Q: I live in the country and downwind from an intensive livestock operation. Some days, the smell is intolerable. We moved out here from the big city to “get away from it all.” Is there anything we can do about this?
A: You may have a claim in nuisance. Private nuisance is often defined as an unreasonable interference with a person’s use and/or enjoyment of his land.
The cause of the nuisance has to come from outside the claimant’s property, but there doesn’t always have to be a physical trespass to the land. Sometimes it is, such as when water floods from one land parcel to another. But sometimes it is less tangible. Sounds, smells, pollutants and even vibrations can be nuisances.
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Courts can allow such claims when the “polluter” creates more trouble for the plaintiff than would be reasonable. In making this assessment, courts look at a number of factors such as the type of neighbourhood that exists and whether the offender’s conduct is reasonable given the problems he is causing.
Courts will also look at priority or “who was there first.” The degree of the problem created is a factor. If it is a low-odour, once in a while thing, you may not get much sympathy. But if you have to hide in your house, the courts treat that more seriously.
The answer to your particular question can depend on where you live, because some provinces have enacted legislation to deal with nuisances, especially in the agricultural context. Sometimes approvals are needed before a new intensive agricultural operation can be established.
Farmers are often exempted from nuisance claims as long as they are conducting their operations in a reasonable manner and following generally accepted agricultural practices. Many jurisdictions now have laws that permit these smells, much to the chagrin of neighbouring landowners.
However, a case from the mid-1990s in Ontario dealt with a mushroom farm, which used a vile smelling compost to grow the fungi. The judge found this process exceeded normal agricultural operations and awarded 16 landowners a total exceeding $260,000.
These cases deal with smells emanating from a livestock operation. What should also be carefully considered is the possible contamination of ground water or watersheds. This creates a situation where farm protective legislation comes into conflict with environmental protection legislation.
Environmental legislation is usually made superior to all the other laws. In my view, it would be far more difficult to defend against a claim that a livestock operation is damaging a watershed than it is to defend against a claim for smells coming from that same operation.
If you are a livestock producer, you need to be aware that lawsuits against producers have become more common. Livestock producers need to try to manage them in advance. Some of these tactics are pretty much common sense, such as getting to know who lives by your operation and dealing with them one-on-one.
Make sure your operation meets or beats all the legal regulations. Nothing weakens your legal position like having a substandard operation. Be part of the community and try to work together to solve the problem instead of just thumbing your nose at the other side.
If you are an adjoining landowner in the countryside, there may not be much you can do. Find out as much as you can about the operation and ensure it is complying with all applicable laws and regulations. Complain to the government and try to have the operation inspected. It may help, but the protective legislation is often a trump card for the livestock operator and you may be left with trying to sell out and move away.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.
