A Smell By Any Other Name

August 3, 2012

A Smell By Any Other Name

A case brought by a group of residents who live near a tip was recently heard by the Court of Appeal.

The residents complained that the smell of the tip was a nuisance that blighted the everyday enjoyment of their properties.

The tip was operated by leading waste management company Biffa and planning permission for the site was given in 2003. Biffa argued that since they were using the site in compliance with the planning permission, the residents could not bring a claim.

The lower court made a judgment based on the concept of a ‘reasonable user’ of the land and agreed with Biffa’s argument, holding that a certain amount of odour was reasonable given the purpose for which the land was used. The decision therefore, in effect, attempted to ‘set a threshold’ for the unpleasantness of the smell that would justify bringing court proceedings against the company.

The Court of Appeal took a completely different view, considering that the fact that an activity is not in contravention of the planning permission does not mean that it is necessarily reasonable. In this case, the introduction of waste that produces offensive smells was not authorised by the planning permission and the permission could not be said to have altered the character of the neighbourhood to permit this. The use of a ‘threshold level’ to assess the merits of cases was also inappropriate.

Biffa was therefore ordered to cease allowing unpleasant smells to emanate from the tip.

Although the decision is likely to be appealed, those facing nuisance issues and wishing to take action to prevent them will be encouraged by the fact that even if land use is within the bounds of planning permission, it may be possible to pursue action.