The legal landscape of odour issues in construction projects

Given the use of so many different processes and materials, the construction industry is no stranger to the challenges posed by odour emissions. Even those who work in an office know that some odours (fish) are considered more offensive than others (coffee). The same applies to smells arising from and in construction projects. For example, a strong smell of gas or chemicals is likely to offend the nostrils more than the earthy smell of excavated soil. This was precisely the issue which forced a contractor to halt work on a £75million residential scheme in East London back in April 2024.

While the physical aspects of construction are visible and measurable, odours are subjective and can be difficult to identify, leading to complex legal disputes as to liability for resolving issues relating to odour.

Legal recourse for odour issues

Understanding the legal framework surrounding odour control is important for construction professionals to mitigate risks and ensure compliance. As you will see below, odours in construction projects can have a number of different legal ramifications depending on the context and the circumstances in which they arise.  

Odours as a nuisance

From a developer’s standpoint, the Environmental Protection Act 1990 (“the EPA”) provides a legal basis for dealing with odours that constitute a ‘statutory nuisance’. In particular, those odours that:

• “unreasonably and substantially interfere with the use or enjoyment of a home or other premises”; or
• “injure health or be likely to injure health”.

In determining whether the odour is likely to be a statutory nuisance, local authorities use the following guidance and consider:

• where the smell is coming from;
• the character of the area;
• the number of people affected nearby;
• if the smell interferes with the quality of life of people nearby (for example, if they avoid using their gardens);
• how often the smell is present; and
• the characteristics of the smell.

Local councils are empowered to investigate complaints and, if necessary, serve abatement notices requiring the responsible parties to stop or restrict the odour in accordance with Section 80 of the EPA.

Delay

The local authority’s power to order the works to stop while a smell is investigated can be costly, as it can cause delay to the project. This, in turn, could lead to claims for additional time and loss and expense arising from the delay.

Who bears this risk in the context of delay relating to odour is a matter to be determined on a case-by-case basis depending on the terms of the contract, circumstances of the smell, and expert evidence.

Odours as defects

It is common for some new build structures to have a relatively inoffensive mild smell of construction materials that will often dissipate over time. However, smells that become more overpowering over time and linger may be a symptom of building defects.  

Expert investigations

Identifying the source and cause of the odour may require expert investigations on site. The investigation will usually first involve a sniff test with the human nose. Further testing may be required, together with laboratory analysis of samples where necessary for a more accurate diagnosis.

This was certainly the case on the site in East London, where Ardmore engaged specialist consultants to undertake air quality testing. They also tested materials removed from site during the piling phase for contamination, after works on a site in the same street were halted back in 2018 due to similar complaints. In the earlier case the cause of the smell was found to be hydrocarbon contamination.

How do the standard form building contracts deal with smells?

Whilst a contractor may, on first impression, be entitled to claim for a relevant event on the grounds that the local authority has exercised its statutory power after the base date which has affected execution of the works (clause 2.26.8.2 of the new JCT Design and Build, 2024 (“JCT DB 2024”), this is subject to the proviso that the exercise of the statutory power was not caused or contributed to by any act or neglect of the contractor or any of his persons.

If appropriate expert investigations conclude that the smell/odour flows from defect, the provisions of the building contract relating to the contractor’s obligation to carry out the works will apply. In which case, employers may be able to successfully challenge any application for an extension of time under clause 2.26.8.2 on the basis that the exercise of the statutory power was caused or contributed to by any act or neglect on the part of the contractor or the ‘Contractor’s Persons[KB1] ’.

 “carry out and complete the Works in a proper and workmanlike manner and in compliance with the Contract Documents, the Construction Phase Plan and Statutory Requirements and for that purpose shall complete the design for the Works Including the selection of any specifications for the kinds and stands of the materials, good and workmanship to be used in the construction of the Works so far as not described or stated in the Employer’s Requirements or Contractor’s Proposals, and shall give all notices required by statutory Requirements”.

In relation to materials, goods, and workmanship, the JCT DB 2024 provides that:

“All materials and goods for the Works shall, so far as procurable, be of the kinds and standards described in the Employer’s Requirements or, if not there specifically described, as described in the Contractor’s Proposals or other Contractor’s Design Documents. The Contractor shall not substitute any materials or goods so described without the Employer’s consent which, if given, shall not relieve the Contractor of his obligations.

 In consequence, a contractor appointed under an unamended standard form JCT DB 2024 could be liable for issues resulting in an unpleasant smell if it flows from:

• a failure to carry out the works in a proper and workmanlike manner;
• a failure to carry out the works in compliance with the designs / specification; and/or
• selecting materials and goods for the works that are not of the kind specified in the employer’s designs or in the contractor’s proposals.

The position would be the same under an unamended NEC 4.

The Birketts view

Given the nature of construction projects, issues with odours are likely to emerge from time to time. However, and as is always the case, liability in these circumstances will ultimately depend on the facts of the case, and the precise wording of the contract. Certainly where an odour does constitute a nuisance; bespoke provisions which specifically require a contractor to prevent nuisance, could negate any entitlement to an extension of time to which a contractor may otherwise be entitled under the JCT DB 2024.   

We would therefore urge contractors to consider provisions such as these in the context of the nature of the works and the location of the site, rather than merely ‘boilerplate’ type provisions. Together with appropriate pre-contract due diligence, this will enable the parties to price and allocate the risk of nuisance accordingly at the outset, rather than quite literally kicking up a stink with claims for time and money during the course of construction.