[See also: Respondents' arguments on the alleged cause of action of an "odor hazard" and the relief claimed in respect of it, in paragraphs 430-446 of their summaries].
The Normative Framework
- In Civil Appeal Authority 3397/23 Strauss Ice Cream in Tax Appeal v. Gibran (published in Nevo, November 3, 2024), it was held, inter alia, in the matter of 'odor hazard' as follows:
And now to the third alternative discussed in the approval decision – the odor hazard. For the purpose of defining "smell", the Prevention of Environmental Hazards Law refers to the Prevention of Hazards Law, section 3 of which stipulates that "a person shall not cause a strong or unreasonable odor from any source, if it disturbs, or is likely to disturb, a person in the vicinity or passersby". It is easy to see that unlike in relation to air pollution, the Hazard Prevention Law does not include a definition of an odor hazard, but rather a prohibition on causing odor in certain circumstances. In order to determine the nature of these circumstances, section 5 of the Hazard Prevention Law, entitled "Rules of Execution", instructs that "the Minister shall enact, in regulations, rules for the implementation of Sections 2 and 3, and may, inter alia, determine what is a strong or unreasonable noise or smell". However, although regulations regarding the odor hazard were enacted by virtue of this section, which apply in certain circumstances (see, for example, the Regulations for the Prevention of Hazards (Prevention of Unreasonable Air and Odor Pollution from Waste Disposal Sites), 5750-1990; and see, in general, Schnur, at pp. 258-259), it appears that regulations relevant to the circumstances of the present case were not enacted (and in any case the parties did not argue in relation to such regulations). We are therefore left with the legislature's wording in section 3 of the Prevention of Hazards Law with respect to the characteristics of the odor that is prohibited to be caused, i.e., the smell being "strong or unreasonable", and the connection between it and a disturbance "to a person in the vicinity or to passersby". How should these characteristics be interpreted?