Hirose Electrical UK Ltd v Peak Ingredients Ltd

Commercial premises – Odour – Actionable nuisance – Appellant occupying premises on light industrial estate – Respondent occupying adjoining premises – Unpleasant smells emanating from respondent’s premises – High Court concluding escape of odours through party wall not constituting nuisance in law – Whether judge misinterpreting and misapplying the law — Appeal dismissedThe appellant leased business premises on an industrial estate to manufacture parts for mobile telephones. It used the premises for offices, warehousing and distribution. Warehousing and distribution ceased in around April 2007 and the appellant decided to vacate the premises in May 2008. The respondent had been the lessee of the neighbouring premises since February 2002. It manufactured food additives and coatings.From the beginning of the respondent’s occupation, the appellant had complained of strong and pervasive smells, variously referred to as spicy, peppery or like curry or garlic, causing a nuisance at its premises and injury to the health of its employees. It was accepted that unpleasant smells had been escaping from the respondent’s property into the appellant’s property through cracks in a party wall. The High Court held that the smells did not amount to a nuisance in law, taking into account the nature of the neighbourhood and the evidence as to frequency, intensity and effect. The occupier of a unit on a light industrial estate had to expect the possibility of unpleasant smells and the respondent’s use of its unit for normal operations had not been unreasonable: see [2010] PLSCS 269.The appellant appealed, contending, inter alia, that the deputy judge had: (i) been wrong to hold that the respondent’s use of its unit was reasonable given the porous state of the party wall between the two units; (ii) had misinterpreted and misapplied the law laid down in Southwark London Borough Council v Mills [1998] 3 EGLR 46; [1998] 45 EG 151; and (iii) wrongly drown an analogy from that noisy neighbour nuisance case, which held that the normal and reasonable use of residential premises by its occupier did not amount to a nuisance to the neighbours.Held: The appeal was dismissed. No grounds had been established on which the appeal court could disturb the judge’s findings. He had correctly understood the Southwark judgment and had not made any false analogy from that case.A smell that caused discomfort and inconvenience to the ordinary enjoyment of property might be a private nuisance actionable by the affected occupier. In determining whether a nuisance arose, the court applied an objective standard set according to the circumstances and locality of the neighbouring properties. The controlling principles of reasonable user of property and reciprocal regard for the interests of neighbours reinforced an altruistic process of give and take: Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264 considered.It was for the trial court to assess the overall situation by applying an objective standard to the facts before it. The issue for the trial court was whether the evidence established the existence of a nuisance and the defendant’s responsibility for it. In the appeal court, the issue was whether the trial court’s assessment was wrong. The word “wrong” in that context meant that the first instance assessment was flawed by a misinterpretation of the applicable law or by a misapplication of the law to the ascertained facts or if, for some other reason, it was obviously unsupportable.In the instant case, the judge had been entitled to attach some significance to the location and character of the estate. Its light industrial character covered the respondent’s food additive manufacturing, which was permitted on planning grounds and by the user covenant in its lease. The activities in the unit were carried on without objection or intervention on environmental or health and safety grounds by the relevant statutory authorities. Although those matters were obviously not conclusive against the existence of a private nuisance, they were relevant indicators of the levels of discomfort and inconvenience caused by the smell. There were no grounds on which the appeal court could second guess the deputy judge’s findings concerning the strength and effects of the smell. The permeation of the smell was intermittent and continued for a long period before the appellant took legal action. The porous nature of the party wall was relevant to the penetration of the smell into the appellant’s unit and had been a subject of remedial work but blame could not be allocated to the parties or the landlord. The judge had been entitled to conclude that the reasonable user by an occupier of industrial premises on an industrial estate did not become a nuisance because of inadequacies in the party wall between its premises and its neighbour’s.David Holland QC (instructed by Rochman Landau LLP) appeared for the appellant; Richard Harwood (instructed by Kennedys LLP, of Maidstone) appeared for the respondent.Eileen O’Grady, barrister