England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR N STRAUSS QC sitting as a deputy judge of the High Court
HC09C00968

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/08/2011

Lord Justice Mummery:

Introduction

1. A smell that causes discomfort and inconvenience to the ordinary enjoyment of property may be a private nuisance actionable by the occupier affected. In determining whether there is a nuisance the court applies an objective standard set according to the circumstances and locality of the neighbouring properties in question. The controlling principles, which are (a) the reasonable user of property and (b) reciprocal regard for the interests of neighbours, reinforce an altruistic process of give and take: see Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 at 299.
2. It is for the trial court to make its assessment of the overall situation by applying an objective standard to the facts found on the evidence before it. The issue for the trial court is whether the evidence establishes the existence of a nuisance and the defendant's responsibility for it. In this court the issue is whether the trial court's assessment is wrong. If it is, this court can overturn it. A first instance judgment involving the application of a standard to particular facts is a different kind of exercise from, for example, a judicial finding that an event did or did not take place: the judgment on a relativistic issue, such as whether a particular activity amounts to a nuisance, is not "wrong" simply because, if this court had tried the case, it would not have made the same overall assessment. "Wrong" in this context means that the first instance assessment is flawed by a misinterpretation of the applicable law, or by a misapplication of the law to the ascertained facts, or if, for some other reason, it is obviously unsupportable.
3. The situation that led to the commencement of these proceedings on 27 March 2009 has some unusual aspects. It is common ground that from 2002 onwards a smell objected to by the claimant and some of its employees wafted intermittently from the defendant's premises to the claimant's premises. The smell is not the by-product of what were once called "offensive trades." In legal theory, I suppose that any kind of smell could found an action in private nuisance by an occupier of property, as long as it materially impairs the comforts and convenience of life. In real life, legal action is more likely to be taken about the stink of rotting fish than about the brief breath of freshly baked bread or the fragrance of newly mown hay. In this case the objection is to a culinary smell, a curry/garlic-like odour produced by food additives made by the defendant on its premises.
4. The locale is not a domestic kitchen in a residential area, nor is it an urban restaurant or take-away/carry-out establishment: the defendant manufactures an ingredient smelling of curry and/or garlic on an industrial scale in a unit situated on a light industrial estate in Milton Keynes. The claimant is the lessee of an adjacent unit of office premises located on the same industrial estate. The essence of the complaint is that the strong, spicy smell produced by the defendant's food additives badly affected the comfort and convenience and even the health and well-being of some of claimant's staff and inflicted resulting financial loss on the claimant, including the cost of leasing alternative accommodation.

Appeal background

5. This appeal, brought with the permission of the deputy judge who tried the case, is against his order dated 21 October 2010 dismissing with costs a nuisance claim by Hirose Electrical UK Limited (Hirose) for an injunction and damages based on the escape of noxious odours from commercial premises occupied by the defendant Peak Ingredients Limited (Peak) at Unit 20 Crownhill Industrial Estate, Milton Keynes into the adjacent premises at Unit 22 occupied by Hirose.
6. Units 20 and 22 are part of the same block. They are separated by a porous breeze block party wall which has insufficiently sealed gaps in it. The light industrial/warehouse units have a substantial proportion of office accommodation over 2 floors at the front and a warehouse space at the rear.
7. Hirose complained of strong and pervasive smells variously described as spicy, peppery, or like curry or garlic and causing harm to the health of some of the claimant's employees and a nuisance to its premises. The employees' complaints included breathing difficulties by asthmatics, sinus problems, severe headaches, feelings of sickness and nausea, and dry throats.
8. Hirose was lessee of Unit 22 from 1993, having taken an assignment of a lease expiring in 2014. The permitted user was warehouse, light manufacturing and offices. It manufactures parts for mobile phones. It used the premises, which were on 2 floors, partly for offices and partly for warehousing and distribution purposes. It employed 24 to 26 employees, though the number had fallen to about 8 by April 2007 when warehousing and distribution ceased. In October 2007 Hirose decided to vacate the premises and to take up occupation elsewhere. On 16 May 2008 it vacated Unit 22.
9. Peak became lessee of Unit 20 in February 2002. It manufactures food additives and coatings. In its lease Peak covenanted not to use the premises other than as a factory for the manufacture of food, with ancillary offices. Peak also covenanted not to do any act which was or might become a nuisance (clause 3.11.2).

Judgment

10. The deputy judge found that the Crownhill Industrial Estate was a light industrial estate, and that it was not the high class, genteel business park depicted by Hirose in its evidence. Permitted user included use for offices, industrial purposes and processes (but excluding a large number of heavy industrial uses) and for storage and distribution. Hirose had contended from an early stage that the Crownhill Industrial Estate was a prestigious business centre complex for high-tech, light manufacturing companies' offices and warehouses, as opposed to an industrial estate for the kind of food processing business carried on by Peak with "odour contamination" which, it was claimed, made Unit 22 smell "like an Indian curry house."
11. When Hirose took up the matter with the freeholders they disclaimed responsibility. They suggested that the problem should be referred to the Environmental Health Officer and that there be a meeting with Peak. Although Peak's use was in accordance with the user covenant and with the planning permission, Hirose argued that the food manufacturing plant was not suitable for the environment of the Crownhill Industrial Estate.
12. From the beginning of Peak's occupation Hirose employees made frequent and vehement complaints. There were no complaints from Peak's employees, who worked in the Unit 20 premises where the smell was stronger. There were occasions when members of Hirose's staff felt nauseous and were sent home.
13. The landlords did some work to the premises, but it was not effective. There were inconclusive discussions about re-locating Hirose. The landlords rejected Hirose's allegations that there was a breach of the covenant for quiet enjoyment.
14. Hirose remained in its premises for nearly 6 years after Peak started up its smelly activities in Unit 20. For quite substantial periods nothing was said or done by anyone about the situation. The local authority, which was brought in by Hirose, did not consider that there was a statutory nuisance, nor did the Health and Safety Executive, which took no effective action in the matter. The Environmental Health Department considered that it was a neighbour/landlord dispute and that any action would need to be taken in private nuisance.
15. The possibility of exaggeration and hypersensitivity on the part of Hirose featured in the case. The judge found 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. It reached other parts of the premises, but less frequently and usually with less strength. Employees sometimes felt nauseous, though less frequently than some of their statements suggested. The judge expressed doubt about other symptoms described in the evidence, such as blocked sinuses and eye irritation.
16. The situation in Unit 22 was aggravated by the lack of any effective insulation in the party wall between the Units. Something could have been done about it by either party and/or by the landlord: due to lack of co-operation between the parties, nothing was done. I would add that by now the total costs of this litigation, which has achieved nothing of use for the parties to it, must be greater than the expense of a constructive solution to the smell permeation problem by insulation works to the party wall.
17. As to the applicable law of nuisance, there was and is no issue between the parties. The deputy judge summarised the relevant principles (see paragraphs 102 to 110 of his judgment) and cited a selection of the authorities. On the basis of the legal principles laid down in them Peak submitted that it was using industrial premises in normal manner with reasonable consideration for neighbours and that it was not responsible for the difficulties that were mainly due to defects in the party wall. The deputy judge correctly pointed out that, as a matter of law, the ordinary use of the premises could amount to an actionable nuisance.
18. On behalf of Hirose it was correctly submitted that, if Peak's activities materially interfered with Hirose's enjoyment of its property, Peak could not escape liability by showing that, if the premises had been constructed differently, there would have been no escaping smell to cause a nuisance, or that its use of Unit 20 was a reasonable use.
19. In a very thorough and careful reserved judgment the judge, who made a site visit during the trial, reviewed all the evidence (including expert evidence) in detail and stated his main factual conclusions.
20. The first main issue of fact was the character of the Crownhill Industrial Estate. Hirose said that it was a "high class genteel business park" rather than a light industrial estate and for that reason it objected to Peak's presence on the estate. The deputy judge did not agree. He held that Hirose's expectations of the character of the Crownhill Industrial Estate were not supported by the evidence: it was a light industrial estate.
21. The second issue was the frequency and extent of the penetration of the odour from Unit 20 to Unit 22 and the physical effects on Hirose's employees. The deputy judge reviewed the evidence of frequent and vehement complaints by Hirose staff members and took account of other matters, such as the absence of any similar complaints from staff, including office staff, at Peak, where the smell was stronger. He also noted that Hirose had remained in Unit 22 for nearly 6 years after Peak started manufacturing in Unit 20, and had, for quite substantial periods, said or done nothing about the problem. The deputy judge took account of the view of the Milton Keynes Council that there was no statutory nuisance and of the Health and Safety Executive visits, which did not result in any action. He also noted the possibilities of exaggeration, hypersensitivity, and of psychological and emotional reaction resulting in the talking up of the situation by Hirose employees over the years.
22. The deputy judge found that:-

"97…. 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 documents suggest."

23. The deputy judge was more doubtful about other symptoms, such as blocked sinuses and eye irritation. He was not satisfied, on the balance of probabilities, that such symptoms were, except perhaps occasionally, caused by Peak's operations. He did accept that Peak's operations probably adversely affected Mr Trevor Bradley's asthma, which, however, was deteriorating before Peak arrived.
24. Finally, the deputy judge considered why seemingly normal operations on a light industrial estate caused such problems and what could have been done to alleviate them. Lack of any effective insulation between the two units was identified as a problem: the porous party wall and the gaps in it that had not been properly sealed. Works could have been done by either of the parties or by the landlord; and there was no reason why any permission required from the landlord could not have been and would not have been given, though it was more doubtful whether the landlord would have agreed to share the cost. The lack of co-operation between the parties meant that insulation work was not done.
25. The deputy judge gave four main reasons for concluding that Hirose's case was not made out.
26. First, the character of the neighbourhood was that of a light industrial estate, as established by decision of the Secretary of State in 1980 and it was used as such since then.
27. Secondly, taking account of the evidence as to frequency, intensity and effect, the odours reaching Unit 22 did not amount to a nuisance. The degree of interference with its business and the comfort of its employees were insufficient, having regard to the character of the estate, which was light industrial as opposed to residential.
28. Thirdly, the occupier of a unit on a light industrial estate must expect the possibility of disagreeable smells. The discomfort caused on an industrial estate, where persons concerned work on weekdays in the daytime, is not as great as would be caused to residential neighbours.
29. Fourthly, there was nothing unreasonable in Peak's use or manner of use of Unit 22 for normal operations, which were not out of place on a light industrial estate.
30. The deputy judge observed that the root of the difficulties between the parties was the inadequate protection afforded by the party wall, for which Peak was not responsible. Hirose had taken the position that it was for Peak, which caused the discomfort to its employees, to take the necessary steps to alleviate it or to cease production. The judge said that the risk was inherent in leasing premises of this kind and that it was for Hirose to do whatever was necessary to look after its employees. He said:-

"115. …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."

Grounds of appeal

31. On behalf of Hirose Mr Holland submitted that, even on the findings of fact he had made, the deputy judge ought to have held that the odours emanating from Unit 20 constituted a nuisance.
32. First, the deputy judge was wrong to hold that Peak's use of Unit 20 was reasonable given the porous state of the party wall between the two Units.
33. Secondly, the deputy judge misinterpreted and misapplied the law laid down in Southwark v. Mills [2001] 1 AC 1. He wrongly drew an analogy from that noisy neighbour nuisance case, 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 said that the deputy judge wrongly reasoned that there was no nuisance here, as Peak's activities were reasonable and normal operations for a light industrial estate. He failed to consider whether, having regard to the porous nature of the party wall, Peak's activities could be reasonably or conveniently done within Unit 20 at all. It was not a defence to a claim for nuisance to say that the defendant is only making reasonable user of his property and that the position on the discomfort being caused would be different, if the premises were constructed in a different manner. Peak may be acting reasonably from the point of view of its own interests, but unreasonably from the point of view of Hirose's interests, to which it must show the same sort of proper consideration that it would expect from Hirose: see Lord Millett in Southwark LBC v Mills (supra) at p 20E
34. Thirdly, the deputy judge 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 units constructed with porous walls and office accommodation were not suitable for carrying on industrial activities which generated noxious odours. Describing the estate as a whole as "light industrial" was not sufficient to establish them as a reasonable user of Unit 20, as constructed.
35. Fourthly, it was simply wrong to hold that the odours emanating from Unit 20 did not constitute a nuisance, having regard to the clear unchallenged evidence of the employees of Hirose that Peak caused the physical symptoms complained of by Hirose's witnesses as a result of inhaling the odours. He was also wrong in holding that the evidence was tainted by exaggeration or hypersensitivity. The substances generated from Peak's industrial operations, emitted from Unit 20 and permeating the porous party walls were hazardous to health. This was a case of nuisance caused by long term intermittent exposure to odours. The deputy judge was wrong to reject the detailed evidence of employees of Hirose that they had suffered physical symptoms as a result of exposure to odours emanating from Peak's premises. He had not doubted the honesty of the witnesses, each of whom described the smell and the physical effects suffered at the time they worked in Unit 20. They were not cross examined on the basis that they had not suffered, or had exaggerated, the symptoms, or that they had other causes. Their evidence was supported by the expert evidence of Dr Purnell and by material in the reports and records.
36. The deputy judge had also been over-influenced by his view that Hirose had not acted reasonably in quitting Unit 22 and renting other premises. That factor might be relevant to remedy, but not to liability.

Conclusions

37. I have not been persuaded by Hirose's detailed criticisms that the deputy judge's decision was wrong.
38. His findings of fact were open to him on the evidence of the witnesses of fact, the expert evidence and his own site visit. He made no misdirection of law, the legal principles being common ground at the trial. I am satisfied that the deputy judge was correct in his understanding of the Southwark case and that he did not, in deciding this case, make any false analogy from that case.
39. As I see it, the really important points are these.
40. First, the deputy judge was entitled to attach significance to the location of the premises and the character of the Crownhill Industrial Estate. The light industrial character of that Estate covered Peak's food additive manufacturing, which was permitted on both planning grounds and by the user covenant in its lease. The activities in Unit 20 were carried on without objection or intervention on environmental or health and safety grounds by the relevant statutory authorities. While those matters are obviously not conclusive against the existence of a private nuisance, they are relevant indicators of the levels of discomfort and inconvenience caused by the smell.
41. Secondly, there are no grounds on which this court would be entitled to second guess the deputy judge's findings about the strength and effects of the smell. The permeation of the smell was intermittent and continued for a very long period before Hirose decided to take any legal action. As for the effects on the health and well-being of particular employees the judge was entitled to form his assessment of them, to reach his conclusions on the causes and seriousness of the physical symptoms described, and to have regard to the probabilities of a degree exaggeration and hypersensitivity, as compared, for example, with the absence of complaint from Peak's employees working in its Unit.
42. The porous nature of the party wall was relevant to the penetration of the smell into Unit 20 and as a subject of remedial work, but no blame on that point could be allocated to the parties or to the landlord. It is a matter for regret that the parties and the landlord were unable to make progress on insulation measures, but that particular point does not carry as much weight on the critical issue of fact and degree as to whether, in all the circumstances, the smell was such that it was material interference with the material comfort of Hirose and its employees.
43. I am not persuaded that there are any grounds that would entitle this court to disturb the findings or conclusions of the judge, who heard all the evidence, visited the site and correctly stated and applied the relevant law.

Result

44. I would dismiss the appeal. It has not been established that the decision of the deputy judge was wrong in fact or law.

Lord Justice Munby:

45. I agree.

Mr Justice Hedley:

46. I also agree.