You are on page 1of 48



Prepared by :

Prepared for : 1

An odour is a sensation/ axiomatic

Third Karolinka Institute Symposium on

Environmental Health :
the product of the activation of the sense
of smell, an olfactory experience


Rubbish odours

Mostly collected from household rubbish and

are the most common to create odours.
These odours are created by daily activities
and from decay of organic waste exposed to


Landfill gas Odours

Landfill gas is a mixture of gases produced as

waste decays within the landfills; known as
methanogenesis. This type of odour is
different from the rubbish odour as the
process occurs without oxygen. It is these
gases that create the rotten rubbish smell of
landfill gases

Anaerobic Leachate

Landfill lachate is liquid moves through or

drains from a landfill. The liquid may already
existed in the landfill or it was created after
rainwater mixed with the waste in the landfill.
It may occur without oxygen if the mixed with
biological/ chemical reaction. It is highly
odourous and has been described as having
an ammonia or sewage type smell
Scale of Name of business (Emissions Source) ODOURS
Distance of
odour influence
emissions (m)
Large Pulp Factory, rendering plant, fish metal 1000-5000
plant, rayon factory, celluloid factory
Middle Poultry farm, pig farm, wastewater 50-1000
treatment plant, coffee baking factory,
photogravure factory, off set printing
factory, car coating factory, metal coating
factory, chemical factory, casting factory,
rubber factory, food manufacturing factory,
composing factory
Small Restaurant, laundry, pet shop, bakery, 5-50
confectionary car repair shop, hairdresser, 6
Sources Emissions
Point sources (confined Sources) Vents, stacks (garbage),
Area sources (unconfined Swine operations, sewage
Sources) treatment plants,waste water
treatment plants, solid waste
landfills, composing, household
manure spreading, settling
lagoons or cattle feedlot
Building sources Hog confinement, chickens and
pig sheds
Fugitive Sources Bed or bio filter surface
Improper handling of public
amenities like public toilets, bus
railway station, foodcourts,
shopping malls,


May cause illness and damaging the

respiratory symptoms.

Nausea, insomnia and discomfort.

Very strong odour can cause nasal irritation,

trigger symptoms such as breathing problems
and asthma.

Affected places suffocating from the odour

problem can make the property value

Business (especially restaurants) will ceased

since few people can tolerate their appetite
with foul smell.

Kampung Sepat, Sepang

Reputation & Image

Malaysia has been rated as having the most

disgusting and dirtiest public toilets in South
East Asia.

Certainly will tarnished the image and

reputation to foreign countries who value
cleanliness above others.

Tourism will indefinitely get affected.

Section 22(2)(b) of the Environmental Quality Act
1974 states one provision in regards to discharge
of odour into the atmosphere. It states that unless
licensed, any person who causes or permits the
discharge of odours that is by the virtue of their
nature, concentration , volume or extent are
obnoxious or offensive shall be liable to a fine not
exceeding RM100,000 or 5 years prison or both.

As of today, this is the highest provision in

regards to odour pollution in Malaysia.
The effectiveness of this provision is clearly a matter of debate.
One problem could be due to the fact that the law provided is too
general and does not specifically state the nature of such
This would be rather detrimental especially for enforcers and
prosecutors. Since pollution is now being criminalized, the pre-
requisite elements of the alleged crime (mens rea & actus reus)
has to be formulated within the written act. As such, what
constitutes it? This is really important as now, the burden of
prosecution is to prove beyond reasonable doubt, which
obviously is harder.
Cases in regards to odour pollution are usually filed in court by
Prosecution Officers from various agencies. The powers of these
Prosecutors are restricted within the Sessions & Magistrates Court
only. If a case is lost, or penalty imposed is too low, they could
only appeal by filing one towards the AG Chambers. Would the 13
Still, there are other mechanisms in which Malaysia
could deal with the problem of odour pollution.
Coming back to the issue of AG's office presumed
reluctance to entertain appeal, we may suggest to
the AG's Office to post some of their DPP's in the
Department of Environment, so they could solely
focus on pollution crimes.
Besides the EQA, Section 67(1)(c) of the Local
Government Act 1976 discusses that public
nuisance arises where there is an interference with
a public rights.
One could argue that since enjoyment of fresh
odour is a matter of public right, interference to
such enjoyment may give rise to an offense under

Odour Pollution could fall within the realm of Tort of

Nuisance in initiating proceedings against such
perpetrator. There are two forms of nuisance
generally; public and private.
It is important to note that it would be a civil
proceeding, not a criminal one. Besides that, a set
of facts giving rise to a claim in public nuisance
may also resulted in an action for negligence and a
defendant may well be sued for both torts in the
The basic structure that one needs to follow to
adopt this is primarily the ones formulated in the
case of Rylands v Fletcher. The rule imposes 15
The word something that is likely to cause
mischief seems to be very general. Has any case of
its kind ever applied here in Malaysia with relates to
In Dato' Dr Harnam Singh v Renal Link (KL)
Sdn Bhd,[1996] 1 AMR 1157, The plaintiff is
alleging nuisance against the defendant in that they
are emitting over the plaintiff's premises, noxious
and offensive fumes, vapours, gases, chemicals,
smells and toxic materials which have caused him
to suffer injuries.
Damages were awarded to the plaintiff, in which the
court states that actual damages need not be
established if nuisance is caused by smell and it has
This is a landmark case in which the first of its kind in
Malaysia to actually lay down the relation between
disturbing odours and the law of nuisance. Thus, we
could conclude that as long as any smells causes
discomfort to another party, that particular smell
itself is relevant to be damaging the plaintiff though it
does not cause any actual/visible damages to anyone.

As in Malaysia, it could be argued that best legal

mechanism in combating odour pollution would
seemingly be via the Tort of Nuisance. Being a civil
proceeding, the strict need of proving beyond
reasonable doubt would be relaxed and now it is
merely in the balance of probability.


The most common approach to regulating odour

impacts is through the interpretation of odour
nuisance. The origins of odour nuisance regulations
come from English Common Law which balances the
rights of individuals. One has the right to swing their
arm up to the point that a closed fist approaches
another persons nose. At that point, the other
persons right not to be assaulted prevails.

To interpret odour nuisance standards, it is

necessary to explicitly define what type of odor
episode you are trying to mitigate and set
frequency, intensity, duration values appropriate
To be a nuisance, an odour episode must be
unreasonable. While a single odour episode may be
unpleasant and disruptive, it may also have been
accidental or unavoidable. Odor episodes that re-
occur over a period of time become preventable
and are an unreasonable imposition on the
surrounding community.

The relationship between frequency and duration

and frequency and intensity are inversely related.
Odour episodes with low odour concentrations and
persist for short periods of time can be tolerated
more frequently than high odor concentrations that
Regulations are in place to protect citizens from bad
smells, but for the law to become involved, a smell must
first be deemed a statutory nuisance under the
Environmental Protection Act 1990.
The Act defines odour as being fumes, gas, dust, steam
or smell and the Environmental Protection team of your
local council have a responsibility to investigate
If the smell is found to be a nuisance and the
perpetrators deemed in breech of conditions, the council
then has powers to fine the perpetrators of the smell up
to 20,000 and also to force remedial action to be taken.
A complainant has to contact the Local Councils
environment team. They have a responsibility 20to
Interestingly, this report has to include descriptions on
the gravity of such odour nuisance. Then, the Council
will determine the nuisance through its level of stength,
frequency, level of disturbance, duration, and whether
it is deemed to interfere with quality of life inside their
home of an average person.
From this, we could see that the Law here is actually
incorporating Tort of Nuisance and also the elements of
Ryland v Fletcher within a written Act and procedures
so the matter could be dealt with accordingly.
The councils environmental team will ask the
complainant to keep a diary or logbook of when, what
times and for how long he/she detects the smell which
they will then use to help determine the level and
frequency of nuisance that is being caused and 21its
However, there are some smells they wont be able
to do much about. These include cooking smells
from domestic properties (although they may have
a word with the residents on a complainant's
behalf) and certain expected smells.

Some unpleasant smells are deemed normal or

incidental to where you live, for instance if you live
in the middle of the countryside, you may be
expected to put up with a reasonable amount of
manure odour at certain times of the agricultural
year. Or if you live near a sewage treatment plant,
or refuse centre, then it may be seen as inevitable
that you should detect odours associated with that
industry from time to time. 22
However, if the council feel that the odour
constitutes a statutory nuisance, then they
may serve an abatement notice and require
the person or persons responsible to take
remedial action.

If the smell is excessive, individuals also

have the opportunity to make a complaint
directly to a Magistrates court rather than via
their local council. If the complaint is upheld,
fines can be given of up to 5,000 with a
daily fine of 500 for every day it goes on.
Wheeler v JJ Saunders [1995] 3 WLR 466 Court of

The claimant, Dr Wheeler, owned a farm which had a

farmhouse and some holiday cottages. He lived in the
farmhouse and let out the holiday cottages. He leased
the farm to the defendant, JJ Saunders ltd. JJ Saunders
obtained planning permission to build a Trowbridge
house on the farm for the purpose of keeping pigs for
breeding. Two years later he obtained permission to
build another Trowbridge house. The second house was
built just 11 meters from the farmhouse and holiday
Dr Wheeler brought an action in nuisance in relation24 to
the noise and smells emanating from the pig houses.
Held: The appeal was dismissed. The
granting of planning permission differs from
statutory authority and confers no immunity
from an action in nuisance.

The granting of planning permission may

change the neighbourhood which may make
it more difficult to establish a nuisance. It
does not actually authorise a nuisance.

Peter Gibson LJ:
The defence of statutory authority is allowed on the
basis of the true construction of the scope and effect of
the statute. Parliament is presumed to have considered
the competing interests in the particular circumstances
which are the subject of the statute and to have
determined which is to prevail in the public interest in
authorising the particular development and use of land
and whether or not compensation is to be paid to those
whose common law rights are adversely affected by the
authorised development and use. But in the case of
planning permission granted pursuant to the statutory
scheme contained in the town and country planning
legislation it is far from obvious to me that Parliament
must be presumed to have intended that in every case 26 it
Barr v Biffa Waste Services Ltd [2012] EWCA Civ
The case raises an important question of principle:
namely the extent to which operating a landfill site under
a regulatory permit provides a defence to claims in
nuisance arising from that activity.
The Court of Appeal, allowing Barrs appeal and
dismissing Biffas cross-appeal, held that it is not a
defence to a claim for nuisance to show that waste
disposal activities giving rise to a nuisance were carried
out in accordance with a landfill permit and without
negligence. The grant of a permit does not confer a
statutory immunity on the operator of a landfill site and
does not alter the character of the land such that use of
that land in accordance with its terms is a reasonable use
of land. The common law of nuisance remains unaffected
There are however certain problems in regards to the
protection of odour pollution in the UK. Though it seems
that the Councils initiative to scrutinize all the requisite
elements prior to taking an action is rather good, one could
argue on the period of such research. If it is taken too long,
wouldn't it be more detrimental towards the society if the
alleged pollution keeps in going on that time?
The Councils power after clarifying the odour pollution is
to serve an Abatement Notice on the person(s) or company
responsible. Sometimes, if not already in place, the
Environmental Officer can ask that Best Practicable Means
are put in place, which means that if there are things that
can be done to help minimise the odour, these steps are
Nothing is mentioned if whether the Councils have
prosecution powers against the perpetrators. The status28 of
Odour pollution is primarily governed by the Environmental
Quality Act 1974. Other provisions that may assist in
curtailing odour pollution could be said is in existence within
the Local Government Act. Besides that, local authorities
are given the power to enact their onw by laws in dealing
with this. Pollution as a whole falls under the purview of a
criminal act, thus the procedures (report, investigation,
prosecution, sentence) must be accordingly followed.
The Environmental Protection Act 1990 is the highest law in
the UK that governs all pollution, including odour. Actions are
taken by Local Councils upon receiving a report. Complain
could also be made directly to a Magistrate. These
proceedings does not seem to be criminal in nature. Thus
laws regarding criminal proceedings may be relaxed.
One good approach that the Malaysian law could
adopt from its UK counterpart is that its leniency to
allow the public to directly report an excessive
odour pollution to a Magistrate. Besides that, the
law also creates a clear guideline in dealing with the
matter, right from how a report should be made,
how the authority would scrutinize that report, and
even what are the requisite actions that they should
take after that.

The Malaysian Law could also incorporate the

elements if nuisance directly into our written law, as
done in the UK. With this, the elements are codified
instead of merely being discussed through case-to-
case basis. The citizens now has no option but 30to
Reviewing to the matter of how the issues of odour
pollution are dealt with through case laws, we could see
that one major similarity between Malaysia and UK is
that actions againts such pollution perpetrators are
done through the virtue of Tort, specifically the Tort of
Nuisance. It needs to be noted that both jurisdictions
does have a written law in existence to deal with this
matter, especially under the purview of Criminal Law.
This may be due to the fact that initiating it under the
Law of Tort is much clearer due to the foundations laid
in Rylands v Fletcher. It will also avoid the heavier
burden of prove needed to be present in a criminal
The Dr Harnam's case merely laid the foundation that
nuisance in the form of odour is an accepted form of
nuisance in Malaysia as long as it is disturbing one's
comfort. The English cases seemingly goes into further
In Malaysia,The Environmental Quality Act does
states that unless licensed, any person who
causes or permits the discharge of odours that is
by the virtue of their nature, concentration ,
volume or extent are obnoxious or offensive shall
be liable. Thus, it could be argued that odour
pollution might be permissible if the perpetrators
have in their possession a valid license, a rather
different approach compared to our English

No case laws have completely underline the exact

definition of unless licensed here. It is
interesting to see if the courts would adopt the
strict approach used by the English Courts 32in
Through the Malaysian and English cases, few
suggestions could be made. Though depending on
case laws are something normal, it could be
suggested that what are formulated by the judges
within it must be incorporated to our Environmental
Quality Act to provide a better and broader horizon
to how does odour pollution could be controlled.

This will provide better platforms, particularly for

legislators and enforcers. The matter of odour
pollution should no longer be considered as trivial
in nature as it will cause irresponsible entities to
continue committing it due to them being aware of
its weaknesses in enforcements.
k Sector Weakness
Limitation of
of research Complain
and tools System

Lack of Lack of
Enforceme Educatio
nt of Law n

The animal waste contributes to odour, in particular
hydrogen sulfide (H2S) and ammonia. These can
cause continuous source of strong, persistent and
unreasonably offensive odours. The resulting of air
pollution is interfering with surrounding areas.
For example in 1998, a large-scale pig farming in
Negeri Sembilan had led to discharges of polluting
effluent into tributaries of the Sepang River, which
sits on the boundary of Selangor and Negeri
Sembilan. The pig sector has been identified as the
main sector that contributes to major problem to the
In Malaysia, odour nuisance is rarely reported.
The affected population did not have sufficient
knowledge to complain about the odour issues.
They also believed their complaints would not be
addressed seriously by the relevant authorities and
thought that the complaints process would be lengthy.
For example, CAP is disappointed in the manner the
Penang State government, Municipal Council of Seberang
Perai (MPSP) and other government agencies has
handled the complaint of odour pollution that has had a
great impact on the community in Kampung Tok Subuh,
Juru near Bukit Mertajam, Seberang Perai Tengah.
The understanding of laws in general and
environmental laws in particular by the public
is limited.

Most of the active complainers to public

services were often those with higher income,
higher education and a tendency to be
younger than non-complainers.

The capacity of authorities to handle violations
of the environmental law is weak with
cumbersome procedures to enforce the law.

When penalties are issued, fines are often low

and there is no requirement for the defendant
to take steps to restore the breach.

The lack of follow-up means that one violation

may be repeated many times.
Most of the researchers tend to focus on air pollution
such as hazes. Issues on odour pollution have not
been given much attention.

Lack of proper technological tools for odour


Such instruments are only owned by a handful of

research institutes such as Malaysia Rubber
Research Institute, Malaysian Agricultural Research
and Development Institute (MARDI) and The
National University of Malaysia (UKM) and a few
other institutions 39
Management of
Livestock Excrement
and Yard Cleanliness

Reward Role of
Mechanism NGO

Role of Technologi
Public es of
Authorities Odour
Buffer Zone
Effective of between Odour
Complaint Emission Areas
Channels. and Surrounding
Areas 40

Effective management of livestock waste and

clean livestock yards will reduce the intensity
rate of odour concentration from the
livestock farms

In actual sense, reduction of odour is difficult

to be evaluated and proven through written


The use of buffer zones is another strategy to

reduce the impact of malodours in residential zones.
Avoid build the residential development near large
areas sources like sewage treatment farms, cattle
feedlots or landfills.
The buffer zone is built of trees around the odour
emission areas. The trees not only able to moderate
temperatures of the environment but also filter dirty
air through it.

There are two main types of technologies to treat odour.
1. Physical/chemical technologies remove bad-
smelling emissions by changing them with chemicals
(chemical scrubbers), burning (incinerators) and by
adsorbing the emissions with carbon.
2. Biological technologies remove emissions using
biofilters that pass the emissions upwards which at
the same time trickling a cleansing solution
downwards (biotrickling filters).
It is effective and economical for low
concentrations of contaminants in large quantities
of air.
Biological systems for odor control rely basically on
the microorganism activity that converts odor 43
Transparency in the complaints process and data
management is necessary whereby the public is well
informed of the actions taken by the relevant
authorities over their plight.
Community complaints must be resolved, and not
neglected in favour of a corporation.
Once regulators have higher quality information,
more integrated information systems, and more
internal capacity for priority setting it will not be
difficult for them to manage pollution more cost-
Local authorities and government agencies must take
into consideration environmental impacts including
odour impacts to communities when planning and
issuing licenses to premises.
The authorities need to regularly check the place that
has odour complaints and ensure that the operation is
carried out under best management practice.
The authorities such as the Department of
Environmental in particular and the Department of
Veterinary Services should conduct active promotion to
the public so that they are able to report on the
activities causing the odour pollution.

A reward mechanism should be implemented

to encourage business, organizations and
local people to detect violations, and take
action to address pollution at the local level.

NGOs dedicated for the cause of protection of the
environment, can play a positive role in enforcing
environmental laws on odour pollution.

They can educate the people on odour pollution

and help them bring cases against polluters.

NGOs can take the affected people to the court and

provide all necessary assistance to fight the case.

Odour pollution is indeed the most complex of
all the air pollution problems.

From an environmental perspective, offensive

odour emissions affect the quality of life

In Malaysia, there are many issues and

challenges still faced by the local authorities
to actualise an integrated odour management