“About three 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 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..
In your situation, if you can prove that the compositing by your neighbour is in fact creating an unlawful nuisance, you may be in a position to obtain relief and stop your neighbour or require him to minimize the odours his composting activities are creating. The court may consider all positions, including the rights of your neighbour to enjoy his property when deciding on the matter. To carefully assess the merits of your case, we recommend you consult with your attorney as soon as possible.