Page 101 - Q&A

Stopping your neighbour’s foul smells

March 2020
“About 3 years ago my neighbour started producing his own compost. Initially,
the smell was bearable, but it appears that he has ramped up his composting
and is bringing in manure as well. I suspect he is even selling or supplying to
others. The smell has become unbearable and pervades our entire house and
garden, even with the windows closed. We really can’t stand it anymore. I’ve
asked my neighbour to stop but he just ignores us. Is there anything we can do?”

In our law it is a general principle that a person cannot use his own property
in an unreasonable manner that substantially lessens another’s use and
enjoyment of their property. If this is done, it is generally referred to as creating a
nuisance which is an infringement on or disturbance of the use and enjoyment
of their property.

Where a neighbour therefore creates odours that affect the enjoyment of
another’s property, this could qualify as a nuisance which is unreasonable and
subject to sanction by our law.
Firstly, one should approach your neighbour and try to settle the matter in
an informal and amicable manner before proceeding to legal action. As it
appears you may have tried this already, it may mean that you would then
have to consider legal options, such as applying for an interdict to stop the
unwanted conduct.

In the recent case of Jacobs NO and Others v Hylton Grange (Pty) Ltd and
Others it was held that the proposition that conduct will be an actionable
nuisance if it is unreasonable must be understood in the sense that a variety of
factors including those typically seen to be nuisances such as the locality of the
properties, the suitability of the respondent’s use of its property, the extent and
duration of the interference, the times at which it occurs etc must be balanced.
All such factors and the circumstances of a particular case must be taken into
account to determine whether the nuisance is actionable or not.

If the unreasonableness of the nuisance is established, it must then be Litigation
ascertained whether the conduct is wrongful. Here, aspects like the constitutional
right of individuals to an environment that does not cause harm to their
well-being, as well as provisions of legislation such as the National Environmental
Management Act, which states that every person who causes significant
pollution or degradation of the environment must take reasonable measures to
prevent such pollution or degradation, or minimize or remedy the situation, are
taken into account.

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