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Nuisances caused by odours are regulated by the statutory nuisance provisions in the Clean Neighbourhoods and Environment Act (Northern Ireland) 2011. Section 63(1)(d) outlines that a statutory nuisance is ‘any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance’.
The Council is duty bound to investigate complaints of odour nuisance, however, this provision is confined to industrial, trade or business premises and has no application where the odour source is from residential premises. (There are other statutory nuisance provisions which can be used to deal with problems from residential premises.)
Where a smell is very unpleasant or persistent and has a serious impact on residents the Council may be able to take action.
What is an odour?
Odour is the smell that we are able to detect from substances, usually carried by air into our nose. The degree to which people are affected will depend on the sensitivity of their sense of smell and their tolerance of the odour in question. Odours arise from a wide range of sources e.g. accumulations of waste, decomposing animals (rodents/birds), bonfires, cooking, etc. The main concern with odour is its ability to cause a response in individuals that is considered to be objectionable or offensive.
What is involved in an odour complaint investigation?
If you make a complaint to the Council about a smell, to assist with the investigation, you may be asked to keep a record of what you smell, for how long and when the odour affects you. The Council will try to find the cause and examine what, if anything can be done.
A statutory nuisance is something which is so offensive and so prolonged that it significantly interferes with the enjoyment of an affected property. Judgement of whether or not an odour constitutes a statutory nuisance can take time, especially if the occurrence of the odour is unpredictable and only apparent for short periods of time.
The following relevant factors are taken into consideration during an investigation:
- Offensiveness of the odour
- Intensity of the odour
- Duration of exposure to the odour
- Frequency of the odour exposure
- Tolerance and expectation of the exposed subjects
The Council will aim to resolve the complaint by offering advice on good practice for minimising or preventing odour problems. However, if the Council finds that the odour is causing a statutory nuisance an Abatement Notice may be served requiring the person or Company responsible to take action to control it. The Abatement Notice is a legal document that is served on the person responsible for the nuisance or the owner or occupier of the premises. It instructs the stopping of the odour occurring and not to allow it to restart. If the Notice is not complied with a prosecution may be taken. There is a maximum fine of £5,000 in domestic nuisance cases and £20,000 for commercial and industrial nuisance cases.
If you make a complaint, the Council will endeavour to ensure your complaint details remain confidential but this cannot always be guaranteed. Additionally, in some circumstances, during investigation, it may be necessary to disclose personal details.
If the person responsible proves ‘Best Practicable Means’ is in place and no further improvement can be achieved the Council may be unable to act on behalf of a person making a complaint. This may be due to the type of problem, the circumstances or lack of evidence.
If after investigation the Council cannot take action, there is a range of independent action that can be taken privately by individuals. This includes complaining directly to the Magistrate’s Court under Section 70 of the Clean Neighbourhoods and Environment Act (Northern Ireland) 2011. Though rarely used, this procedure is simple and needs not be expensive.
For further information contact the Environmental Health Department at 0300 303 1777.