Flanders is characterised by a very high concentration of livestock. In 2022, the Flemish livestock population totalled no fewer than 45,5 million poultry, 5,4 million pigs and 1,25 million cattle. Almost all of these animals are kept in large industrial livestock complexes. These complexes regularly cause odour nuisance for local residents. The most recent written environmental survey from 2018 shows that in Flanders, ‘agriculture’ is a major source of odour nuisance.
This odour nuisance gives rise to a large number of disputes over planning permission. Apart from these planning permission issues (including the possibility of requesting an amendment to the planning permission), a number of alternative approaches that can be taken to tackle unacceptable odour nuisance are described below, based on court rulings.
Specifically, there are four different avenues to explore: criminal law, nuisance caused to neighbours, administrative measures and public liability. Each of these avenues has its own advantages and disadvantages. If you have any questions, please contact info@dryade.info.
1 Criminal law
1.1 Reference
Rechtbank van eerste aanleg Oost-Vlaanderen, afd. Oudenaarde van 14 januari 2020 (unpublished).
1.2 Brief summary
For years, a group of local residents suffered from unacceptable odour nuisance caused by a poultry farm. According to the residents, the operator had not taken sufficient measures to prevent this odour nuisance.
The Public Prosecution Service summoned the operators to court, and local residents joined the proceedings as civil parties.
The court ruled in favour of the local residents and found that the operators had breached the duty of care provision set out in Article 5.4.9, §2 of the Decree of 5 April 1995 on general provisions concerning environmental policy (DABM), as well as Article 5.4.9, §1 DABM due to a failure to comply with the specific environmental conditions. A fine, civil damages and a ban on operations were imposed.
1.3 Relevant legal provisions
Article 5.4.9. DABM
Ҥ1. The operator of a classified establishment or activity is required to comply with the general, sector-specific and specific environmental conditions.
§2. Regardless of the planning permission granted, the operator must always take the necessary measures to prevent damage, nuisance, incidents and accidents that have a significant impact on people or the environment.
“Regardless of the environmental permit granted, in the event of incidents or accidents that have a significant impact on people or the environment, the operator shall immediately take the necessary measures to minimise the consequences for people and the environment and to prevent further potential incidents and accidents.”
Article 16.6.1. DABM
Ҥ1. Any breach of the environmental regulations laid down in this Title, whether committed intentionally or through a lack of due care or caution, is punishable by imprisonment for a term of one month to two years and a fine of between 100 and 250,000 euros, or by one of these penalties.
Article 16.6.6. DABM
“§1. In addition to the penalty, the court may, either on its own initiative, or at the request of the public prosecutor, or at the request of the authorised official, or at the request of the civil party, order that the site be restored to its original condition, that the unauthorised use be discontinued, or that remedial works be carried out.”
2 Neighbourhood nuisance
2.1 Reference
Vredegerecht 15 mei 2023, 22A3007/5, buurtbewoners t. 3M
2.2 Brief summary
Residents living near the 3M chemical plant in Zwijndrecht suffered serious disruption as a result of the PFAS pollution originating from this plant.
In May 2022, the family brought a summons against 3M before the Magistrates’ Court in Antwerp. Among other things, the local residents sought an order against 3M, on the basis of strict liability strict liability for excessive nuisance to neighbours in accordance with Article 3.101 of the New Civil Code (NBW), to pay a provisional sum totalling EUR 2,000.
The justice of the peace ordered 3M to pay the provisional sum.
In certain cases, odour nuisance may also qualify as excessive neighbourhood nuisance. In such cases, it will be crucial to be able to objectively assess the odour nuisance on the basis of odour studies and/or inspection reports. Whether the neighbourhood nuisance is excessive will always require a case-by-case assessment.
2.3 Relevant legal provisions
Section 3.101 of the New Civil Code
“Excessive noise from neighbours
§1. Neighbouring owners are each entitled to the use and enjoyment of their property. In exercising this right, they shall respect the established balance by refraining from causing any nuisance to their neighbour that exceeds the normal inconveniences of living in close proximity and for which they are responsible.
In order to assess the excessive nature of the nuisance, account must be taken of all the circumstances of the case, such as the time, frequency and intensity of the nuisance, and the initial use or public purpose of the property from which the nuisance is caused.
§2. Any person who breaches the aforementioned balance is obliged to restore it. The court shall determine which of the following measures are appropriate to restore the balance:
1° a monetary payment to compensate for the excessive nuisance;
2° reimbursement of the costs associated with remedial measures carried out on the affected property to reduce the nuisance to normal levels;
3° provided that this does not in itself create a new imbalance and does not prevent the normal use and enjoyment of the property, an order to cease the act causing the imbalance or to take measures on the offending property to reduce the nuisance to a normal level.
§3. If one or both of the neighbouring properties are subject to a right in favour of a third party who holds an attribute of the right of ownership, paragraphs 1 and 2 shall apply to that third party in so far as the nuisance has been caused by the exercise of the attribute attributable to him.
If the nuisance arises from work that has been expressly or tacitly authorised by the owner concerned or the holder of this right, it shall be deemed to be attributable to them.
§4. The claim for excessive neighbourhood nuisance is subject to a limitation period in accordance with Article 2262bis, § 1, paragraphs 2 and 3, of the former Civil Code.”
3 Administrative measures
3.1 Reference
Raad van State, 24 maart 2016, nr. 234.237
3.2 Brief summary
Residents living near a pigsty have lodged numerous complaints about odour nuisance caused by the pigs kept there. The mayor of the municipality has imposed administrative measures on the operator, prohibiting her, amongst other things, from keeping any more pigs on the farm and requiring her to remove all remaining Residents living near a pigsty have lodged numerous complaints about odour nuisance caused by the pigs kept there. The mayor of the municipality has imposed administrative measures on the operator, prohibiting her, amongst other things, from keeping any more pigs on the farm and requiring her to remove all remaining pigs by 15 November 2012 at the latest. Ultimately, the Flemish Minister for the Environment imposes a further administrative measure prohibiting the temporary introduction of new animals.
These latest administrative measures were challenged by the operator before the Council of State, but without success.
3.3 Relevant legal provisions
Bestuurlijke maatregel
Article 16.4.5. (et seq.) DABM
“Once an environmental infringement or offence has been established, administrative measures may be imposed.”
Administrative measures may be imposed on any person who has committed an environmental infringement or an environmental offence, as well as on any person who has instructed others to carry out acts constituting an environmental infringement or an environmental offence.
The Flemish Government may determine the circumstances in which administrative measures must be imposed.
(…)”
Article 16.4.18. DABM
Ҥ. 1. The following persons may, if they are aware of an environmental infringement or offence, request the persons referred to in Article 16.4.6 to impose administrative measures:
1° natural and legal persons who suffer direct harm as a result of the environmental infringement or offence;
2° natural and legal persons who have an interest in the prevention of the environmental infringement or offence;
3° legal persons within the meaning of the Act of 12 January 1993 on the right of action for the protection of the environment.
§2. The request for the imposition of administrative measures must be sufficiently substantiated and demonstrate that an environmental infringement or offence has been committed.
(…)”
Environmental offences relating to odour (non-exhaustive list)
Article 5.4.9 DABM
Ҥ1. The operator of a classified establishment or activity is required to comply with the general, sector-specific and specific environmental conditions.
§2. Regardless of the planning permission granted, the operator must always take the necessary measures to prevent damage, nuisance, incidents and accidents that have a significant impact on people or the environment.
“Regardless of the environmental permit granted, in the event of incidents or accidents that have a significant impact on people or the environment, the operator shall immediately take the necessary measures to minimise the consequences for people and the environment and to prevent further potential incidents and accidents.”
Article 4.1.3.2. VLAREM II
“Without prejudice to the application of Article 4.1.2.1, the operator shall, as a reasonably prudent person, take all necessary measures to ensure that the neighbourhood is not inconvenienced by odours, smoke, dust, noise, vibrations, non-ionising radiation, light and the like.”
4 Government liability
4.1 Referece
Burgerlijke rechtbank den Haag, 14 september 2022, ECLI:NL:RBDHA:2022:9119
4.2 Brief summary
In 2020, a group of Dutch citizens took legal action against the Dutch state on the grounds of inadequate protection against odour nuisance from livestock farms. This group of citizens sought compensation for loss of enjoyment of their homes and damage to their health.
On 14 September 2022, the Civil Court in The Hague ruled against the Dutch State, finding that it had acted unlawfully towards eight residents living near livestock farms. The court found this to be the case “because the protection against odour nuisance afforded to them [the local residents] by the [Odour Nuisance and Livestock Farms Act] is, or has been, inadequate in the light of Article 8 of the ECHR, and no reasonable and appropriate measures have been taken in their regard”. The court also ordered the Dutch State to pay compensation (the amount of which is yet to be determined).
A similar case is also pending in Flanders
4.3 Relevant legal provisions & case law
Article 8 of the ECHR – Right to respect for private and family life
- Everyone has the right to respect for their private life, family life, home and correspondence.
- No interference by any public authority shall be permitted in the exercise of this right, except insofar as is provided for by law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others.
HvJ, 9 december 1994, 16798/90, López Ostra t. Spanje
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