February 24, 2022
Each winter we embark on a camping expedition to a secluded site on the Pumicestone Passage. Aside from fishing and relaxing, the only obligatory activity is afternoon aperitifs, set against the majesty of the Glasshouse Mountains as they salute the end of another day, backlit in brilliant orange, pink and purple hues, the sun skilfully navigating its descent between them. Idyllic. Perfect. Mostly.
Across the passage, 25 kilometres due west from camp, tucked in between Donnybrook and Wild Horse Mountain, lies a poultry farm with a stench so foul (*please observe how I resisted the temptation to insert the obvious wordplay here) a westerly breeze has been known to cause campers to prostrate themselves on the muddy shores, fumbling with fishy fingers to wrench their unwashed clothing to their faces with futile fortitude as they fail to filter the festering air infiltrating their olfactory systems.
Donnybrook locals have been complaining about the pungent odour for more than a decade. The oophagous bureaucrats helpfully advise them to keep a journal of any disagreeable odours, making sure to note the time, duration, intensity, wind direction and speed, temperature, rainfall and anything else that is likely to diminish the relentlessness of their pursuit to rid the township of the malodorous galliformes.
Odours, unlike noises, are incapable of being easily and accurately measured. At least, that would have been my confident proclamation prior to my extensive (five-minute) research on dynamic olfactometry. For now, let’s just say we cannot measure the pungency of the goat curry wafting from the apartment beneath us with the same affordable accuracy as we can measure the decibels of the enthusiastic sousaphonist in the apartment above us. From an evidentiary perspective, a noise pollution complaint is capable of carrying considerably more persuasive objectivity (and ensuing likelihood of success) than a “nose pollution” complaint.
Now to the point (possibly). A client in a commercial complex on the Gold Coast recently sought our advice in relation to this by-law:
A lot may not be used for the purpose of pickled onion manufacturing.
Yep – that’s what it actually says. Let’s ignore the usual statutory by-law prohibitions for now and pretend this by-law is valid and enforceable and that its legitimate intended purpose is to prevent an occupier from causing a nuisance to other occupiers. Let’s also pretend we can download an app to our phones capable of accurately measuring the intensity of smells. And let’s say there’s a doughnut manufacturer already operating from a lot in this complex that’s emitting billows of cinnamon fumes at levels higher than any previously recorded vinegar vapour from a pickled onion manufacturing facility anywhere, ever. Based on the (make-believe) evidence before us, isn’t the doughnut factory causing a nuisance? Of course not, because who doesn’t love doughnuts, right?
Wrong. What might be Chanel No.5 to some is Old Spice to others.
So, even if we could measure smell like we can measure sound, subjectivity is likely to thwart any nuisance claim involving smell. I mean, the judiciary doesn’t consider smoke-drift to constitute a nuisance, so what hope do we have (ignoring the recent ephemeral hysteria caused by Adjudicator Rosemann’s “hazardous” smoke decision) in protecting ourselves against our neighbours’ noxious fetor? Sure, sounds are also subjective, but when you’re awakened in the early hours of the morning by your neighbour pumping the amplifier to 11, it matters little whether the sound was created by AC-DC or Johann Sebastian.
In the meantime, who would have predicted mandatory mask-wearing and social distancing would have so many corollary benefits? Even at 1.5 metres, halitosis sufferers have never been closer to their friends and families. Maybe the nose could learn a thing or two from its twin siblings, the ears… will nose plugs be a thing of the future?
Article contributed by Andrew Suttie, Nicholsons Solicitors.