Legal brief: Sniffing out trouble

Simon Colvin reveals why odour is a hot topic at the moment, particularly for businesses operating in the waste and manufacturing sectors

Odour is increasingly being reported as the reason for noncompliance with environmental permits.

The issue has for a long time been the focal point for local authorities exercising their statutory nuisance powers.

However, it is also now becoming the focus of more private nuisance claims by local residents and businesses, as demonstrated by Barr v Biffa [2012] EWCA Civ 312 and, more recently, Anslow v Norton Aluminium [2012] EWHC 2610 (see below).

It is in relation to environmental permits and nuisance that we have seen the most significant recent developments.

Controlling odours

The Environment Agency’s H4 odour guide was published in March 2011, although a draft had been available for some time prior to that.

Among other things it details the foundations of odour control: standard permit conditions; the requirement for odour management plans; and control measures, from engineering solutions to the cessation of the permitted activities.

The guidance also outlines a monitoring approach that centres on sniff testing and the use of the FIDOL parameters; which measure the frequency, intensity, duration, offensiveness and location of the smell.

Those familiar with H4 and odour will know that it is a very subjective area, prone to different interpretation with a high degree of uncertainty. As a result, the agency is often reluctant to respond using its enforcement tools, despite the fact that H4 provides a framework for tackling fugitive odour emissions.

Private claims

A worrying trend for operators is the increasing number of third-party claims from local residents and rising group litigation orders. Often specialist “odour-chasing” law firms are acting on no-win-no-fee agreements, meaning there is very little risk to claimants – they have nothing to lose other than their time.

The damages awarded where these claims succeed are often quite limited, from a few hundred to a few thousand pounds per claimant, but the costs can mount up where there are a number of claimants. In addition, there are often not insignificant legal costs for operators defending these claims.

Of most concern to operators is the threat of an injunction to prevent odours continuing. An injunction could require the temporary suspension of a manufacturing process until, for example, a solution is found to prevent the fugitive odour emissions. The associated costs and reputational damage of an injunction could be very significant.

Businesses should understand the basis on which an injunction will be granted and what they can do to try and protect against such an eventuality. Injunctions are often only granted in circumstances where there is a real danger that without an injunction the odour would continue.

Preventative action

The Anslow case highlighted that a court is unlikely to grant an injunction where an operator is:

• taking proactive steps to prevent any further fugitive odour emissions – by investing in additional abatement equipment, for example;
• engaging with local residents and businesses to manage their concerns – such as through resident liaison groups or helplines; and
• complying with an environmental permit – although this will not be a determining factor.

The overriding message is that, in the event of fugitive odour emissions, operators need to be proactive in taking control of the situation, even if this involves the voluntary temporary cessation of operations.

This should help to ensure that an operator can retain an element of control, in avoiding being subjected to a statutory notice served by the regulator, or a court-imposed injunction. If an operator can retain control in this way, then often they will be able to determine when operations should recommence, as opposed to the agency or a court making that decision.

As activities that generate odour are more frequently coming into close contact with residential communities and other businesses, conflict relating to odour is likely to increase. Operators need to act now to ensure they have processes in place to minimise the risks to their businesses.

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Barr v Biffa

In this landmark case, the Court of Appeal reversed a High Court ruling that compliance with an environmental permit could defeat a nuisance claim. The case concerned a landfill site close to a housing estate in Ware, Hertfordshire.

Thirty claimants brought a nuisance claim against Biffa – the operator of the site – for smells arising from the operation. Biffa had a waste-management permit that was subject to conditions aimed at controlling, minimising and monitoring odours.

However, the Court of Appeal ruled that the permit did not authorise new smells.

For more information visit: environmentalistonline.com/biffa

Anslow v Norton Aluminium

Local residents succeeded in a private nuisance claim against a nearby aluminium foundry for odour emissions.

The judge ruled that, although the claimants had failed to establish a legal nuisance by way of noise, smoke, fumes and dust, they had established an unreasonable interference with the use of their properties because of odour.

Fore more information visit: environmentalistonline.com/anslow