Nuisance Update

The law nowadays has several weapons in its armoury to deal with an occupier of land whose activities interfere with his neighbour's use and enjoyment of his own land. Such interference generally results from excessive smoke, dust or noise or noxious smells. More unusually, neighbours have, over the years, fallen out over alleged interferences as diverse as power lines, television reception and brothels.

Whilst historically such matters have fallen squarely within the scope of public or private nuisance, as a matter of practicality, many "victims" of such interference are finding it easier, and considerably cheaper, to invoke the law of statutory nuisance in order to seek to curtail the behaviour of which complaint is made. This statutory regulation is centred upon section 79(1) of the Environmental Protection Act 1990, which sets out a list of activities capable of being regarded as a statutory nuisance which, along with the prosaic types referred to above, also includes animals, insects and artificial light which are "prejudicial to health or a nuisance". This legislation requires local authorities to investigate complaints of statutory nuisance and where satisfied that a nuisance exists to serve a notice requiring the nuisance to be abated.

However, the statutory regime does not replace the common law. If the local authority does not consider there to be a problem, and if the "victim" has, or can obtain, the funding required to pursue a case the common law can once again come to the fore. That said two recent cases have shown the difficulties in bringing successful actions in this regard.

In the first, Hirose Electrical UK Limited v Peak Ingredients Limited, the claimant alleged that its employees were caused severe discomfort and inconvenience as a result of a "curry/garlic like odour" wafting intermittently through the porous breezeblock walls of the neighbouring unit on a light industrial estate. The local authority investigated, at the request of Hirose, but did not consider that there was a statutory nuisance. Despite those indicators, Hirose chose to pursue Peak for damages, including the cost of locating to an alternative site. The judgment at first instance, which was upheld on appeal, found that the frequency, intensity and effect of the odours did not amount to a nuisance in a light industrial estate and any occupier of such a unit must expect the possibility of disagreeable smells.

The case reinforces the view that, whilst...