[chrislk89]

Can smell which comes from a vehicle fall within the scope of nuisance i am aware of section 79(1) (Fa) of the EPA 1990 which does not appear to include smell.

i would appreciate anyones help on this.

[Forum User]

Yes, it could be a common law nuisance if it causes 'sensible personal discomfort'. If the vehicle is on industrial premises then it may fall within 79(1)(d) as well.

[chrislk89]

thank you, is there an authority for that common law nuisance? i assume this would apply to a vehicle which is passing a property. for instance a truck on the way to or from a landfill site?

[Forum User]

A vehicle travelling on a highway could be a public nuisance, but it's unlikely that a single vehicle would qualify. If there were dozens of heavy vehicles going back and forth at all times of the day and night then it would have more chance of being so. For a public nuisance to be actionable by an individual that individual needs to show 'special damage', i.e. in this case that he has suffered loss over and above that suffered by other members of the public who happen to use the highway. Look at, for example, Gillingham Borough Council v Medway (Chatham) Docks - there was no nuisance here but only because the operations of the docks had statutory authority, it doesn't seem to have been questioned that the noise and vibrations would otherwise have been a nuisance.

There could arguably be a private nuisance caused by a vehicle on the highway too but that is much more unlikely. An example might be if a car was parked on the road outside a remote house and then started flashing headlights and beeping horn to disturb the owner of the house. That wouldn't be a public nuisance as only one person would be affected, not a class of people.

Is this a problem question? If so just post the full question if you like

[chrislk89]

yes it is part of a question.

a resident of a house near to a waste processing site is complaining of the smell coming from the passing trucks as being a nuisance, there is no complaint of smell coming from the site itself.

is this capable of being nuisance?

Thank you for your answers above, i will research that case.

[Forum User]

Yes, it is at least capable of being a public nuisance. Just read the chapter in your tort textbook about public nuisance and I'm sure you will find plenty of cases to compare and contrast.

[chrislk89]

if advising the D could i use Allen v Gulf Oil Refining Ltd (1981) to argue that with the lawful use of a highway unless it is extreme circumstances then it is a risk that residents take?