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The best way to avoid industrial nuisance claims

Summer is a season of soothing and exciting noises birdsong, the soft whirr of a garden sprinkler and the tinkling tunes of an ice-cream van.

But noise can be a permanent risk to your business if you operate in the manufacturing, renewable energy, recycling and food and drink industries.

According to Neil Ham, partner at national law firm Clarke Willmott, complaints about offensive industrial noise, smells and vibrations could leave your business at the risk of expensive industrial nuisance claims from neighbours.

If the boundaries set by the good neighbour principle of give and take are breached, this leaves the door open for claimants to seek hefty compensation,” said Ham. This is a particular risk when residential properties are located nearby, or at least within the affected zone which can sometimes be fairly remote from the site up to 1km where the prevailing wind is in that direction. The character of the locality is also an important factor.

He said damages reflect compensation for the inconvenience suffered by claimants .

The length of time covered is typically the six-year period running up to when the claim was filed, but the total period involved can be more than eight years when allowing time for the court trial to take place,” he added. This quickly multiplies out in financial terms and large claims can potentially run into the millions. This can ruin businesses, particularly where payments need to be made within a matter of weeks following the courts decision.

Thankfully many industrial nuisance claims are entirely avoidable. Here are the best approaches:

(1) Respect the rules

Avoiding a claim in the first instance is the best course of action. Operate within and respect the conditions contained in the environmental permit and any planning permission. These are often imposed for public benefit including “odour boundary conditions” and can be useful evidence to support civil claims if they are breached.

(2) Listen to your neighbours

Claims are usually preceded by complaints. To avoid a potentially costly legal battle, it is essential that you take these complaints seriously and try to resolve the issues before they have to involve lawyers. Putting your head in the sand is not always the most advisable strategy. Operate responsibly and, if there is inevitable potential nuisance from your operations, ensure that appropriate abatement and improvement measures are in place in order to minimise nuisance to those around you.

(3) Insurance

Some claims might be covered by insurance, so check whether your insurance policy does so. Your insurer needs to be informed early to avoid late notification avoidance of cover by them, and liability should not be admitted by the operator. This is essential to avoid the insurer escaping its indemnity cover under the policy. Also, remember to involve your insurance provider in any communications with prospective and current claimants.

(4) Cooperation

If a claim has been intimated or issued, then you ought to cooperate fully to avoid criticism by the court. Claimants want to be as well prepared as possible and will usually request documentary ammunition to support their claims. If the operator is not prepared to volunteer it, claimants can apply to court for an order requiring compulsory disclosure of often commercially sensitive documents.

(5) Dont underestimate claims

If the nuisance is significant, it is quite possible that your business will be forced to stop or significantly reduce its operations, which can be disastrous. Suppliers and customers could be lost in favour of your competitors.

(6) Get legal advice

Successful industrial nuisance claims can financially cripple your business and result in unlimited fines and even imprisonment. There are also potential collateral, financial and commercial criminal consequences of court claims. Directors can be faced with prison sentences, especially where breaches are deliberate, flagrant or repeated and cause material damage to people or the environment.

Ham concluded: To prevent claims from being successful, you need to respect those around you and not act beyond the good neighbour reasonable principles. An environmental permit or planning permission having been granted is not a defence. Your business as well as your staff still need to operate responsibly and if the nuisance is inevitable, try making improvements in order to minimise disruption to others, together with prompt and full liaison with any regulatory body and also reasonable cooperation with the claimants.


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