Commercial premises – Odour – Actionable nuisance — Claimant occupying premises on light industrial estate — Defendant occupying adjoining premises – Unpleasant smells emanating from defendant’s premises — Whether escape of odours through party wall constituting nuisance in law — Claim dismissed
The claimant leased certain business premises on an industrial estate from which it manufactured parts for mobile telephones. It used the premises for offices, warehousing and distribution. Warehousing and distribution ceased in around April 2007 and the claimant decided to vacate the premises and did so in May 2008. The defendant had been the lessee of the neighbouring premises since February 2002. It manufactured food additives and coatings.
From the beginning of the defendant’s occupation, the claimant 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 defendant’s property into the claimant’s property through cracks in a party wall. An issue arose as to whether that amounted to a nuisance in law, taking into account the nature of the neighbourhood.
Held: The claim was dismissed.
Causing an offensive smell was one of the established types of nuisance caused by interference with another’s enjoyment of its land where it involved personal inconvenience and interference with one’s quiet enjoyment, personal freedom or anything that discomposed or injuriously affected the senses or the nerves; there was no absolute standard to be applied. It was always a question of degree whether the interference with comfort or convenience was sufficiently serious to constitute a nuisance. The acts complained of constituting the nuisance, such as noise, smells or vibration, would usually be lawful acts that became wrongful only from the circumstances under which they were performed, such as the time, place, extent or manner or performance. In organised society, everyone had to put up with a certain amount of discomfort and annoyance caused by the legitimate activities of one’s neighbours. It was well established that the character of the neighbourhood had to be taken into account. What might be a nuisance in a quiet rural area might not be in a busy town: Polsue & Alfieri Ltd v Rushmer [1906] 1 ChD 234; Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1992] 1 PLR 113; Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264; Wheeler v JJ Saunders Ltd [1996] Ch 19; Southwark London Borough Council v Mills [1998] 3 EGLR 46; [1998] 45 EG 151; Watson v Croft Promo-Sport Ltd [2009] EWCA Civ 15; [2009] 2 EGLR 59; [2009] 18 EG 86 considered.
In the instant case, the character of the neighbourhood was that of a light industrial estate. The court had concluded that the smells reaching the claimant’s premises did not amount to a nuisance on a light industrial estate as opposed to in a residential area, having taken into account all the evidence as to its frequency, intensity and effect. On the evidence, the degree of interference with the claimant’s business and with the comfort of its employees, having regard to the character of the estate, was insufficient. The occupier of a unit on a light industrial estate had to expect the possibility of disagreeable smells, for example, welding operations might easily be encountered. Moreover, the discomfort caused on an industrial estate, where the persons concerned work on weekdays in the daytime, was not as great as would be caused to residential neighbours.
The defendant’s use of its unit had not been unreasonable. It carried out normal operations of a kind that were common a light industrial estate and the manner in which those operations were carried out was not unreasonable. The root of the difficulties was the inadequate protection afforded by the party wall. It was not right to say that the ordinary use of industrial premises could not constitute a nuisance, but the court found that the defendant’s use of its premises was reasonable, taking into account the interests of the parties. 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 dividing its premises from its neighbour for which it was not responsible. The problem could have been wholly or largely cured from either side. The claimant’s attitude throughout had been that it was for the defendant, which caused the discomfort to its employees, either to take the necessary steps to alleviate it or to cease production. However, the risk of such discomfort was inherent in leasing premises of this kind, and it was for the claimant to do whatever was necessary to look after its employees.
David Holland (instructed by Rochman Landau) appeared for the claimant; Richard Harwood (instructed by Kennedys, of Maidstone) appeared for the defendant.
Eileen O’Grady, barrister
