Smell - Injury to health - Smell emanating from defendant's industrial unit

Hirose Electrical UK Ltd v Peak Ingredients Ltd: Court of Appeal, Civil Division (Lords Justice Mummery, Munby, Mr Justice Hedley): 11 August 2011

The claimant and the defendant companies occupied adjacent units at an industrial estate. The units were separated by a porous breezeblock party wall which had insufficient sealed gaps in it.

The claimant, who manufactured parts for mobile phones, complained of strong and pervasive smells variously emanating from the defendant's block causing harm to the health of some of the claimant's employees and a nuisance to its premises. The claimant brought a claim in nuisance for an injunction and damages based on the escape of noxious odours from commercial premises occupied by the defendant.

The judge dismissed the claim. Drawing on an analogy from a 'noisy neighbour' nuisance case (Southwark v Mills [1999] 4 All ER 449), in which it was held that the ordinary, normal and reasonable use of residential premises by its occupier, without more, was not in itself a nuisance to the neighbours, he found that the character of the neighbourhood was that of a light industrial estate. The odours reaching the claimant's premises did not amount to a nuisance on a light industrial estate, as the degree of interference with the claimant's business and with the comfort of its employees was insufficient.

An occupier of a unit on a light industrial estate had to expect the possibility of disagreeable smells. There was nothing unreasonable in the defendant's use of its premises. It carried out normal operations which where not out of place on a light industrial estate. Reasonable user by an occupier of industrial premises on an industrial estate could not become a nuisance because of inadequacies in the party wall dividing its premises from its neighbour for which it was not responsible.

In the circumstances, those inadequacies could have been cured from either side. The claimant appealed. The grounds of appeal were, inter alia, that the judge: (i) was wrong to hold that the defendant's use of the unit was reasonable given the porous state of the party wall between the two units; (ii) had wrongly drawn and analogy from 'noisy neighbour' nuisance case; (iii) had relied too heavily on his characterisation of the area as a light industrial estate, without looking into the nature and construction of the various individual units.

The appeal would be dismissed: In the instant case, the findings of fact which the judge had made had been open to him. He had made no misdirection of law, the legal principles being common ground at the trial. The judge had been correct in his understanding of the Southwark case and had not made any false analogy from that case.

The judge had been entitled to attach significance to the location of the premises and the character of the industrial estate. The light industrial character of that estate covered the defendant's food additive manufacturing, which was permitted on both planning grounds and by the user covenant in its lease.

Further, there were no grounds on which the appeal court would be entitled to second guess the judge's findings about the strength and effects of the smell (see [38], [40], [41] of the judgment).

Southwark London Borough Council v Mills, Baxter v Camden London Borough Council (No 2) [1999] 4 All ER 449 approved. Decision of Nicholas Strauss QC [2010] All ER (D) 198 (Oct) affirmed.

David Holland QC (instructed by Rochman Landau LLP) for the claimant. Richard Harwood (instructed by Kennedys LLP) for the defendant.