivers have been affected; and/or 
• Vet invoices.  

We will provide all our clients with regular updates, particularly after significant milestones in your claim.  

If you have any questions regarding your retainer agreements, please email RiverWyePollution@leighday.co.uk and one of our team members will respond. Alternatively, you can call us at 02037277202. 

Oliver Holland is the partner on this claim. Stuart Warmington, Celine O'Donovan, Benji Gourgey, and a team of dedicated paralegals will assist him in the day-to-day running of the case.  

As explained above, there are two categories of claimants who can join the claim: 

1. Those whose property rights are being affected; and  
2. Those whose public rights are being affected. 

Individuals and businesses (where the business's profits have been reduced or property it owns/leases have been affected) are both potentially eligible to join the claim.  

Those with affected property rights 

To join the claim for a breach of your property rights, you must have permanently owned/leased a property or fishing/angling rights at some point from 2018.  You are still eligible to join if you were impacted before 2018, and the impacts continued after 2018. However, if you stopped being impacted entirely before 2018, you are not eligible to join the claim at this stage.  

In addition, to be eligible at this stage, one of the following must apply to you: 

1. You or your business must have owned/leased land within 100 meters of an affected river (i.e. the River Wye, the River Usk or any other tributary or watercourse in the region); 
2. You or your business must have owned/leased land or fishing or angling rights in an affected river; or 
3. Your land or your business' land must have been: (i) located within 1,500m of an intensive poultry unit; and (ii) it must have been impacted in some way, such as by odour coming from the intensive poultry unit.  

Examples of clients falling under this category include: 

• A hotel located along the River Wye;  
• An individual with fishing rights in the River Usk; and  
• A pub located next to an intensive poultry unit whose business is being affected by the smell of the chickens.  

Those with affected public rights 

To be eligible to bring a claim, you will need to demonstrate that you have been particularly affected by the pollution in the River Wye region since 2018. You are still eligible to join if you were impacted before 2018, and the impacts continued after 2018. However, if you stopped being impacted entirely before 2018, you are not eligible to join the claim at this stage.  

Examples of potential claimants include: 

• An individual who has invested significant time and money into a riverside hobby but is no longer able to do that hobby because of the algal bloom.  
• An individual who was a regular swimmer in the River Wye but feels they are no longer able to swim because they are worried about the pollution.  
• A camping site which has suffered a drop in bookings because of the widely publicised declining health of the River Wye.  
• An individual who used to regularly take their dog for a walk along the river but is no longer able to because of fear that their dog will fall sick if it drinks the water. 

Please note that the above is the eligibility criteria under which Leigh Day can currently enter into retainers with clients and is not legal advice. It does not necessarily mean that you do not have a valid legal claim and other law firms may be able to assist you depending on your individual circumstances.

In order to bring a property rights claim, you must have had permanent property rights at some point since 2018 and one of the following must apply to you: 

1. You or your business must have owned/leased land within 100 meters of an affected river (i.e. the River Wye, the River Usk or any other tributary or watercourse in the region);
2. You or your business must have owned/leased land or fishing/angling rights in an affected river; or 
3. Your or your business property must have been: (i) located within 1,500m of an intensive poultry unit; and (ii) the property must be impacted in some way, such as by odour coming from the intensive poultry unit.  

Yes, you may still be able to claim even if you have sold your property either for harm suffered while you were the owner or if it can be shown that the pollution affected the value of your property when it was sold.  

However, you are not eligible to join the claim if you sold your property prior to 2018.  

You may still be eligible to claim for non-property related impacts in other sections of the claim, depending on your circumstances.  

You are still eligible to bring a property claim if you rent your property on a long-term basis. 

Holiday rentals and short lets etc. are not eligible to join the claim.

Riparian rights are attached to properties that back directly onto a river or similar and include:  

• The right to unpolluted water outside your property;  
• The right to fish in the water outside your property; and  
• The right to access the river frontage belonging to your land.  

It is assumed that you will have riparian rights if you own or lease land or property which borders a watercourse such as the River Wye. You will likely be able to confirm the position in the title deeds or lease if you are not sure.

We understand that a number of businesses in the region are being affected by the activities of the intensive poultry units.  Examples include: 

• Kayaking companies experiencing a decline in the number of customers because of concerns over pollution;  
• Angling businesses experiencing a decline in tourism owing to the scarcity of fish in the river; 
• Golf courses whose members are being affected by smells coming from neighbouring intensive poultry units; and 
• Hotels, bed and breakfasts and camping sites who are experiencing a drop in bookings because of the widely publicised fact that the River Wye is in a state of biological decline.  

Businesses are potentially able to claim for any loss of profit that they have suffered as a result of: 

1. the pollution of an affected river; or  
2. the impact on the business of having property in close proximity to an intensive poultry unit.

Riverfront businesses may also be able to claim for the devaluation of their property rights caused by the pollution.

Where you have been impacted by the activity of intensive poultry units in the River Wye region in some way beyond an ordinary member of the public, you may have a basis for bringing a claim. 

Relevant impacts include: 

• Loss of a riverside hobby e.g. you can no longer swim, kayak or walk your dog along your local river due to the pollution. 
• You can no longer visit your local park owing to the smells coming from neighbouring intensive poultry units.

In order for the impact to be sufficient, you must demonstrate that you have been particularly impacted when compared to an ordinary member of the general public.   

This means that it is not enough to have had a one-off activity affected.  Instead, you will need to show that you have invested significant time or money into your affected hobby.   

We therefore ask at this stage that people evidence this by confirming they have joined a club or invested in reasonably expensive equipment from which they believe they cannot get the full benefit.