Introduction
1. The claimant (“Hirose”) has been the lessee of Unit 22 in the Crownhill Industrial Estate,
2. The defendant (“Peak”) has been the lessee of the neighbouring premises, Unit 20, since February 2002. It manufactures food additives and coatings.
3. From the beginning of Peak’s occupation, Hirose has 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.
4. There is no doubt that odours of this kind, which many would find disagreeable, have been escaping from Unit 20 to Unit 22 through the porous breeze block party wall, and through insufficiently sealed gaps in it. The issue in the case is whether this amounts to a nuisance in law, taking into account the nature of the neighbourhood.
The factual evidence
5. The Crownhill Industrial Estate was part of the Milton Keynes Corporation’s 7 year implementation programme in 1980, designed to open up an area of some 19 hectares for employment. The development was approved by the Secretary of State for the Environment on 12th August 1980. The permitted user was for uses within classes II, III, IV and X under the 1972 regulations, subsequently amended to classes B1, B2 and B8, which were the corresponding uses under the 1987 regulations.
6. These are as follows:-
“Class B1. Business
Use for all or any of the following purposes —
(a) as an office other than a use within class A2 (financial and professional services),
(b) for research and development of products or processes, or
(c) for any industrial purposes
being a use which can be carried out in any residential area without detriment to the amenity of that area by reason of noise, variation, smell, fumes, smoke, soot, ash, dust or grit.
Class B2. General Industrial
Use for the carrying on of an industrial process other than one falling within class B1 above or within classes B3 to B7 below.
…
Class B8. Storage or distribution
Use for storage or as a distribution centre.”
7. The excluded classes B3 to B7 consisted of a large number of heavy industrial uses. Thus, whilst class B1 excluded any form of user which would be detrimental to a residential area by reason of (inter alia) smell, class B2 does not, but many such activities were excluded because they would have been within B3 to B7, which were revoked in 1992 (B3) and 1995 (B4-7).
8. On 20th September 1989, the Milton Keynes Development Corporation transferred the freehold of the Crownhill Industrial Estate to Carroll Investment Corporation Limited, which on 14th December 1989 leased Unit 22 to a company called Heckler and Koch Machine Tool Limited for a term of 25 years, expiring in 2014. Hirose took an assignment of the lease on 22nd November 1993. The Permitted User was “warehousing light manufacturing and offices” and any other use within clauses B1 and B8. By clause 5.5.3, the tenant could not make internal non- structural alterations without consent, such consent not to be unreasonably withheld.
9. As noted above, Hirose used the premises partly for offices and partly for warehousing and distribution purposes. The latter activity was carried out in a large open space adjacent to Unit 20, separated from it by a breeze block party wall. The offices were slightly further away from Unit 20 and were on 2 floors. At times about 24 to 26 employees worked as Hirose’s premises, but by about April 2007, when Hirose ceased to use the premises for warehousing and distribution, the number of employees had fallen to about 8.
11. By early 2002 Peak was seeking larger premises, and it entered into a lease of Unit 20 on 26th February 2002. By clause 3.11.4, Peak covenanted not to use the premises otherwise than as a factory for the production of food with ancillary offices or, with the landlord’s permission, for any other use within classes B1, B2 or B8. By clause 3.11.2, Peak covenanted not to do any act which was or might become a nuisance. By clause 3.10, permission was required for any internal alterations or additions even of a non-structural nature.
13. Difficulties started almost immediately. There is an unsigned internal note stating that from 22nd March 2002 everyone was complaining of “strong odours” which were relieved a little by air fresheners and potpourri. On 26th and 27th March 2002 “Dave and Trevor” went home feeling ill. “Trevor” is one of the witnesses, Trevor Bradley, who had an existing asthma condition.
14. There is also a note dated 1st April 2002 from “Dave” (an employee called Dave Scargill):-
“Since Peak Ingredients moved in next door, my clothes smell and my nose and throat are almost constantly dry. At its worst I get a burning sensation which is very uncomfortable. As I work in the warehouse it is impossible for me to avoid it. On April 1st I experienced the worst it has ever been. Too many other people have noticed the smell and the irritation for it to be a coincidence. I have experienced respiratory problems, with my nose be seeming to be constantly blocked. Furthermore the mixture of different smells makes me and other visitors feel nauseous, prompting them to ask “how do you put with it?”. It seems I am left with no choice, I want this letter to be put on record as I can only see things getting worse. I am fearful that this problem may force me to leave a job that I enjoy and have been doing for years.”
15. On 3rd April 2002, Hirose wrote to IM Properties plc in the following terms, which made it clear that Hirose did not regard Crownhill as a normal industrial estate:-
“… I write to you … to seriously question the decision of the owners of Crownhill Business Centre [CBC] to allow a company, such as Peak Ingredients, to operate food processing of their specific nature from such a premises.
CBC has always been considered, as being a prestigious Business Centre complex, as opposed to an industrial estate, and therefore has attracted Office, warehouse distribution and high-tech light manufacturing companies.
It was aptly described as such in the launch proposals back in the late eighties that were submitted to the Hirose Corporation [Japan], and was a major factor in our selection of the complex in setting up our UK headquarters.
One has only to look at the exterior of the buildings and materials used in construction see that the units to indeed fit the use as was described.
Even a company similar to Peak Ingredients could suitably fit in at CBC, providing that there was not any internal or external contamination and more importantly, their processes did not infringe the operations of their neighbours.
This cannot be said of Peak Industries whose pungent odours contaminate our premises to the point of smelling like an Indian curry house.
We have also grave concerns that such airborne odour contamination may also be carrying other contaminates that could be harmful to our products and which may lay undetected until sometime in the future, by nature of our product.
Since occupation of No 20 by Peak, I have had three members of my staff feeling nauseous and to whom I have had to send home, and in parts of our premises I have experienced these feelings myself, not to mention the smell on ones clothing.
We have very high profile Global clientele such as IBM, Motorola etc. and some of those visitors to our premises, have remarked on the smell to the point of our embarrassment. …
We have not taken up the matter of odour contamination with Peak Ingredients, because we can only make an assumption that they are using the premises in a manner expressed to the owners, during the lease assignment application.
We therefore deem the responsibility to lie squarely at your door, for there have not been any consultations with us, prior to and during lease negotiations.” (My emphasis).
16. IM Properties replied on 16th April 2002 disclaiming responsibility, and suggesting that the issues should be referred to the Environmental Health Officer and also that it would be sensible to have a meeting with Peak. IM Properties pointed out that the use of the premises by Peak was in accordance with planning permission.
17. IM Properties’ first suggestion was taken up, and on 29th April 2002 the Senior Environmental Health Officer wrote to Hirose, advising that it should gather information and enclosing diary sheets to be completed for that purpose, to be returned to her. Various other suggestions were made, including attempting to resolve matters with Peak.
18. An Odour Diary Sheet (which I assume is what was sent in the letter of 29th April) was completed, it is not clear by whom. This showed that a nuisance consisting of a strong “curry” odour had been present throughout each working day between 22nd March and 26th April 2002, and was dated 26th April 2002. The following comments were made:-
“Comments:
1. We noticed odours this week and on the 22nd it was noticeably worse. Caroline Redwood and myself visited the previous premises of Peak Ingredients and spoke to neighbouring companies. One in particular was very pleased that they had gone and said that although they were really nice people the smell, especially during the summer months, was really awful.
During the month that followed staff and visitors were complaining of feeling ill. Asthmatics were having difficulty breathing and reported using inhalers more frequently. Sinus problems, severe headaches and dry throats were also common complaints.
2. Letter sent to our Landlords regarding, amongst other issues with Peak Ingredients, the odour. Subsequent reply received 16th April.
3. Odours penetrated throughout building worse than ever, decided to call Milton Keynes Council — Environmental Health Dept.”
19. There is also another unsigned internal note relating to a complaint by the auditors, who had “the same symptoms as our own members of staff i.e. dry throat, feeling sick and a feeling of blocked sinuses”.
20. Another note refers to this again and continues:-
“The Environmental Health Dept was called on the 26th and the following Tuesday a letter and a diary sheet were received. The diary sheet has to be filled in (when the smell is as its worst) and sent back to the EHD.
There seems to be a particular spot in the warehouse where it always smells. Notably in the corner by the kitchen/toilet door.
May 7th brought us what smelt like strong paraffin throughout the building. Wendy asked if she could have a plug in air freshener or somewhere else to work as the smell was making her feel really sick. The smell was worse on the back stairs, back corridor, coffee room; downstairs toilets and kitchen area; distribution office, reps office, warehouse and warehouse office.
The air freshener helped relieve the smell in the distribution office but Wendy reported that she went home feeling sick and with a really bad headache.
Trevor was also suffering and reported, on May 8th, that he had been ill all night. He had to be sent home on Wednesday 8th as his breathing was very bad. He also had “streaming eyes”. Although he has ongoing health problems they have been considerably worse since Peak Ingredients moved into next door. We are awaiting letters from both his GP and the eye specialist based at MK hospital to back this claim up.
May 9th Trevor still not well and phoned in saying he would be off again today. The paraffin smell was still in the building (during the morning) but not as strong. The smell of cigarette smoke was present on the upstairs landing at 12.15 and the paraffin smell was detected, stronger once again, during the afternoon (2.30).
May 10th Trevor off sick again and has an appointment with his GP. Curry odours detected in the reception area, upstairs and downstairs toilets and kitchen areas, distribution office and warehouse. Slight paraffin smell still lingering on back stairs. Dave complained of a severe headache and went home. The smell of cigarette smoke was once again present on the upstairs landing at 12.15.”
21. A further note dated 10th May 2002, signed by Wendy Leigh of the distribution office to Howard Jones, the office manager, read as follows:-
“I need to bring to your attention the situation with regards to the odour from next door and my office. Since Peak Foods moved in next door there has been a continuous odour in my office, that has been at best offensive. However Tuesday (7th May) I arrived to find that there was an overwhelming smell that I initially thought was Gas like.
This smell was noticed by other members of staff, who thought the smell resembled paraffin, it was so strong that I asked Sue whether we had available either a strong air freshener or whether there would be another office that I would be able to work in. Unfortunately there was nowhere for me to move to and although Sue brought down a plug-in Air freshener, the smell was so strong that it only succeeded in creating a more sickly smell!
The end result was that I left work feeling nauseated and with a headache.
Could you please look into whether there is anything we are able to do regarding this smell?”
22. A note by Sue Wallis (Human Resources) referred to Mr. Bradley having been absent for much of the previous week, but described the fumes as strong “paraffin type” fumes.
23. However, the “overwhelming” paraffin smell in that week probably had a different origin. On 15th May 2002, the Property Surveyor of IM Properties wrote to Hirose, reporting on a meeting which he had had with Lewis Martin of Peak. There had been a paraffin smell which was nothing to do with Peak’s processes. He acknowledged that there was a definite odour present in Hirose’s premises emanating from Peak’s unit, but it was difficult to gauge its extent because of the paraffin smell. He had asked Lewis Martin to contact Hirose and go round Unit 22. Hirose responded by saying that they did not think that the odour issue was getting the attention it deserved; it had caused serious distress to their staff (including the writer, Mr. Howard Jones, the General Manager) and had caused absenteeism. He threatened proceedings unless the matter was resolved by the end of June.
24. There is also a note made by Mr. Howard Jones for a planning meeting relating to the still unresolved application concerning the erection of the flour silo, which includes the following passage:-
“Crownhill Business Centre has always been regarded as a prestigious office and warehouse development and up until now has enjoyed that status. We do not believe that a food manufacturing plant is suitable in this environment.
We have experienced obnoxious airborne odours, inside our company, since 22nd March and believe that with the installation of the flour silo the production at Peak will be greatly increased and therefore the risk of contamination of both dust and odours will continue to cause a problem to us.
Members of staff and, to our embarrassment, visitors have complained of the smell and of it making them feel ill. We have on a couple of occasions sent people home. This is a particular problem for asthmatics as the odour affects their breathing. Clearly this cannot continue …”
25. There is then an internal memorandum written by Mr.
“Main complaint (by Hirose) is of a curry-like odour in the reception area and the warehouse, close to the party wall with Peak Ingredients. This is claimed to be worse in hot weather. There are also concerns about the contamination of electronic components with dust from Peak Ingredients, and the impact of the odour during important client audits/visits. … Warehousemen is asthmatic and diabetic and claims his symptoms have worsened …”
26. He said that there was “a good standard of housekeeping at Peak with no visible dust accumulation …”. Odour was detectable inside the warehouse”. As to Hirose he said only that there was “a faint odour in the reception area”.
27. His conclusion was as follows:-
“There were no dust emissions or odours detectable outside the units during my visit. There was a faint odour in the reception area of Hirose but not in the warehouse. If the odour is derived from Peak Ingredients, it must be getting through the party wall. …
Nuisance investigation diary records have not been returned … it is my opinion that this is a neighbour/landlord dispute and any action would need to be taken as a private nuisance by the complainant …”
28. Mr. Parrish made another visit on 25th June, and on 2nd July wrote to Hirose in the following terms:-
“I am writing with regard to the above complaint and my visits of … 11 to … and … 25th June. I can confirm that a garlic-like odour was noticeable in the reception area, upstairs toilet and back stairs. The odour was not present in the offices and warehouse during my visits but I am informed that it is detectable on occasions in certain areas of the warehouse adjacent to the party wall …”
29. Therefore, Mr. Parrish had not himself, on either visit, noticed any smell except in relatively small parts of Hirose’s premises. In the letter, he concluded that he did not think that the odour was causing a statutory nuisance and suggested that Hirose should keep records in case they decided to take their own action under section 82 of the Environmental Protection Apt 1990.
30. He wrote a similar letter to the occupier of Unit 18. Significantly, the complaint from Unit 18 was that there was a detectable smell only when the fire door of Unit 18 was left open. This suggests that the insulation between Units 18 and 20 was more effective than it was between Units 20 and 22.
31. The fairly low key comments in Mr. Parrish’s letter can be contrasted with a fax sent by Sue Wallis to the landlords — probably before Mr. Parrish’s letter had arrived:-
“Hope you can do something to help us as the smell is really awful … the officer that eventually came out to us left the building coughing and his colleague said he wouldn’t like to work with the smell for long “okay for 5 minutes” were his actual words!”
32. In the intervening period, diary sheets were kept. For the period 17th to 31st May 2002, the entry was again “strong curry odour” throughout working hours, predominating in reception, rear staircase, warehouse, inner hallway and distribution office and “although not as bad” also detected in other areas.
33. For the period 5th to 28th June, there were similar entries, although with slight variations. For 11th June, the day of the first of Mr. Parrish’s visits, the entry was “strong odour” and for 25th June, the date of the second visit, it was “strong garlic” back stairs, upstairs, kitchen and toilets. There was a comment that “two individual visitors commented on the awful smell”.
34. So far as I can tell from the papers, little further was done for a few months. There is a reference in an IM Properties letter to Sue Wallis having acknowledged, when complaining of a garlic type smell on 23rd October 2002, that the situation had improved. However, the diary sheets record continuing complaints within Hirose. The sheets for July 2002 record strong odours daily in the warehouse, kitchen, toilets and back stairs. In August, they recorded strong odours, sometimes in these areas, sometimes in “all” or “most” areas of the office. For the next 4 months, they recorded “strong”, “detectable” or “slight” odours, without saying where.
35. The sheet for January 2003 records mainly strong odours, largely in the reception area. There is a note against one day, 2nd January, that “by 2.30 smell had penetrated throughout the building”. This may be significant, in that it suggests that penetration throughout the building may have been rare. For February and March 2003 the sheets show slight, detectable or strong odours, without specifying where. There is a note for 12th March referring to an outside driver having complained, and to a suspicion that the smell had penetrated Hirose’s boxes.
36. The next external event was a meeting on 3rd April 2003 between Howard Jones, Caroline Redwood and Sue Wallis of Hirose and Jay Cable of ING Real Estate, which had become the landlords a month or two earlier. Relevant passages from the notes of that meeting, taken by Ms. Wallis, are as follows:-
“Howard opened the meeting by outlining the problems relating to obnoxious odours emanating from Number 10 Vincent Avenue, Crownhill Business Centre, Crownhill, Milton Keynes (the company next door Peak Ingredients Ltd).
The main problem areas are as follows:
• Members of staff complaining of feeling unwell. Typical symptoms are headaches, sinuses, nausea, dry throats and in the case of Trevor Bradley (Warehouse Supervisor) aggravated asthma; chest infections and breathing problems.
• Odours affecting clothing and office furnishings.
• Delivery driver complaining that upon opening his van the odours from our boxes had contaminated his van.
• Visitors complaining of feeling ill and/or asking what the dreadful smell is after being in the building for a short time.
Howard continued that the problem is not consistent, some days being worse than others, some days just a trace of an odour lingering from the day before. Usual odours appear to be curry and garlic.
Jay said that he was aware of the problem before they took the lease over and understands the problems we have and that MK Council are not interested. He went to say that Peak Ingredients make food coatings and it would appear that flour and herbs are somehow penetrating through to Number 22.
Howard asked how we could prove that the problem exists adding that people working inside Peak Ingredients may be comfortable but their neighbours are definitely not. He went on to say that Hirose were attempting to find a company to come in and test the air quality. He understands that in reality it is not Peak’s fault as they had come in all good faith. He claimed the fault to lay in the hands of the previous owners. Hirose have been on the Crownhill site since 1989 a site which had always been marketed as high prestige office/warehouse buildings. These buildings had not been designed for the processing of food and Peak Ingredients should not be there.
Jay replied that he understood and the use of the United Kingdom had been let within the guidelines of the lease.
Caroline felt that the agents hadn’t carried out full checks on what Peak Ingredients actually made prior to their moving in adding that she had visited ex-neighbours who were glad to see them go saying that the odours, especially in the summer, were terrible.
Jay said that the only checks any company would carry out would be usual references etc and what companies actually made or did would not be checked.
Howard pointed out that this block looked different and a bit special from other estates. He stated that this estate looked like a business centre and was clearly intended to attract businesses such as Hirose. He added that Trevor was really suffering and couldn’t go on much longer and if he had to quit it would be likely that we would have a tribunal case on our hands. Continuing Howard said that something had to happen. Peak Ingredients may have complied when they moved in but it was felt that they had not been honest with what they were doing. He reminded Jay that he had already reported this to him in a meeting before ING Real Estate took the leases over and told him then that there would be problems. He added that it was already costing Hirose a fortune in Solicitors fees, as nothing had been done and we had had to appoint our company lawyers to help, as well as sick pay. Solicitors fees alone, to date, amounted to some £12,000+.” (My emphasis).
37. Mr. Cable appears to have had a separate meeting with Peak on the same day, and this resulted in Peak’s letter to ING a few days later:-
“Since moving to these premises in March 2002, we have experienced numerous complaints with regards to our manufacturing activities. From the first day of arriving here complaints were made regarding the food products that were being unloaded into our warehouse area There was some dust blowing around initially, but this was soon corrected once everything was established in our warehouse, however, we gave serious thoughts to the complaint made to the then landlords agents, and in fact we positioned our manufacturing plant purposely away from the partition wall, in an effort to ensure the minimum of dust is that area, we also had both our packaging and blending rooms enclosed with partition to assist with this general theme.
It was always out intention to install bulk handling for our flour to cut down once again on the amount of bagged product being used, so as once again to eliminate as far as possible any air born dust.
This insulation work is now complete and the reduction in air born dust has been shown to very significant. We have spent considerable sums of money on devices to seal and remove as much dust as is possible. We are currently working on the last phase of this by way of installing further dust collection systems.
We are aware that our immediate neighbours Hirose Electric are still not happy with our operation, but we must say that the landlord’s agents at the time of negotiation for the premises were aware of the type of business we are in and the lease was agreed by all parties having regard to this knowledge.
After each complaint from Hirose, which I must say has never been made directly to us, we have tried to contact their Managing Director in an effort to try and solve the problems, and he has never returned any phone call we have made requesting a meeting, we have always been meet with a statement from his secretary saying he was not available.
Quite frankly, we have done all we can to try and satisfy the issues raised by our neighbours, apart from the dust extraction we have mentioned above, we are not prepared to spend any more money trying to resolve complaints that our neighbours Hirose Electric will not even discuss with us.” (My emphasis).
38. The reference to the installation of further dust collection systems related to an extraction system which Peak had promised the Health & Safety Executive in February 2003 was to be installed for the protection of its employees, but which was not in fact installed until sometime in 2006. The purpose of this was to reduce dust at Peak’s premises. It is clear from Mr. Parrish’s observations (see §26 above) and from a Health & Safety laboratory report dated 3”1 September 2003 that there was no substantial escape of dust from Unit 20 to Unit 22. Although there was substantial debate about when this system should have been installed and indeed Peak was prosecuted for its failure to comply with an improvement notice served to protect its employees, I do not think that this has any bearing on the issues in this case, which relates to the escape of odours. They were not carried on airborne dust, and the installation of the extraction system made no different to Hirose’s perception of the odours.
39. The diary sheets continued. In April 2003 on a majority of days the odour as recorded was “strong”. There was a note that 7 people (including 4 visitors) had complained of the smell and of “burning sensations”. In May, the odour was “strong” every day and the notes say that it was getting stronger: Monday mornings, on which previously the odour had been slight, were now bad. In June and July there was a preponderance of “strong” over “slight”, on 8th July so bad that the upstairs kitchen and toilet could not be used. Also “symptoms included: headaches, dry lips, sore throat and itchy eyes”. In August and September 2003, again there was a preponderance of “strong” odours. There are then no sheets between October 2003 and January 2004.
40. Mr. Howard Jones also wrote a note on 17th April 2003:-
“To whom it may concern
As Operations manager of the company, I have had many complaints about the pungent and nauseating odour entering our premises, which is emulating (sic) from the premises of No. 20 and as occupied by Peak Ingredients.
I am sure many of my staff has their own personal tale to tell about the effects of this odour, with some more serious than others.
My objective here is to describe the personal impact on my general health over the past year, although to be honest I cannot prove that it is as a result of this problem, but it seems rather coincidental that this has happened since Peak Ingredients became operational.
Although a sufferer from sinus problems, it is many years since I had any form of discomfort. In the past year I have experienced blocked sinuses on a number of occasions and more recently an infection, which required antibiotics.
Since October of last year I have had four out breaks of eye irritations requiring medical prescription and the cause remains unknown.
When the odour is at its nastiest, it makes me feel sick and more recently, if I spend a number of continuous days in the office, I end up with a dry and sore throat, apart from going home with smelly clothes.
Last week I was off with an unrelated medical illness, but prior to that I noticed this sore throat, which immediately cleared up during my week’s confinement at home. On returning to the office this week, my dry and sore throat has returned.
I am very concerned of the long-term health effects of this continued exposure and the health and safety of my staff as well as myself are paramount to our duty to care.
Despite my complaints to the owners [ING Properties] over the past year the matter remains unresolved by Peak Ingredients.”
41. In June 2003, another Health & Safety Inspector, Julie Wood, visited Hirose’s premises in response to a complaint by Mr. Bradley. She said that odours were “noticeable” within both the office and the warehouse, and that this could have an adverse effect on someone with a pre-existing respiratory condition, such as asthma or bronchitis. However she saw no accumulation of dust near the adjoining wall.
42. On 9th July 2003, Caroline Redwood, Carole Holmes and Sue Wallis wrote to Mr. Jones:-
“The odours from next door were really obnoxious yesterday so much so that we have all been suffering from nauseous, dry throats and itchy/sore eyes and headaches. The smell was still present on our clothing and skin all evening after leaving the office.
The smell was really bad (garlic) in the upstairs kitchen and toilets making it impossible for them to be used during the afternoon and had also penetrated through to the offices, backstairs and landing making working conditions unbearable.
Although we appreciate all that is being done, by the landlords, to resolve this problem we are sorry to advise you that if these odours continue to be as strong as today we will be unable to continue with our duties and will have to leave the premises and go home until the smell has disappeared.”
43. In July and August 2003 there was some negotiation between Hirose and Ing relating to a proposal that Hirose surrender their lease and take a new lease on a different unit in the Crownhill Industrial Estate. This depended on Peak taking over Unit 20, which they decided they were unable to do, and it came to nothing. In responding to this news, transmitted by ING, Mr. Howard Jones wrote that the “real sadness” was the likelihood of continued suffering from the odours emanating from Peak’s processes.
44. I have referred earlier to the dust extraction system eventually installed in 2006, with no noticeable effect on the odour problem. Hirose’s expert witness, Dr. Purnell, takes the view that the extraction system should have incorporated additional features to remove fine dust particles which, in the absence of these features, continued to migrate to Unit 22, carrying odour and particles of irritant terpenes (volatile chemical compounds present in some spices and pepper oils). However, as Peak’s expert witness, Mr. Peirson, shows at §3.5 of his report, the Health & Safety Laboratory Report of 3rd September 2003, commissioned by Hirose, reveals neither unusual dust concentrations at Hirose nor, within the collected dust sample, any significant level of terpenes or other harmful substances.
45. In January 2004, ING instructed builders to carry out ceiling works to the dividing wall, but subsequent investigation (in early 2006) by Mr. Sneath of Silsoe Odours Limited, who were engaged by Peak, established that these works were ineffective, in part at least because some cracks had not been sealed at all, and because sealant had not been applied completely to seal other gaps.
46. Shortly after this work had been completed, on 3rd February 2004, Caroline Redwood reported to Howard Jones in the following terms:-
“Just to inform a little more on this matter. Yesterday morning on entering the building there was a slight odour present in our reception area/stairwell but it became much more pungent throughout the day …
It was absolutely rank between 4pm & 5.30pm when I left, in the upstairs kitchen/ toilet, stairwell and receptions areas. I left the building feeling quite nauseous with a headache caused by the odour penetrating my sinuses, which took several hours to clear.
It was definitely not a smell which could have been lingering in the building already but more like the current days production run.”
47. The diary sheets resumed in February 2004, recording mostly strong odours, mostly in the same areas. One visitor commented that it was as if a packet of onion rings had been opened. The last entries are for the 1st half of March 2004, mostly slight odours but “strong”, “very strong” and “lingering strong” on the last 3 days recorded. On 16th March it got “progressively worse” and the kitchen and toilet areas were unusable. Caroline Redwood spoke to Peak about it. The next diary sheets were in late 2005.
48. After the ineffective work by the landlords, nothing appears to have happened until early December 2004, when Mr. Howard Jones e-mailed Mr. Cable of Ing, referring to the “dreadful odour” which Hirose had had to endure at great cost in legal fees, manhours and staffs comfort, health and dry cleaning bills, and suggesting a discount in the rent. In response, Ing offered a new rent payable from the rent review date, reflecting a discount of about 4% on what it considered might have been asked.
49. At about the same time, Hirose complained again to the Health & Safety Executive at Milton Keynes District Council, but they replied on 1st March 2005 rejecting the complaint, and referring back to Mr. Parrish’s letter of 2nd July 2002. They visited the premises later in the month, but this did not result in any action.
50. By July 2005, as appears from Hirose’s surveyors’ correspondence, ING had offered to settle at a lower rent (£6.75 per sq. ft. as opposed to £7) than previously suggested; the surveyors considered this to be reasonable. It is not clear whether the problems with Peak had affected the rent offered.
51. On 3rd August 2005, the Health & Safety Executive served an improvement notice on Peak requiring it to provide a suitable Local Extract Ventilation System (“LEV”) for the packing stations, for the protection of employees working with various substances which were hazardous to health, including some respiratory sensitizers. Peak did not comply with this within the specified time limit and were in due course fined. But as indicated at §38 above, when they did comply with it, late in 2006, this made no difference to Hirose.
52. On 1st November 2005, Dr. Purnell reported to Hirose, having visited the premises 10 days earlier. He (like Mr. Sneath a little later on) noticed that the work done at the premises was ineffective and also an unpleasant peppery garlic type odour. Apart from that, his opinion as to the extent and frequency of the odour problem was based almost entirely on what he had been told by Hirose. He makes it clear in his report that, when he visited the premises on 21st October 2005, normal processes were not operating at Peak’s premises, and that he was not able to experience the odour problem first hand. He recorded that Hirose employees he had spoken to had said that the odours could occur on a daily basis and then be absent on other days. He put this down to Peak not always running their food additive and coating process operations, but it was the evidence of Mr. Lewis Martin (which I accept) that these processes were run daily, and continuously. Therefore the variations in the intensity of the odours must (as Mr. Peirson says at §3.10.2 and 3.10.3 of his report) be due to other factors, such as outside atmospheric conditions or the strength and direction of the wind.
53. For December 2005 only, Hirose kept a scorecard, ranging from 1 for “hardly noticeable” to 10 for “highly objectionable”. This showed a “3” for one day for the office, and scores ranging from 6 to 10 on 9 days for the warehouse.
54. On 24th January 2006, Hirose’s solicitors wrote to the Environment Directorate of Milton Keynes District Council, and to Peak and Ing. The letters to Peak and Ing were in effect letters before action, and the letter to Ing (copied to the Environment Directorate and to Peak) set out the history of the matter and summarised Dr. Purnell’s report. It also recorded the continuation of the odours emanating from Peak’s premises since November 2005.
55. Dr. Moorhouse, who was Mr. Parrish’s team leader, replied on behalf of the Milton Keynes Council’s Environmental Health Department on 2nd February 2006, stating that there was no evidence of an odour problem sufficient to cause a statutory nuisance in the area, and that their evidence suggested a “low level odour in that part of the building occupied by Hirose …, specifically in an inadequately ventilated toilet, reception area and back stairs”. He pointed out that, unlike Dr. Purnell, Mr. Parrish had visited both premises more than once, at times when Peak was operating as usual.
56. On 6th February 2006, DLA Piper replied on behalf of the landlords rejecting Hirose’s solicitors’ allegations of breach of the covenant to permit quiet enjoyment. The latter referred to the estate as an “industrial estate”. It is unnecessary to deal with this letter in detail. Hirose’s solicitors responded to it on 28th February 2006.
57. On 21st March 2006, Peak’s then solicitors wrote to confirm that they were having a report prepared by Mr. Sneath, who had 15 years’ experience in odour measurement and consultancy, having worked as Head of the Odour Laboratory at Silsoe Research Institute. They suggested a visit on 29th March 2006, but Hirose’s solicitors wrote on 27th March 2006 to say that Hirose was suffering very badly from the odours in question on that day, and suggested an immediate visit, but unfortunately Mr. Sneath was unable to come. In his report, he said of his visit on 29th March 2006 that the spice odour which was apparent within Peak’s premises was also apparent on entering the downstairs passage of Unit 22 leading to the toilets, and persisted throughout the toilets and into the warehouse. The strength varied throughout the warehouse, being stronger nearest to the rear fire exit door. He did not say whether the odour was present within the offices. He reported in detail on the deficient ceiling and the cracks in the party wall and said that the most likely route for high concentration aromas was via leaks in the party wall which could occur only if there was a passage of air through it.
58. He advised that this could be done either by sealing the existing cracks and gaps, but more robustly by constructing a new internal wall 10-20 cm from the existing one to provide an airtight moisture-proof barrier, with a fan to extract possible residual odours from the airspace between the new and existing walls. Thus, there should be a new wall providing an effective seal between the Peak workspace and the cavity wall, with a strong negative pressure to draw air from Hirose through the remaining gaps and cracks in the wall. He recommended a positive pressure ventilation system on the Hirose side.
59. He also reported that he had been told by Mr. Narita of Hirose that he had never visited Peak’s premises, and by Mr. Lewis Martin that Hirose had not responded to invitations to visit: he recommended efforts by both parties to mutually solve the problems between them.
60. Mr. Sneath’s description of an “ambient stressor” in his report is also significant:-
“3.1 The build up to annoyance and complaints
Once exposure to odour has occurred, the process that leads to annoyance, nuisance and possibly complaints, involves many psychological and socioeconomic factors. Some of these factors are described below.
Exposure to an odour that causes a negative appraisal is considered an “ambient stressor”. Odour detection and appraisal take place in a matter of seconds or minutes, and leads to a decision on the significance of the perception and magnitude of stress. This is followed by a second process of coping, in which the individual adapts to the situation by two types of behaviour:
a) Problem-focused coping behaviour — attempts to control the problem by removing the cause of stress, e.g. closing windows, making complaints etc.
b) Emotion-focussed coping behaviours — no attempt is made to change the unpleasant environment; instead the subject changes their emotional response, e.g. denial, “Zen”, seeking distractions etc.
People’s attitudes towards the source, the inevitability of exposure and the aesthetic expectations regarding the residential or work environment are other less tangible factors that are involved. Once the balance tops and a particular source of malodour becomes a nuisance to an individual, it is very difficult to reverse the process. What used to be a faint odour can then become a signal for annoyance. Once the first complaint has been made, the problem is much more serious for all those affected than before.
The work of Cavalinii on characterising annoyance and nuisance concluded:
The association between a particular odour source and annoyance in the mind of an individual with a history of annoyance due to that source is strong and long lasting. This association can persist for years and may cause annoyance at lower exposure levels than would be the case for individuals with no exposure history for that ambient stressor.
Annoyance in an individual is apparently determined by a cumulative perceptual and appraisal history over long periods of time, or even a lifetime. Memorable episodes or peaks, where appraisal was most negative as a result to high intensity and unfavourable behavioural context appear to determine the interpretation of this history in memory.
Nuisance is not caused by short-term exposure, and it is not alleviated be relatively short periods (months) of absence of the ambient stressor. Nuisance appears to be caused by long-term intermittent exposure to odours.”
61. A copy of Mr. Sneath’s report was sent to Hirose’s solicitors and to the landlord’s solicitors on 12th April 2006. The landlord’s solicitors responded on 25th April 2006, suggesting that the remedial steps proposed by Mr. Sneath should be undertaken, and Peak’s solicitors also expressed the view that there was every chance that matters would be resolved if the suggested steps were taken.
62. On 20th June 2006, Dr. Purnell and Mr. Sneath discussed the proposal put forward by Peak’s ventilation engineers, to which I need not refer in detail, and also Mr. Sneath’s suggestions. As to these, their agreed note reads as follows:-
“Dr. Purnell and Mr. Sneath discussed Mr. Sneath’s own suggestion (from his previous report) which was to put up a partition wall next to the Hirose wall (on the Peak side) and then extract the void (that is place the void under negative pressure). Dr. Purnell and Mr. Sneath agreed this will have the effect of extracting any odours that may pass into the cavity and also pull air from the Hirose side into the peak cavity thereby preventing odours from passing through the partition wall. It would not then matter if the partition wall is not completely sealed off from Peak although it was agreed that ideally more effort should be made to seal the partition wall particularly to ensure the effects of ambient pressure (due to wind) are contained within the Peak premises.
Dr. Purnell mentioned that in Mr. Sneath’s report he had acknowledged that there have been health complaints about the odours from the Peak premises but he considered the odour to be an “ambient stressor” whereas Dr. Purnell considered it to be a respiratory irritant and a health risk — particularly to individuals who may have an existing respiratory condition which will be further exacerbated by exposure to respiratory irritants (such as spice dust and odours).
Dr. Purnell explained to Mr. Sneath that he (Dr. Purnell) was not in favour of only using a filtered extraction without further sealing of the partition wall. Mr. Sneath agreed this point but felt that Hirose should also action this sealing from their side as well as Peak. However, in order to ensure control of an odour penetration through the partition wall Dr. Purnell would want to see the existing partition wall completely sealed off then the additional partitioning erected and then the void extracted with a flow of clean air passing through it which is then filtered (using charcoal) prior to its emission to atmosphere. The provision of charcoal filtered extraction on the air taken from the mixing and product handling areas in the Peak premises will serve to further assist in reducing dust and odour burden into the Peak premises.
Dr. Purnell and Mr. Sneath agreed that it would be prudent for any proposal for a partition void extraction system to be reviewed and approved by a structural engineer to ensure that no detrimental stresses are going to be put on the building’s structural walls by the installation of a void extraction system.”
63. Dr. Purnell’s report of 30th June 2006 records the following agreement with Mr. Sneath:-
“Dr. Purnell AND Mr. Sneath agreed that:-
• the installation of a filtered extraction ventilation system to control dust and odours by passing the extracted air through dust and charcoal filters and reintroduce the cleaned air back into the workplace was a feasible option provided the filtration system was completely effective at all times — and it was agreed that this could not be guaranteed.
• the erection of an additional partition wall on the Peak side and extracting the partition void would prevent odours from passing through the partition wall to the Hirose side was a feasible solution but in order to be completely effective the existing partition wall should be sealed first, particularly to ensure the effects of wind are contained within the Peak premises.”
64. Dr. Purnell’s concluding opinion was in effect that Hirose should press Peak to carry out all this work.
65. There was then some further discussion in correspondence during August 2006 between Ing and Hirose of a possible relocation by Hirose, but this came to nothing.
66. Dr. Purnell visited the premises again on 7th January 2007, and noticed the same unpleasant odour. He spoke to Mr. Cullis, who had been employed for a month as sales manager, and had “smelt spices on some days”. Staff had complained of irritation to their faces and around their eyes, and of sinus problems.
67. Then on 26th September 2007, Hirose complained again to the HSE, and Mr. Parrish responded by referring to his view as set out in July 2002.
68. On 23rd October 2007, Mr. Cullis, by now the General Manager, wrote to Ing to tell them that Hirose had made a firm decision to vacate the premises and that they would soon be taking up occupation elsewhere. He complained of the lack of urgency on the party of Ing in dealing with the matter. As already noted, by this time, apart from minimal storage, the warehouse part of the premises were not being used, and the number of employees had diminished considerably.
69. In November 2007, the landlord carried out further work to the wall, but by then Hirose had decided to vacate the premises, which it did on 16th May 2008. Hirose leased office accommodation in the Caldecote Business Park on 3rd June 2008. After inconclusive correspondence, proceedings were commenced on 27th March 2009. Hirose claims damages to compensate it for the cost of leasing alternative accommodation and an injunction.
70. The following observations arise from later site visits:-
(a) Mr. Peirson on 19th January 2010. He noticed only a faint herb/spice odour in the warehouse and a more distinctive one in the back stairwell.
(b) Mr. Peirson on 29th January 2010. On this occasion, the odours were less intense in the back stairwell, faint in the warehouse area, and there was no odour elsewhere.
(c) Dr. Purnell on 296 January 2010. He noticed a spice smell on entering Hirose’s premises, inside the offices and the warehouse area.
(d) My own site visit during the trial. I found that there was quite a strong smell throughout Peak’s premises, including the upstairs office, where there were 2 employees. There was a slightly less strong smell in the warehouse section of Hirose’s premises, and in the kitchen and toilet areas.
(e) In relation to the above, it is necessary to remember that, if the offices had been occupied, the smell might have permeated other areas, since the doors would not have been kept shut. However, this would not account for Mr. Peirson’s observation that the smell in the warehouse was only faint.
71. Turning to the evidence of Hirose’s witnesses, I will take them in the order indicated by the witness time line helpfully supplied by Mr. Holland. There were two witnesses who were there from the first, Mr. Bradley and Wendy Leigh, to both of whom I have already referred.
72. Mr. Bradley had worked for Hirose as a warehouse supervisor since June 1996. He suffered from asthma and the medical certificate supplied by his doctor, Dr. Bunting, showed that it had become somewhat worse at the beginning of 2002, that is before Peak occupied Unit 22. Nevertheless, his evidence was that his condition worsened following Peak’s arrival, requiring him to change medication, seek medical advice more frequently and take time off. He said in cross-examination, and I accept, that both Dr. Bunting and his consultant had told him that his asthma symptoms had increased and that this was probably due to the odours from Peak.
73. He also said that he was responsible for the scoring sheets (see §52 above). Where days were left blank, this was either because it was the weekend or because there was no odour on that day. He had been told to score only for his own department, not for the office. However, this still leaves a situation in which he recorded odour in the warehouse on a minority of 9 days and whoever was responsible for scoring elsewhere did so on only 1 day.
74. In his witness statement, Mr. Bradley also referred to another member of the logistic staff, Dave Scargill, experiencing sore throat and headaches, and having to leave work early quite often. However, part — but not all — of Mr. Scargill’s complaints relate to the paraffin smell in May 2002, which, so far as one can tell from the contemporary evidence, was not caused by Peak.
75. Wendy Leigh’s evidence was along the same lines as her note. She occupied two different offices at different times, one in the front of the warehouse and the other upstairs, in each case with no immediate ventilation. She also went to different parts of the unit every day, to speak to colleagues or take paperwork round. Her evidence was that “there was no escape from the odour”, which was strongest in the warehouse but was also elsewhere in the unit. She said that she frequently left at the end of the day with a dull headache and sore or itchy eyes, and painful sinus.
76. Samantha Roper is a technical marketing executive, and was employed by Hirose from 22nd April 2003. She said that, from the first, there was a strong spicy smell in the air coming from Peak’s premises, which was present in all areas of the building. She said that in July 2003 she developed an irritating long term cough, shortness of breath and itchy dry eyes, which persisted, with an interval of about six months, until she began to use inhalers from July 2007. However, after the move to different premises, she no longer used the inhalers and she has been clear, apart from two periods of about three weeks which went away without medical treatment. In cross-examination she said that the strongest smell was in certain areas, near the toilet and the kitchen, but that it was also elsewhere with different levels of intensity.
77. I accept her evidence, but, in view of the absence of any supporting medical evidence, I do not think that it is proved on the balance of probabilities that her symptoms were the result of the odours emanating from Peak’s premises. It may be significant that there was a period of 6 months when she did not have a cough, and that there have been two not unsubstantial periods when she has had a cough since leaving the Crownhill Industrial Estate.
78. Next, there is a witness statement from Mr. Narita, who was the General Manager of Hirose between March 2005 and September 2007. He says that he noticed the pungent smell from the start, on some days not too bad but on others leaving him feeling nauseous and suffering from dry and sore eyes and throat. Many staff complained of similar problems. Between February and September 2007, he had an irritating skin condition, which cleared up after his trip to Japan, but again, in the absence of medical evidence, I do not think that it is proved on the balance of probabilities that this was due to Peak’s products. Mr. Narita had been working in Unit 20 for some eighteen months before it developed. He did not attend the hearing, and was therefore not cross-examined.
79. There were then two witnesses who worked at Hirose from 2006 onwards. The first was Yoko Ono Stark, an employment consultant who dealt with, amongst other issues including the reorganisation of Hirose’s European operation, with the problems relating to Peak. By the time she was employed, in June 2006, Hirose’s operation at Milton Keynes was being run down. There were about 15 employees, only 2 of whom were in the warehouse. 2 rooms adjoining the warehouse space were sublet to another company for a period. Warehousing was being transferred to Amsterdam and, apart from minor storage, ceased in Milton Keynes in about April 2007. From then on, the warehouse space was redundant.
80. Her evidence, in so far as it related to liability, was that she noticed a pungent and unpleasant spicy smell everywhere, from the first day. She began to have sore and irritated eyes after a few weeks. On some days the smell was not too bad, on others it made her feel sick. Air freshener and potpourri helped, but only for a short time.
81. Ms. Stark’s office was further away from Peak than any other part of Hirose’s premises. She said, in answer to me, that the smell did reach her office, but was largely dispelled if the windows were opened. However, she had to go to other parts of the premises where it was much worse, especially in the toilet area. Further, she was aware of all the problems because she had been given the files by Mr. Narito, and the job of dealing with the resulting staff health issues, of which he had been fully aware. These included the problems experienced by Trevor Bradley and Samantha Roper.
82. She also said that at the end of 2007 and in early 2008 she had nose bleeds several times a month, for the first time as an adult, and attributed this to Peak’s products. The smell was so strong at times that it irritated her nose. I do not doubt her evidence as to the strength of the smell, or as to the nose bleeds, but I am not satisfied on the balance of probabilities that the latter were caused by the former, in the absence of medical evidence and in circumstances in which the nose bleeds did not begin until some 18 months after she started work in Milton Keynes.
83. The last of Hirose’s witnesses was Mr. Cullis, who was employed, originally as the senior sales manager, in December 2006. His evidence was consistent with that of other witnesses, namely a pungent smell, worse on some days than on others, causing burning or itching eyes and an unpleasant sensation in the nose. The odour permeated the whole building, although some areas were worse than others, and there were many complaints from the staff.
84. Turning to Peak’s witnesses, 3 of its directors gave evidence. Inevitably, since there appears to have been a complete lack of communication and cooperation between Peak and Hirose, for which each blames the other, they were unable to give any firsthand evidence as to the extent of the odour in Unit 22. However, they did make the important point that they had had no complaints from any of their own staff in Unit 20, where one would expect the smell to be stronger. Those involved in the food production operations would wear face masks in certain areas, but not elsewhere. There was also an office upstairs (at the time of my visit to the premises, there were 2 employees there). Disclosure has been given of Peak’s absentee records, consisting of self-certification forms relating to sickness absence for up to a week. These forms require the employee to state whether, in the case of absence due to incapacity, this is caused wholly or in part by his or her employment save in 2 cases, this question answered in the negative, and in the 2 cases in which it was answered positively, this was related to a bad back. This is important, although it can be said that a person who strongly dislikes the odour would be likely to realise this when being interviewed, and not take the job.
85. Apart from this, both Mr. Paul Martin and Mr. Lewis Martin said that they had had no problem at their previous premises (contrary to what appears to have been said to Sue Wallis, see at §31 above). The blending and packing rooms, from which the odour emanates, are as far away from Unit 22 as possible. Peak, as well as the landlords, had made efforts to seal the gaps in the party wall, but such efforts had been unsuccessful. They had raised the additional measures suggested by Mr. Sneath with the landlords, but neither the landlords nor Peak itself had thought it worth taking this any further, because success could not be guaranteed. They had not got to the stage of discussing the cost, or who would be responsible for meeting it. Peak considered that, in the absence of any reaction by Hirose to its efforts to discuss the problems directly, it had done what they could.
86. The third director, Mr. Holme, has a degree in Food Science, and his role is to oversee product development. He said that Peak only used natural spices, which would also be used by housewives. In his view, the strength of the smell, even in the blending and packing rooms was no stronger than in a shop selling spices. He did not consider it possible that terpenes could be released in such a way as to cause harmful symptoms, and certainly not as far away as Hirose’s premises or, if at all, only in very small amounts. This accords with the evidence summarised at §38 above.
Expert evidence
87. I have already referred to the parties’ experts, both of whom were clear and impressive witnesses. They agreed on many of the relevant points. Where they did not, on the whole I prefer Mr. Peirson’s evidence, mainly because he took greater, and in my view proper, account of the nature of the area, that is a light industrial estate, and also because his expertise related specifically to odour emission measurement, abatement and impact control, whereas Dr. Purnell’s related more generally to environmental management and occupational safety and health. Dr. Purnell had a tendency to concentrate on the obligations owed by Peak and Hirose to their respective employees which, although in some respects relevant, were not directly in issue. He did not directly express a view on whether the odour constituted a nuisance, but said that Hirose’s duty to its own employees left it without any alternative but to leave. He was, in my view, unduly dismissive of the psychological factors incurred in this kind of situation. Mr. Peirson was firmly of the view that the odour, as it was at the time of his visits (see §70(a) and (b) above) did not represent a nuisance on an industrial estate.
88. Amongst the matters on which Dr. Purnell and Mr. Peirson were agreed, as set out in their Joint Statement, were the following:-
(a) that odours had passed, and continued to pass, through the party wall from Unit 20 to Unit 22 from time to time;
(b) that this was not prevented by the LEV system installed at Unit 20 in late 2006;
(c) that the efforts by both the landlord and Peak to seal gaps and leaks in the partition wall inside Unit 20 had been ineffective;
(d) that there was still some air pathways between the units apparent on the Unit 22 side of the party wall, including through cracks and probably also at roofline level (Dr. Purnell is convinced on the latter point); and
(e) that Hirose had taken no physical measures to seal up any leaks, but had requested the landlord to carry out such measures.
89. Equally important, although not recorded in the Joint Statement, as I understood their evidence they were agreed on the likely efficacy of the combination of certain of the measures recommended originally by Mr. Sneath, namely:-
(a) filling all the cracks in the blockwork and gaps between the blocks and the walls with mastic or close cell foam (although Mr. Peirson’s view was that this could never be completely effective because movement would open up new cracks);
(b) coating the porous breezeblock wall with thick impervious paint to prevent odour transfer through the brickwork; and
(c) constructing a secondary wall to form an extractable enclosure, and extract through it, to create a negative pressure inside the enclosure sufficient to prevent passage of odours.
90. The points on which the experts disagreed are as follows:
(a) First, some disagreement as to the extent to which odours had “pervaded” Unit 22. Since their own personal experience of the odours was limited, this is largely a question of fact which I must assess on the basis of all the evidence including their evidence on the occasions on which they were there.
(b) Disagreement as to whether there was any evidence of fine dust transfer, such as might have been prevented or abated by including a high efficiency arrestor filter to the LEV system. I have referred to the evidence at §26, 38, 41 and 44 above. I do not think that there was any fine dust transfer.
(c) Disagreement as to whether significant concentrations of volatile compounds were transferred through the party wall as airborne dust, causing the physical symptoms complained of by the employees. On the basis of the same evidence, again I find that there was not. See also §94(d) and (e) below.
(d) Then minor disagreement as to whether the construction of the units is such that effective sealing of the partition wall would not be possible. This is the view taken by Dr. Purnell, whereas Mr. Peirson considers that there are a number of techniques which could have been used to seal the wall on one or both sides. This was not much explored in cross-examination. My view is that Dr. Purnell is probably right in saying that perfection could not be achieved (and indeed, as Mr. Peirson points out, new cracks arise from natural movement from time to time), but I think that a much better job could have been, and still could be, done.
91. On the issue as to whether Peak’s operations caused a nuisance, only Mr. Peirson gave direct evidence. He considered that, on the evidence he had seen, including his own visits, the odours were intermittent and mainly restricted to the warehouse and the toilet, kitchen and back stairs areas. Office staff would not have to be in these areas except for short periods, and the intensity of the odour was not unreasonable for an industrial estate.
Main factual conclusions
92. The first of the main issues of fact is the character of the Crownhill Industrial Estate. As is clear from the correspondence, Hirose regards it as a high class genteel business park, not a light industrial estate. That is why it objected to Peak’s presence on the estate, even before Peak had occupied Unit 20. I do not think that Hirose was justified in this. Neither their witnesses nor Dr. Purnell gave any evidence in support of it. The only evidence to support it is the assertion in correspondence with its successor landlords that Unit 20 had been sold to them at that basis in 1993. That may be so, but there was no attempt to provide systematic evidence as to the nature of the business carried on by the occupants of all the other units, and it is quite insufficient to counteract the designation of the estate or the fact that all or most forms of light industrial user were within the permitted uses for the estate, and indeed within the terms of Hirose’s own lease.
93. Other references in the documentary evidence support the view that this was simply an industrial estate. The 2002 Council Committee report on the planning application for the flower silo refers to “13 industrial units” authorised for Class B1 (Light Industrial) and/or Class B2 (General Industrial) and/or Class B8 (Storage and Distribution). It also refers to 2 pressure containers to the rear of Unit 8, which were gas containers approximately 5-6 metres in height and 2-3 metres in diameter, and it refers to the unit as being “located in industrial area”. The correspondence in 2004 also refers to an external compressor at the back of Unit 20, and Dr. Moorhouse referred to the estate as an “industrial estate” in his letter of 2nd February 2006 (see §55 above). Mr. Peirson said that he had noticed a gas cylinder in the vicinity of Hirose’s unit. His view (uncontradicted by Dr. Purnell) was that, in considering whether there was a nuisance, it was necessary to consider what was acceptable on a light industrial estate. I agree with this.
94. The next important matters are the frequency and extent of the penetration of the odour from Unit 22 to Unit 20, and the effect on Hirose’s employees. I have already set out in some detail the frequent and vehement complaints made by Hirose’s employees and the contemporary documentary support for them. Peak’s witnesses are not in a position to give direct evidence, since they never entered Unit 20, but there are a number of matters to be taken into account, some of which I have already foreshadowed:-
(a) The absence of any similar complaints at Peak (see §84 above). One would expect the odour to be at least as strong in Peak’s premises, and I can confirm from my own inspection during the trial that, at least on that occasion, it was stronger. The odour was strong both in the manufacturing sections and in the office upstairs. It was very noticeable, but somewhat less strong, in the warehouse, and around the back stairs, toilet and kitchen in Hirose’s premises. So the fact that Peak has been able to operate perfectly satisfactorily, without objections from within, suggests that it is not intolerable, even for office staff.
(b) Although Hirose eventually vacated Unit 22, asserting that this was because nothing had been done about the odour problem, it had by then remained there for nearly 6 years after Peak started manufacturing. Also, for quite substantial periods, nothing was said or done about the problem: see §34-6 (June 2002 to April 2003) and §46-7 (March to December 2004) above.
(c) Then there is the view taken by the Milton Keynes council. By section 79 of the Environmental Protection Act, fumes or gases emitted from premises so as to be prejudicial to health or a nuisance constitute a statutory nuisance. By section 80, where a local authority is satisfied that a statutory nuisance exists, it is obliged to serve an abatement notice on the person responsible for the nuisance or (where the nuisance arises from any defect of a structural character) on the owner of the premises. On 29th April 2002, Katrina Macdonald, Senior Environmental Health Officer, wrote to say that she would seek to ascertain whether or not a statutory nuisance existed, and this was followed by the visit of the Scientific Officer, Mr. Parrish, who noticed the odour in the premises, but did not consider it to constitute a statutory nuisance: see his internal memorandum of 11th June 2002 and letter of 2nd July 2002, (§25-30 above). As Mr. Harwood has stressed, his visits occurred on 2 occasions when Hirose’s employees considered that there was a strong odour. A later visit did not result in a different view (§49, 55 above). While not conclusive, I regard this as quite important evidence.
(d) Then there is the Health & Safety Laboratory Report obtained by Hirose and dated 3rd September 2003. Samples were taken along the party wall, but the concentration was “typical of a normal office environment”. Air sampling identified some volatile contaminants, including terpenes, but at a concentration of about 2000 times below the level which might cause physical irritation to lungs, according to the standard used in some American reports, there being no comparable UK standards. Again, most of the samples were taken near the crack in the party block wall, where the concentration of terpenes was at its highest; Mr. Wright said that it would be considerably diluted on entering the warehouse.
(e) In addition, on this point, reference may be made to a slightly earlier Health & Safety Executive visit, made by Julie Wood at the request of Mr. Bradley: she said, on the question of dust:
“I was not able to see dust accumulating near the adjoining wall between your premises however spice & seasoning odours within your office & warehouse were noticeable at the time of my visit.”
This suggests that there was odour, but no airborne dust containing harmful terpenes.
95. Next, although rather more nebulous, there are two connected factors which must be taken into account. First, there is the possibility of exaggeration, not conscious or dishonest, but because the presence of a disagreeable smell naturally leads to it. Like Stephenson L.J. in Bone v. Seale [1975] 1 All E.R. 787 at 792e, I think that in this situation one must allow for a natural tendency to exaggerate. Some of the written evidence does have a somewhat exaggerated feel to it when compared to, for example, the 2005 scoring sheets and Ms. Wallis’ note referred to at §33 above (although it is possible that she accurately recorded what Mr. Parrish had said, but that this was an attempt to be sympathetic and not what Mr. Parrish actually felt).
96. The connected point is — as again Stephenson L.J. put it — the possibility of “hypersensitivity”. This was a company which had taken against Peak’s business right from the start, and encouraged its employees to look out for disagreeable odours and complain. Mr. Sneath’s description of the psychological factors involved, once an unpleasant odour has been detected, which then persists, is set out at §60 above. To similar effect, Mr. Peirson describes at §3.7.23 of his report the way in which people can come to feel strongly about an odour, and can continue to feel that way even if it is reduced. He says that the psychological effect of an apparent increase in sensitivity is a well-known phenomena with odours in a wide range of settings, and that in his view this may have been an element in the present case. As opposed to that, there is Dr. Purnell’s robust response “I don’t deal with psychology, I deal with odour and dust”, but I prefer the evidence of Mr. Peirson. I consider that there has been an element of psychological and emotional reaction in play, and also that the situation may have been talked up between Hirose’s employees over the years. I should make it quite clear that I do not mean by this that I doubt the honesty of the witnesses, or of the contemporary documents produced over the years.
97. Based on all the evidence, and all the factors set out above, I find that there was sometimes, but by no means daily, or necessarily throughout the day, a fairly strong disagreeable odour in the warehouse section of Hirose’s premises and in the back stairs, kitchen and toilet area. I also find that the odour reached other parts of the premises, but less frequently and usually with less strength. I accept the evidence that employees sometimes felt nauseous, although this was less frequent than some of their statements and the documents suggest.
98. I am more doubtful about other symptoms such as blocked sinuses and eye irritation. These are common symptoms at the end of a tiring day, and in the absence of either medical evidence as to the cause or likely cause, or evidence of airborne transfer of terpenes in any significant quantity, I am not persuaded on the balance of probabilities that such symptoms were, except perhaps occasionally, caused by Peak’s operations. I accept however Peak’s operations probably did adversely affect Mr. Bradley’s condition, which however was deteriorating before Peak arrived.
99. Finally, on the facts, I must consider why what on the face of it were normal operations for a light industrial estate caused such problems and what could have been done to alleviate them. I consider that the main reason was the lack of any form of effective insulation between Units 20 and 22. The party wall is porous, and there are gaps which have not been properly sealed. I am sure that the problems would have been cured or at least substantially alleviated if the work referred to at §89 above had been done, most importantly the secondary wall. Physically, all of it could have been done by either of the parties or by the landlord, except that each party could have applied impervious paint only to its own side of the wall and some of the gaps might have been accessible only from one side or the other. To the extent that the landlord’s permission was required, I can see no reason why this should not have been given, and I find that it would have been. It would have been in the landlord’s interests to have contented tenants and there would have been no downside. Whether the landlord would have been prevailed upon to share in the cost, if faced with a united front, is more doubtful.
100. That the work was not done was the result of the unfortunate lack of cooperation between the parties. I am unable on the evidence to decide the reason(s) for this, but the result has been that Hirose has left for new premises at far greater cost than would have been incurred by the remedial resources sensibly proposed by all 3 experts who have been concerned with this case.
101. For reasons already explained, I do not think that the suggested addition to the LEV system to extract fine dust would have made any significant difference. Fitting a charcoal filter to reduce odour might have helped, but neither Dr. Purnell or Mr. Peirson said that it would have been effective on its own.
The law
102. Save as set out below, there is no issue between the parties as to the applicable law. Causing an offensive smell is one of the established types of nuisance by interfering with another’s enjoyment of his land, as to which Clerk & Lindsell states at §20-10 to -11 that with a nuisance of this kind involving:-
“… personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom or anything that discomposes or injuriously affects the senses or the nerves, there is no absolute standard to be applied. It is always the question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance. The acts complained of of constituting the nuisance, such as noise, smells or vibration, will usually be lawful acts which only become wrongful from the circumstances under which they are performed, such as the time, place, extent or manner or performance. In organised society everyone must put up with a certain amount of discomfort and annoyance caused by the legitimate activities of his neighbours
… a nuisance of this kind, to be actionable, must be such as to a real interference with the comfort of convenience of living according to the standards of the average man. An interference which alone causes harm to something of abnormal sensitiveness does not of itself constitute a nuisance.”
103. It is of course also well established that the character of the neighbourhood must be taken into account. What may be a nuisance in a quiet rural area may not be in a busy town: see Clerk & Lindsell at §20-13 and Sturgess v. Bridgman [1879] 11 Ch. D. 852 at 855-6 per Thesiger L.J.
104. I was also referred to the decision of the Court of Appeal in Polsue v. Rushmer [1906] 1 Ch 234 affirmed by the House of Lords at [1907] AC 1, in which, in an area with existing printing works (Gough Square, off Fleet Street), the use by a new establishment of heavy machinery during the night was held to have seriously increased the disturbance caused to residents, over and above the disturbance caused by existing businesses, and to be an actionable nuisance. However, I have almost no evidence as to the operations of other businesses in the Crownhill Estate prior to 1992 and in any event this is not an area in which there are business and residential premises side by side. I have not derived any assistance from this decision.
105. There was some debate as to the significance of the permitted uses for the estate established in 1980. In Allen v. Golf Oil Refinery Limited[1980] QB 156 Cumming — Bruce L.J. said at 174 that the planning authority had no authority to authorise a nuisance, save to the extent that it had statutory power to permit the change of the character and neighbourhood, and this has been followed in later cases.
106. The point was next considered in Gillingham Borough Council v. Medway (Chatham) Dock Co. Limited [1993] QB 343. In that case, planning permission had been granted for the development of a commercial port on the site of a disused naval dockyard, resulting in heavy traffic at all hours of the day and night, seriously disturbing local residents. The Borough Council’s action on their behalf was dismissed. Buckley J. held that, whilst planning consent could not authorise a nuisance, it could change the character of the neighbourhood by which the standard of reasonable user fell to be judged. Since the alleged nuisance was the inevitable result of the planning permission, it was sanctioned by it and could not be actionable.
107. In Wheeler v. J. J. Saunders Limited [1996] Ch 19, the Court of Appeal held that, where the smell emanating from the defendants’ pig farm amounted to a nuisance, this could not be affected by the fact that the defendant had obtained planning permission for pig breading. This was because the grant of planning permission, involving a change of use in relation to a small piece of land only, could not be said to be one which effected a change in the character of the neighbourhood, and therefore what constituted reasonable user within the neighbourhood: see per Staughton L.J. at 30C-F and per Peter Gibson L.J. at 35E-H, and per Sir John May at 37B-H.
108. In Watson v. Croft Promo-Sport Limited [2009] 3 All E.R. 249 (C.A.), Morritt V-C affirmed at §32 that the implementation of what may properly be called a strategic planning permission may “so alter the nature and character of the locality as to shift the standard of reasonable user which governs the question of nuisance”.
109. Finally, on the law, I was referred to the decision of the House of Lords in Southwark London Borough Council v. Turner [2001] 1 AC 1, in which the House of Lords held that, where noise generated by ordinary day-to-day living in residential flats unduly interfered with the enjoyment by other residents, due to the lack of adequate sound insulation, this constituted neither a breach of the landlord’s covenant for quiet enjoyment nor actionable nuisance on the part of the landlord. It is inherent in the decision that it did not constitute actionable nuisance on the part of the residents either.
110. Lord Hoffmann and Lord Millen gave the leading speeches. Lord Hoffmann held at 15D-16B that noise resulting from the normal use of a residential flat cannot constitute nuisance, unless the resident’s ordinary activities are carried out in an unnecessarily burdensome way, such as by putting a television or washing machine hard up against the neighbour’s wall.
111. Lord Millen referred at 20C-H to the use by Lord Goff in Cambridge Water Co v. Eastern Counties Leather PLC [1994] 2 AC 264, at 299 to “the principle of reasonable user — the principle of give and take” and to the similar reference to “give and take, live and let live” in the judgment of Bramwell B. in Bamford v. Turnley 3 B&S 62 at 83-4. At 21F-H. In considering what is a reasonable user, the position of both parties must be assessed:”the governing principle is good neighbourliness and this involves reciprocity”. He approved what Tuckey L.J. had said in the Court of Appeal, that the ordinary use of residential premises without more is not capable of amounting to a nuisance even if, due to defects in the party wall, it interferes with the use by other residents of their premises. He rejected the appellants’ submission that the landlords, and by extension the tenants because they caused the noise, were liable for nuisance.
112. Mr. Harwood submitted that the position in this case was in effect the same. Peak was using industrial premises in a normal manner, with reasonable consideration for its neighbours, and they were not responsible for difficulties which were mainly due to defects in the party wall. I did not find this wholly convincing, because it cannot be said of business premises, as Tuckey L.J. said of residential premises, that ordinary use can never be a nuisance.
113. Mr. Holland submitted that it could not be a defence to a claim in nuisance that otherwise actionable discomfort caused by a defendant would not have been caused if the premises had been constructed differently. This seems to me to beg the question which is, as Sir Andrew Morritt V-C indicated in Watson, supra, whether the defendant’s use of the premises he occupies is reasonable, in the sense explained by Lord Millett, that is taking into account the defendant’s requirements as well as the claimant’s comfort. The fact that it causes discomfort is not conclusive.
Conclusion on liability
114. I have concluded that Hirose’s case is not made out. This is for the following main reasons:-
(a) The character of the neighbourhood was that of a light industrial estate. It was established as such by the decision of the Secretary of State in 1980, which undoubtedly ranks as a strategic decision for these purposes, and by the subsequent development of Crownhill Industrial Estate and its use as an industrial estate in the period since 1980.
(b) I do not consider that the odours reaching Unit 20 amounted 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. The degree of interference with Hirose’s business and with the comfort of its employees, having regard of the character of the estate, was insufficient.
(c) I agree with the opinion of Mr. Peirson, and I am struck by his observations, first, that the occupier of a unit on a light industrial estate must expect the possibility of disagreeable smells, for example, welding operations might easily be encountered and, secondly, that the discomfort caused on an industrial estate, where the persons concerned work on weekdays in the daytime, is not as great as would be caused to residential neighbours.
(d) I do not think that there is anything unreasonable in Peak’s use of Unit 22. It carries out normal operations of a kind which are not out of place on a light industrial estate and there is nothing unreasonable about the manner in which these operations are carried out.
115. There is in my view an analogy with the London Borough of Southwark case. The root of the difficulties in this case is, again, the inadequate protection afforded by the party wall between Units 20 and 22. It is not right to say that the ordinary use of industrial premises cannot constitute a nuisance, but I have found that Peak’s use of its premises was reasonable, taking into account the interests of both parties. That being so, I do not think that the reasonable user by an occupier of industrial premises on an industrial estate becomes a nuisance because of inadequacies in the party wall dividing its premises from its neighbour for which it is not responsible. As I have explained earlier, these could have been wholly or largely cured from either side. Hirose’s attitude throughout has been that it was for Peak, which caused the discomfort to its employees, either to take the necessary steps to alleviate it or to cease production. But in my view the risk of such discomfort was inherent in leasing premises of this kind, and it was for Hirose to do whatever was necessary to look after its employees.
Remedies
116. In view of this conclusion, it is unnecessary for me to deal with the question of remedies, but I would ordinarily have done so in case there was an appeal. However, I indicated during the hearing that I did not consider that I was in a position to deal with remedies if I found for Hirose. Put shortly, the reasons for this are as follows:-
(a) On the question of damages, the issue as to whether Hirose was reasonable, after six years, to move out, rather than to carry out remedial works on its side of the wall, was inadequately explored in the evidence. Mr. Peirson said, in answer to a question by me, that the most effective step, putting up the secondary wall, could have been taken by either party, and so could most of the others. Although there is no accurate evidence as to the cost, it is clear from his evidence that it would have been far less than the costs incurred by Hirose in moving to other premises. There is therefore a question as to whether these costs were incurred reasonably.
(b) Mr. Holland submitted correctly that failure to mitigate in this respect had not been pleaded. However, the question as to whether remedial steps generally should have been taken by Hirose is referred to in the expert evidence, and was put in cross-examination albeit with little particularity. I would have been very reluctant to decide this issue on a pleading point.
(c) Mr. Holland also submitted that it did not “lie in the mouth” of Peak to say that Hirose should have done what they could and should themselves have done. I doubt whether this submission is consistent with the law relating to mitigation of damage and certainly it is not a conclusive answer to the point. I think that the duty to mitigate may well require a claimant to do things which the defendant has failed to do.
(d) There is also an issue as to whether Hirose’s decision to move out was in fact because of the odours of which it had been complaining for several years or because, having discontinued any warehousing or manufacturing function, office premises now suited it better. Ms. Stark gave some rather inconclusive evidence on this. Mr. Cullis gave firm evidence that the reason for moving premises was to escape from the proximity of Peak’s operations only and that the lease taken was a suitably short one. There was however no evidence from Hirose’s senior management, nor was there any disclosure of internal documents relating to the decision, of the kind which one would expect to exist, and which I would have wanted to see if they did.
(e) The sparseness of the evidence in this area is also relevant to the question of an injunction. There would be no justification for granting an injunction unless the court was satisfied that Hirose would then resume possession of Unit 20.
117. Overall, I did not consider Hirose’s evidence, insofar as it related to the issues on remedies, to be adequate, and I would not have been comfortable in deciding these issues without a further hearing. Coincidentally, the decision of the Court of Appeal, shortly after the hearing of this matter, in Stadium Holdings v. Marylebone Properties Co plc seems to support my view that, if I had found in favour of Hirose on liability, the right course would have been to have a separate hearing on the issues relating to quantum and the injunction.
Conclusion
118. For the reasons I have set out above, this action is dismissed.
