How far does the State's responsibility to protect citizens from the consequences of odor nuisance caused by intensive livestock farms extend? And how effective must these measures be? These questions were central to a ruling of the Hague Court of Appeal dated March 25, 2025.
In this case, the court confirmed that the State has a special duty of care to ensure that the human rights of its citizens are effectively protected. In the case of two of the plaintiffs, the court found that there had been a violation of the right to undisturbed residential enjoyment.
What was it all about?
A number of residents of livestock farms, who have been plagued by severe odor nuisance for years, accuse the State of insufficiently protecting their fundamental right to undisturbed residential enjoyment, in favor of the economic interests of livestock farming. Their daily lives have been disrupted, their homes are losing value and they feel trapped in their own living environment. They want an end to the odor nuisance and demand compensation.
Public welfare versus economic interests
When the question arises as to whether and, if so, what measures the State should take in the event of nuisance, a trade-off between different interests must be made. On the one hand, the legal system recognizes the economic importance of livestock farming and the function that these businesses perform in our society; agricultural businesses provide employment, food security and contribute to the economy. On the other hand, these economic interests must not lead to a structural sacrifice of the interests of local residents. The well-being of citizens - their health, residential enjoyment and living environment - deserves adequate protection. There must be so-called “fair balance.”.
The court's opinion
The court stressed that the State must intervene if this balance tilts too far toward economic interests and the welfare of citizens is seriously affected as a result.
In assessing the question of when there is unacceptable nuisance that justifies intervention by the State, the court of appeal based itself on the percentages of ‘odor nuisance’, qualified by RIVM on a scale from ‘bad’ to ‘extremely bad’. Although the court took the ‘extremely bad’ category as its starting point, the court of appeals set the bar higher, stating that in the case of the classification ‘extremely bad’ (an odor load starting at 25 odor units per cubic meter of air (ou/m³)), the State must intervene immediately. For two of the sixteen plaintiffs, this did not happen, or at least did not happen sufficiently.
The court stressed that it is not up to the courts to legislate. The State has a wide discretion, but in very extreme cases it may not wait to take measures, the court said. In addition to taking measures, the court ruled that the State is obliged to compensate for damages.
Fundamental shortcomings in protection against environmental nuisances
The court's ruling exposes some fundamental flaws in the State's handling of environmental pollution and protection of citizens. With this ruling, the court underlines that the State must make a fair balancing of interests and take effective measures to protect citizens.
In doing so, I note a number of problems:
- Outdated legislation that does not adequately protect citizens from the current environmental impacts of intensive livestock production.
- Complex and impenetrable regulations that do not take into account cumulative nuisances from multiple emission sources in the same area.
- The use of theoretical models rather than actual measurements to determine odor nuisance and odor abatement measures, systematically underestimating actual nuisance.
- Inadequate enforcement when emissions values are exceeded by livestock producers.
This case does not stand alone
The present case is - unfortunately - not an isolated case. For example, in other (environmental) nuisance issues, the aggregate effect of nuisance is also insufficiently taken into account. As an example: when assessing the permitted quantity of PFAS in drinking water, insufficient account has been taken of additional PFAS intake via air, food and consumer products, so that total intake quickly exceeds the safe level.
Noise pollution around Schiphol Airport presents a similar problem. For local residents, it is the sum of nuisances by successive aircraft movements that causes nuisance, while that cumulation does not appear to be sufficiently taken into account when determining the permitted level of nuisance. Moreover, flight nuisance is calculated rather than measured, with the State using obsolete information.
And will the livestock industry go free?
You may ask, “What about the livestock industry? Isn't that the one actually causing the odor nuisance? If the State has to pay damages, it comes out of our collective pockets. Is that fair? Or can livestock farmers hide behind the fact that they have a permit?”
The answer is: not always. Although a permit gives permission for a certain activity, it does not relieve the company of its duty to prevent or compensate for damage if it has acted unlawfully. A striking example is the situation in Groningen: although the Nederlandse Aardolie Maatschappij held all the necessary permits, it was still liable for the damage caused by gas extraction.
The recently rendered Dumpster judgment is also interesting because in it the Supreme Court ruled that a contractor could be liable for damage to an adjacent property, even if the contractor had been sufficiently diligent in carrying out the work. The Supreme Court attached importance to the fact that the party performing the construction work benefited from it, while the neighbor bore the burden. In such a case, the Supreme Court considered it reasonable for the profiting party to compensate for the resulting damage. In effect, the focus here shifts from the illegality of the conduct to its adverse effect.
In my view, this approach is consistent with the rationale behind our liability law: a just distribution of risks in society. When a commercial party makes a profit while local residents bear the burden, it is reasonable for the profiteering party to compensate for that loss.
Conclusion
With this ruling on odor nuisance, the court confirms that in situations of serious nuisance, the State has a duty to protect its citizens. Not just on paper with regulations that fall short in practice, but with effective protection that actually protects people from unacceptable nuisance. The State may not subordinate its obligation to protect the fundamental rights of citizens to the economic interests of livestock farming.
This ruling sets a precedent for similar cases involving serious nuisance from business activities, whether odor nuisance, noise nuisance, or other forms of nuisance. The ruling joins a broader public discussion about how our economy can be designed to serve human well-being, rather than the other way around. The identification of risks and subsequent effective protection are crucial in this regard.
In addition, I advocate that not only the State, but also the actual polluter can be held responsible when activities lead to unacceptable nuisance for local residents. This ensures a fairer system in which the bill ends up where it belongs: with the person who benefits from the activity, not with the duped neighbor or the collective treasury. Those who have the benefits also bear the burdens - a fair distribution of risks in our society.
This blog was written by Lieske de Vos. She no longer works for us. If you have any questions about this blog or would like to talk further about this topic, please contact Bojan Dekker.