25 Feb 2026
News
By Dr Tim Everett, LLB LLM PhD FCIEH CMCIH FRSPH CEnvH
Can just the smell of smoke constitute a statutory nuisance?
The straightforward answer is yes it can, the key case being Griffiths v Pembrokeshire County Council [2000] Env LR 622. Griffiths, who kept hounds, was convicted of offences of failing to comply with an abatement notice prohibiting a smoke nuisance caused by burning animal carcasses and similar material. He appealed to the Crown Court, lost there, and then further appealed to the High Court on several points of law.
One of his arguments was that there had to be visible smoke, and in this case, the smoke from the relevant fire had been at too high a level to be visible from neighbouring properties. He accepted that his neighbours would have been able to smell the smoke. The High Court held that the smell of smoke came within the definition of smoke in section 79(7) of the Environmental Protection Act 1990 and therefore could be a nuisance coming within section 79(1)(b).
This case remains good law. It was cited in the later case of GW v The Information Commissioner, the Local Government Ombudsman and Sandwell MBC [2014] UKUT 0130 (AAC). This case was about whether the LGO had to provide a copy of the council’s privileged legal advice to the complainant. The problem here was the smell of smoke from neighbours’ chimneys in a smoke control area. At that stage, smoke from such chimneys was excluded from this category of statutory nuisance by virtue of section 79(3)(i) of the Environmental Protection Act 1990, with the relevant controls being under the Clean Air Act 1993. However, as the council was satisfied the neighbours were using the correct fuels in approved appliances, no action could be taken under that act. GW argued that while the section 79(1)(b) category was excluded, fumes and gases which were a nuisance under (1)(c) were not. The Upper Tribunal (UT) judge considered that this would undermine the exclusion, but did not reject the idea that the smell of fumes, etc. were potentially within scope – the idea of trying to separate out fumes from smoke (both of which could be present) would lead to an artificial result.
The UT decision was that the LGO could validly withhold the legal advice due to an exception in the Environmental Information Regulations 2004. This is not a binding precedent on the smoke/fumes interface – and may only have relevance in respect of chimneys in smoke control areas. Furthermore, because of the changes inserted by the Environment Act 2021, this may now be relevant only in Wales.
It does, however, raise a point that regularly comes up in training sessions: the suggestion that there is no way to control smells from domestic premises under the statutory nuisance procedure. This is fundamentally wrong. Apart from the Griffiths judgment in respect of section 79(1)(b) and the analogous argument outlined that smells from fumes would also be covered, there are other categories where smells could be relevant. Premises in a poor and unhygienic state could give rise to a nuisance under section 79(1)(a), smells from accumulations of putrescible rubbish are a source of complaints in respect of section 79(1)(e), and smells from piles of dog excrement, etc. could well trigger section 79(1)(f). Colleagues may be spoilt for choice!
As always, of course, whichever category of statutory nuisance is the basis for action, it will be necessary to be satisfied that one of the two limbs – prejudicial to health or a nuisance – applies. In the case of nuisance, the smells will need to be assessed on the usual basis, based on factors such as frequency, duration, severity, and so on. Colleagues will need to be satisfied that the matter is sufficient to materially interfere with the use and enjoyment of the neighbouring premises, from the perspective of an ordinary person – it is an objective test.
Smells will normally be dealt with under the nuisance limb. However, one of my favourite old cases – the Malton Local Board of Health v The Malton Farmers Manure and Trading Company Ltd (1878–79) LR 4 Ex D 302 – held that smells which made a sick person worse were sufficient to come within the then ‘injurious to health’ limb under the Public Health Act 1875.
Resources
For practical guidance on serving an abatement notice and statutory nuisance related to odour and smoke, take a look on RIAMS Libraries.
For essential training:
