The Law of Bad Smells: Making and Adjudicating Offensiveness Claims in Contemporary Local Law

Abstract

AbstractThe sense of smell seems to have resisted the kind of objective measurement process that might have facilitated settling competing claims about offensive smells by applying a general rule or standard. As a result, authorities,including courts,cannot avoid making subjective judgements of taste. A nuisance lawsuit out of Ontario regarding a mushroom farm, or rather its smells, is used here as one source of material about the difficulties of adjudication in this subfield of the “law of the senses.” Attention is also paid to a curious quasi-judicial entity, Ontario’s Normal Farm Practices Protection Board, charged with resolving, mainly through mediation, disputes about farm smells between farmers and non-farming neighbours. Overall, the article shows that the ex post facto, situated and complaint-driven logic of nuisance that nineteenth-century law used to govern offensive noises as well as nasty smells, and which left plenty of room for subjective judgements of taste, keeps reappearing in the present day. Nasty smells seem particularly impervious to modernization, that is to being managed through objective measurement and preventive regulation.