Hirose Electrical UK Ltd v Peak Ingredients Ltd

An alleged odour nuisance is assessed objectively by reference to the locality, the extent and effects of the interference, reasonable use of property, and reciprocal regard between neighbours. A normal and permitted industrial use may still amount to a private nuisance, but planning compliance and regulatory inaction can be relevant, though inconclusive, indicators of the degree of interference.

An appellate court will not replace a first-instance evaluative assessment merely because it might have reached a different view. It may intervene only where the assessment rests on legal error, misapplication of law to the facts, or is otherwise obviously unsupportable.

The claimant occupied office and warehouse premises on a light industrial estate. The defendant occupied the adjoining unit and manufactured food additives which intermittently produced a curry or garlic-like odour. The smell passed through a porous and inadequately sealed party wall.

The claimant alleged that the odours impaired employees’ comfort and health, and claimed an injunction and damages in private nuisance. The deputy judge dismissed the claim, finding that the estate was light industrial, the odour was intermittent and insufficiently serious, and the defendant’s operations were normal for the locality.

The claimant appealed, principally contending that the judge had wrongly treated the defendant’s use as reasonable and had misapplied Southwark v Mills [2001] 1 AC 1.

1. Appeal dismissed. The Court unanimously upheld the dismissal of the private-nuisance claim. The deputy judge’s conclusion that the odours did not materially interfere with the claimant’s comfort and convenience was open to him on the evidence and his site visit.
2. Whether an odour is a private nuisance is an objective question of fact and degree. It requires consideration of the locality, reasonable use of property and reciprocal neighbourly regard, consistently with Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264. Ordinary use of premises can in law amount to nuisance; reasonable use is not a complete answer if the threshold of material interference is met.
3. The Court rejected the contention that the deputy judge had made a false analogy with Southwark v Mills [2001] 1 AC 1. He had correctly understood the authority and had not treated the normal character of the defendant’s activity as conclusively excluding nuisance.
4. The light-industrial character of the estate, the permitted nature of the manufacturing use, and the absence of action by environmental and health-and-safety authorities were relevant, but not conclusive, indicators of the level of discomfort. The intermittent character of the smell, its limited proven effects, and the long period before proceedings were begun supported the judge’s evaluative conclusion. The defective party wall was relevant to the permeation and possible remedial work, but did not require a contrary finding on material interference.
5. An appellate court may overturn an evaluative nuisance assessment only where it reflects legal error, misapplication of law to the found facts, or is obviously unsupportable. No such error was shown.

• Court of Appeal (Civil Division). The appeal was dismissed: [2011] EWCA Civ 987.
• High Court of Justice, Chancery Division. Mr N Strauss QC, sitting as a deputy judge, dismissed the claimant’s private-nuisance claim with costs by order dated 21 October 2010. No citation for that judgment is stated.