An odour can be defined as a smell that is detectable. People have different abilities and tolerances of odours, and as such, we are faced with an often difficult task of establishing whether the odour is bad enough to cause a 'nuisance' or simply causes annoyance.
There are no laws that relate specifically to odour, nor is there a fixed level which constitutes a statutory nuisance. Individual circumstances differ, and each case has to be judged on its own merits. Complaints of odour which includes smokes, fumes, or gases are investigated under the Environmental Protection Act 1990.
In determining whether an odour causes a statutory nuisance, it has to be proven that the odour:
- Occurs frequently
- Is unreasonably strong
- Lasts for long periods at a time
In practice the odour would have to be a persistent problem interfering substantially with your well being, comfort or enjoyment of your property.
Making a Complaint
The issues outlined below should be considered before making a complaint:
- Identify the source of the odour, this is important as we are unable to pursue complaints where the source cannot be identified
- Consider how often the odour occurs, and what effect it has on you
- Consider whether the odour is the main issue, often an odour complaint is part of a greater and sometimes complicated neighbour dispute
Contact us to report an odour complaint.
You will be asked to keep a record, over a period of days or weeks, of what you can smell, for how long and at what time of day. The Council will then use this information to determine if there is any pattern to the problem and then seek to find the cause and resolve the issue.
If the odour is found to be giving rise to a statutory nuisance then an abatement notice requiring the person responsible to take remedial action may be served.
Whilst easily detectable, annoying, disagreeable and troublesome, not all odours give rise to a statutory nuisance. There may be insufficient evidence to prove that the odour is unreasonable enough to cause a nuisance or that despite someone's best intentions, the nature of the work they are undertaking means that the odour is unavoidable. This may seem unfair, however in such situations, the Environmental Health Section has no powers to pursue a course of formal action. The Environmental Health Section must consider the following:
Odour from commercial processes
Any industrial or commercial operation has a defence against statutory nuisance known as the 'The Best Practicable Means' defence. This means that if they are doing everything within their financial means and within the scope of current technical knowledge to prevent causing a problem, establishing a statutory nuisance would be unlikely.
In the case of a business with an authorisation, it is the compliance with the authorisation that is assessed rather than if a nuisance exists. Authorisations are enforced by the Scottish Environmental Protection Agency (SEPA) who can provide further information.
Odour from the land
In dealing with complaints relating to the spreading of manure or slurry on the land, the Environmental Health Section follow the informal advice provided by the Scottish Executive in the document:
It is accepted that there is to be a certain degree of odour arising from this activity
Separate guidance is available for bonfires under Atmospheric Pollution.
If you should wish to take your own action, Under Section 82 of the Environmental Protection Act 1990, you may make a complaint directly to the Sheriffs Court regarding an odour which you believe to be a nuisance.
If this should be your chosen course of action we would advise you to seek legal advice. Please note that you would be responsible for any costs incurred by such action.