Statutory Nuisance - a Practical Guide
By William Birtles and Members of Old Square Chambers Environmental Law Group
1.
WHAT IS STATUTORY NUISANCE?
1. BACKGROUND
Part III of The Environmental Protection Act 1990 (EPA) is titled "Statutory Nuisance
and Clean Air" and deals with statutory nuisances, clean air and controls over offensive
trades.
Sections 79 - 82 replace the previous provisions of the Public Health Act 1936 and the
Public Health (Recurring Nuisances Act) 1969 with a more streamlined system of
procedures which are similar to those contained in the Control of Pollution Act 1974
relating to noise. Noise nuisance which was formerly covered by those provisions has
now been incorporated into Part III EPA.
How the new provisions should be interpreted and whether light can be shed on their
meaning by reference to previous case law and practice is of importance. The long title of
the EPA describes itself as an Act ..."to restate the law defining statutory nuisances and
improve the summary procedures for dealing with them".
This supports the presumption that for those definitions which remain unchanged from
the 1936 Act the old case law may be followed. Where the definition has changed then
careful consideration should be given to whether application of the case law under the
previous Act is appropriate.
2.
DUTY TO INVESTIGATE AND FOLLOW UP COMPLAINTS
Under s.79(1) every local authority is placed under a duty to ensure their area is inspected
from time to time to detect any statutory nuisance. They are also required to take such
steps that are reasonably practicable to investigate a complaint of statutory nuisance made
by a person living in its area. Total inaction would not satisfy the requirement and a once
only inspection is unlikely to either. Where a local authority fails to satisfy the
requirements the Secretary of State has powers to take action.
3.
HOW DOES THE COMMON LAW FIT IN?
As a common law remedy nuisance has in the recent past been infrequently used but
greater environmental awareness and the provisions relating to statutory nuisance in the
EPA may have given it a new lease of life. As the area develops and more cases are
brought both in common law and statutory nuisance these may set new parameters as to
what the Courts will consider is an actionable nuisance. Because the EPA does not
include a definition of nuisance it is worth re-examining the essential common law
principles and cases which will help in assessing whether an activity or operation
complained of is an actionable nuisance under the EPA. In R v. Carrick District Council
ex parte Shelley [1996] Env.L.R. 273.
Carnwath J. said:
"The word "nuisance" has given rise to more controversy, in the
context of the Public Health Act 1936 and its predecessor. In principle
"nuisance" has its common law meaning, either public or a private
nuisance".
4.
DEFINITION OF NUISANCE IN COMMON LAW
Under the common law nuisance is divided into two areas, private and public
nuisance. People with an "interest in land" will claim under private nuisance,
those without, for example children, will claim under public nuisance. The
principles that guide the Courts when deciding whether a nuisance has occurred
under either of these heads are essentially the same.
1.
PRIVATE NUISANCE
The essence of a claim in private nuisance is based on the unlawful interference
with a person's use or enjoyment of land. There are three categories of private
nuisance:
i.
causing an encroachment on a neighbour's land (when it closely
resembles trespass);
ii.
causing physical damage to a neighbour's land or building or works or
vegetation upon it;
iii.
unduly interfering with a neighbour in the comfortable and convenient
enjoyment of his land.
It is unnecessary to say anything about the first category here which is selfevident and easily provable.
4.
Injury to a person or property
Examples may be noise from factories working round the clock causing
people to lose sleep, damage to trees or washing from factory
emissions, methane gas leaking from a nearby capped landfill which
causes houses/businesses to vacate. Examples are:
Halsey -v- Esso Petroleum Ltd. [1961] 1 WLR 683 - where smuts from
an oil distribution depot caused damage to curtains and car body work.
St. Helens Smelting Company -v- Tipping (1865) 11 H.L.C. 642 where acid smuts discharged from smelting works caused damage to
tree tops on neighbouring land.
In both cases the plaintiff succeeded notwithstanding arguments put
forward by the operators to the effect that they were using best
available means to eliminate pollution and that they were fulfilling an
important function by supplying goods and services and employing
people. Also, whereas in a "sensitivity" claim, discussed below, the
Court will undertake a balancing act of the plaintiff's and defendant's
interests in assessing whether there is a nuisance, this is less likely to
occur in a case where actual damage is shown.
5.
Interference with personal comfort, for example the "smells and bells"
or sensibility cases
Sensibility cases relate to complaints of discomfort and inconvenience
caused by such things as noise, smells and dust but where there is no
physical harm. The standard of inconvenience has to "materially
interfere with the ordinary physical comfort of human existence not
merely according to the elegant or dainty modes or habits of living but
according to plain, sober and simple notions and habits obtaining
amount the English people". Walter -v- Selfe (1851) 4 De G. and Sm
315, 322 per Knight Bruce V.-C.
Two recent examples are illustrative of the court=s approach. In
Murdoch & Murdoch v. Glacier Metal Company Limited [1998]
Env.L.R.732 the Court of Appeal held that noise exceeding the
maximum level recommended by the World Health Organisation did
not constitute an actionable nuisance per se. It was not necessarily the
case that there was a common law nuisance if sleep in a house in an
area of mixed uses was disturbed by noise. Although the question of
sleep disturbance was an important matter to take into account, it was
necessary to consider the overall situation. In taking into account the
standards of the average person and the character of the neighbourhood
when deciding whether the noise was sufficiently serious to amount to
a nuisance, the trial judge had applied the right test. The lack of
complaints by other local residents, the presence of a by-pass in close
proximity to M=s home and evidence from the local environmental
health officer that there was no statutory nuisance were relevant
considerations, and the judge=s decision would therefore be upheld.
In Baxter v. London Borough of Camden [1999] Env.L.R.561 the
Court of Appeal held that the ordinary use of residential premises
without more was not capable of amounting to a nuisance. Ordinary use
could only give rise to a nuisance if it was unusual or unreasonable
having regard to the purposes for which the premises were constructed.
It was clear that the conversion of a Victorian house into three flats in
1975 did not change the purpose for which the house was used and
there was nothing unreasonable about it. It followed that the noise
complained of was not capable of giving rise to liability in nuisance.
A balancing act must be undertaken. This involves balancing the
defendant's right to conduct operations with the plaintiff's right to have
the use and enjoyment of property without undue interference. In
undertaking this exercise the Courts will take into account a number of
matters in approaching the central question of whether the defendant is
using the property reasonably or not. These factors which the Court
will look at are set out in Section 5.
2.
PUBLIC NUISANCE
Public nuisance is defined as "an act, not warranted by law, materially affecting
the reasonable comfort of a class of Her Majesty's subjects who come within the
sphere or neighbourhood of its operation". The question of whether a local
community can amount to a "class" is a question of fact in every case.
0.
1.
2.
There is no need to have an interest in land for a claim in public
nuisance so that if a whole family including children wants to claim
damages the action must be made in public nuisance. If the only
remedy sought is an injunction then the householder can claim in
private nuisance alone.
The usual examples of public nuisance given relate to such things as
carrying on an offensive trade, keeping a brothel and obstructing the
highway. Many of the areas that used to be classed as public nuisances
are now specifically covered by statute. Examples that are more
relevant today might be contaminating water making it unfit to drink,
stench from a nearby factory, or noise from building works.
Public Nuisance as a criminal offence
Public nuisance is a criminal offence but an individual can also institute
civil proceedings and claim damages. A recent example of a
prosecution for public nuisance followed the Camelford water
contamination when South West Water PLC were prosecuted in 1992.
3.
The Attorney General can prosecute for public nuisance but this is now
unusual.
Local authorities can prosecute under s.222 of the Local Government
Act 1972, for example:
Shoreham By Sea UDC -v- Dolphin Canadian Proteins (1972) 11
L.G.R. 261. The defendants ran a factory in an industrial area. The
factory produced feeding stuff, fertilizer and tallow from animal waste.
The plant emitted unpleasant smells. The evidence of nuisance came
from a school situated 100 yards away which occasionally had to keep
the windows closed in summer making it so hot that it was difficult to
work. Nearby factory workers could not eat their lunch sometimes
because the smell was so unpleasant and local householders claimed
that they could not use their gardens. The court. in finding for the
plaintiffs, said that the local people were not entitled to expect to sit in
a sweet smelling orchard because of the nature of their locality.
However, he was not satisfied that best practicable means had been
used to reduce the problems.
4.
How Public Nuisance relates to Statutory Nuisance
Nowadays local authorities are more likely to use s.79 EPA but under
s.80(7) the use of best practicable means ("BPM") provides a defence
to a prosecution in certain circumstances. As a result, an individual
citizen's case for public nuisance may stand a better prospect of success
because although BPM is a factor that the Court will take into account,
it will not automatically provide a defence (except in cases where the
activity is being conducted by under statutory authority or construction
works).
5.
Apart from the BPM issue what other differences are there?
A local authority cannot get compensation on behalf of its residents,
only an injunction to stop the nuisance. Sometimes a nuisance may not
be abatable, for example when the Court thinks BPM have been used
and the works must continue, in which case compensation will be an
important remedy to mitigate the problem. Or, if the nuisance is serious
and has gone on for some time the damages might be substantial. Also,
local authorities have finite resources and may have problems with
undertakings as to damages when they get an injunction against the
perpetrator of the nuisance.
For an individual to bring a claim in public nuisance a plaintiff must
show that he suffered special damage peculiar to himself in respect of a
public right. In Halsey -v- Esso Petroleum Ltd. [1961] 1 WLR 683 it
was held that lorry noise which prevented a man from sleeping
amounted to such special damage even though there had been no
damage to his health.
5.
THE BALANCING ACT
To be actionable the nuisance must be substantial and unreasonable. Irrespective of
whether one is considering a claim in common law or for statutory nuisance the question
of whether a nuisance exists is one which requires a balancing act to be made between
competing interests. Factors to take into account when assessing whether something is a
nuisance are as follows:
1.
The excessiveness of the conduct
This rule speaks for itself and is fundamental in carrying out the balancing
exercise, i.e. one barking dog may be reasonable whilst twenty may not. See:
Farrer -v- Nelson (1885) 15 Q.B.D. 258 where land was used
to rear pheasants which then became overstocked and caused a
nuisance. It was not the conduct itself that caused the
nuisance, but the excessiveness of it.
2.
Defendant's malice
Motive may have legal significance and malice may render an otherwise
innocent act an actionable nuisance. See:
Christie -v- Davey [1893] 1 Ch. 316 The parties were neighbours. P taught
piano. The noise was not excessive but D could hear it. D got irritated to the
extent that every time there was a lesson he would bang on the wall. It was held
to be a nuisance and the malicious motive was taken into account.
Hollywood Silver Fox Farm -v- Emmett [1936] 2 KB 468 P was a fox farmer. D
was his neighbour who held a grudge. During the mating season D let off a
shotgun next to the premises which scared the breeding foxes. It was held if D
had merely been shooting on his own land that would not have been a nuisance,
but because it was a malicious act it was actionable.
3.
The Character of the neighbourhood This only applies to the personal
comfort/sensibility cases, not where there is actual damage. The most famous
case here is Sturges -v- Bridgeman (1879) 11 Ch.D. 852 where the Judge in
setting out the rule stated that what may be a nuisance in Belgravia might not be
one in Bermondsey!
Although this particular example is unpalatable to some, the essence of the rule
still applies today. The basic principle is that if you live in the middle of a city
you cannot expect the same level of peace, cleanliness and air quality as you
would if you lived in the country.
Another example is St. Helens Smelting Co. -v- Tipping (1865) 11 H.L.C. 642.
Tipping bought property close to a smelting works and acid smuts damaged the
trees on his land. The defendants said that he had to accept this as part of the
locality of the neighbourhood. It was held that this was not a defence against
actual loss. But compare what the Court may have ruled if this had been a
sensibility case and there had been no damage to property or person.
The Bermondsey/Belgravia point has been given new impetus in the case of
Gillingham Borough Council -v- Medway (Chatham) Dock Co. [1993] QB 343.
In that case the former naval dockyard was given planning permission to operate
as a commercial port. Very soon heavy traffic was using the area 24 hours a day
causing severe disturbance. The local authority, Gillingham B.C., had been
aware when planning permission was sought that lorry movements to the port
would increase night noise levels particularly. Planning permission had been
granted because of the economic benefits which were thought to outweigh the
environmental problems that would ensue.
After complaints the local authority sought an injunction under Section 222
Local Government Act 1972 to prevent traffic movements between 7 p.m. and 7
a.m. on the grounds of public nuisance. The application failed because Buckley
J. said that the grant of planning permission had changed the character of the
area to the extent that the claim of nuisance had to be considered in the light of
its existing environment, not that which existed in the past.
However, this principle is open to doubt in view of the fact that the planning
authorities have no jurisdiction to authorise nuisances. In Wheeler -v- J. J.
Saunders Limited [1995] 2 All E.R. 697 the Court of Appeal has indicated that,
even if it is correct, the principle can have no application to ordinary grants of
planning permission and should be confined to large scale developments.
4.
Continuous or repetitive incidents compared to isolated incidents and the time
the nuisance occurs
In Bamford -v- Tumley (1862) 3 B. & S.66 the Court said "that may be a
nuisance in Grosvenor Square which would be none in Smithfield Market, that
may be a nuisance at midday which would not be done at midnight, that may be
a nuisance which is permanent which would be no nuisance if temporary or
occasional".
Generally there must be an element of continuance and a single act will not
normally amount to a nuisance. Temporary or occasional interference involving
little actual or potential harm will rarely constitute a nuisance.
Miller -v- Jackson [1977] QB 966 where cricket balls from a village green kept
going into a nearby house. Held to be a nuisance.
Bolton -v- Stone [1951] A.C. 850 where a person was hit by a cricket ball in
their garden and then tried to sue in nuisance. Held that the claim failed because
balls had only been hit outside the ground six times in the last 30 years.
5.
Unusual Sensitivity - "The Eggshell Skull Rule"
If a plaintiff is particularly sensitive to a type of nuisance, it is not actionable
unless one can show that the nuisance would have affected a "reasonable"
person.
What is the thinking behind this principle?
The Court's view is that a person should not be able to increase his neighbour's
liabilities because they carry out special activities on their premises.
Robinson -v- Kilvert (1889) 41 Ch.D. 88 D let out part of a building to P for use
as a paper warehouse. D kept part of the building for a purpose which required
that the air had to be kept hot. The heat damaged P's paper. The paper damages
was of a type that was particularly sensitive, ordinary paper would not have been
damaged. Held that there was no nuisance because ordinary paper would not
have been damaged.
Devon Lumber Co. Ltd. -v- MacNeill (1987) 45 DLR (2nd) 300 P lived next
door to a cedar mill. The mill created fine dust. The wife and children suffered
from allergies and asthma that were exacerbated by the dust. There was no
evidence that other people in the area were affected by the dust. Held that
damages were not recoverable in respect of the aggravation of the wife and
children's pre-existing condition because this amounted to particular sensitivity.
6.
What if the activity is inherently unreasonable?
If all types of paper had been damaged or if all the people in the area had
suffered from asthma as a result of the pollution, then the act would be a
nuisance.
McKinnon -v- Walker [1951] 3 D.L.R. 577 D's process resulted in noxious
fumes being emitted on to P's land. P grew orchids which all died. D argued that
P was unusually sensitive. It was held that there was an actionable nuisance
which was independent of the special sensitivity of P.
6.
DEFINITION OF STATUTORY NUISANCE
1. A statutory nuisance is defined by Section 79(1) as meaning:
. any premises in such a state as to be prejudicial to health or a nuisance;
a.
2.
smoke emitted from premises so as to be prejudicial to health or a
nuisance;
b. fumes or gases emitted from premises so as to be prejudicial to health
or a nuisance;
c. any dust, steam, smell or other effluvia arising from an industrial trade
or business premises and being prejudicial to health or a nuisance;
d. vany accumulation or deposit which is prejudicial to health or a
nuisance;
e. any animal kept in such a place or manner as to be prejudicial to health
or a nuisance;
f. noise emitted from premises so as to be prejudicial to health or a
nuisance;
a. noise that is prejudicial to health or a nuisance and is emitted
from or caused by a vehicle, machinery or equipment in a
street (or in Scotland, a road);
g. any other matter declared by any enactment to be a statutory nuisance.
New areas of Statutory Nuisance
The definition, broadly speaking, is in similar terms to that set out in Section 92
of the Public Health Act 1936. It should be noted, however, that paragraphs (b),
(c) (ga) and (h) are new categories of statutory nuisance.
Paragraph (b) specifically includes smoke Paragraph (c) specifically includes
fumes or gases Paragraph (h) refers to any other matters declared by any
enactment to be a statutory nuisance. See later for examples.
7.
FURTHER INFORMATION ON THE CATEGORIES OF STATUTORY NUISANCE
1. Section 79(1)(a) re-enacts s.91(1)(a) PHA 1936.
"any premises in such a state as to be prejudicial to health or a nuisance"
Premises is defined as land, building, vessels and there is no requirement
relating to whether the premises are occupied or as to ownership. Such
considerations are only relevant when considering on whom to serve
proceedings. The only fact to take into account is that the premises exist and
their state. It is necessary to look at the premises as a whole and not individual
defects and their effects. For example, in the case of water penetration it is the
effect of the water coming into the premises that needs to be looked at rather
than the source when assessing whether a nuisance exists. In Haringey LBC -vJowett, The Times 20/6/99, the Divisional Court held that traffic noise from
vehicles, machinery or equipment in the street rendering premises to be in such a
state as to be prejudicial to health or a nuisance did not constitute a statutory
nuisance for the purposes of s.79(1)(a) as amended by s.2 of the Noise and
Statutory Nuisance Act 1993.
2.
Section 79(1)(b) "smoke emitted from premises"
Smoke is defined by Section 79(7) as including soot, ash, grit and gritty particles
emitted in smoke". It is likely that the words "emitted from premises" mean that
the smoke must affect other premises and that it is not enough for the smoke to
cause a nuisance to occupiers of that same premises. Section 79(2) exempts
premises occupied on behalf of the Crown for naval, military, air force or
defence purposes and those occupied by a visiting force. Other circumstances
are exempted by Section 79(3) including smoke emitted from steam railways,
industrial or trade premises and chimneys of a private dwelling within a smokecontrolled zone.
3.
Section 79(1)(c) "fumes or gases emitted from premises"
This is a new category of statutory nuisance. Section 79(7) defines fumes and
gas as meaning "any airborne solid matter smaller than dust and vapour and
moisture precipitated from vapour". The words "emitted from premises" are
likely to have the same meaning as above. Section 79(4) restricts this section to
private dwelling emissions although commercial or industrial premises might
well be caught under section (d) below and may be subjected to local authority
air pollution control under Part I of the Act.
4.
Section 79(1)(d) broadly re-enacts Section 92(1)(d) of the PHA 1936: "any dust,
steam, smell or other effluvia arising on industrial trade or business premises
...".
Dust does not include chimney smoke which is dealt with under paragraph (b).
This is the only category of statutory nuisance specifically confined to
"industrial, trade or business premises" which are defined in Section 79(7). The
definition of "trade" in past case law is wide enough to include manufacturing
and processing and the term "business" has been construed as being almost
anything which is occupational as distinguished from pleasure. It is clear from
the case law that most activities other than those that are purely domestic or
recreational and one off transactions would be included.
5.
Section 79(1)(e) re-enacts Section 93(1)(c) of the 1936 PHA: "any accumulation
or deposit ..."
It must be shown that the accumulation is a "threat to health in the sense of a
threat to disease, vermin or the like", see Coventry City Council -v- Cartwright
[1975] 1 WLR 845. It was held not to extend to "an accumulation of inert
matter, building materials, scrap iron, broken glass or tin cans merely because
that matter may cause physical injury to a person coming on to the land". It
must, however, be arguable that such an accumulation could encourage vermin
to collect.
6.
Section 79(1)(f) re-enacts Section 92(1)(b) of the PHA 1936: "animals".
There is contradictory case law on whether this provision is able to regulate
noise as well as smell and other matters prejudicial to health or a nuisance
caused by keeping animals. Since the wording of the statute is not restricted, any
matter that comes within the definition of a statutory nuisance should be covered
by it.
7.
Section 79(1)(g) "noise emitted from premises ..."
Section 79(7) defines "noise" as including vibrations. The noise must be emitted
from premises as stated above. "Premises" is now expressly defined as to
include land. Previous case law indicates that premises would not cover noise
made in streets or public places. Practically speaking this type of action may still
be difficult to bring. An exemption to statutory noise nuisance is included in
s.79(6) which states that the provisions do not apply to noise from aircraft
except model aircraft.
8.
Section 79(1)(ga) "noise that is prejudicial to health or a nuisance and is emitted
from or caused by a vehicle, machinery or equipment in a street (or in Scotland,
road)".
This was introduced by the Noise and Statutory Nuisance Act 1993 and covering
noise or vibration from equipment, machinery or vehicles in a street, overcomes
some of the difficulties which arose under paragraph (g) (noise from premises )
in cases of street noise. The special procedures introduced in respect of
nuisances, contained in Section 80A and 81(1A) and (1B) should be noted, and
should the fact that this category of statutory nuisance is disapplied in various
circumstances (traffic noise, noise from certain military sources, and noise from
demonstrations), by SS 6(A).
9.
Section 79(1)(h) "any other matter declared by any enactment to be a statutory
nuisance".
Matters now covered include:
Section 141 of the Public Health Act 1936 relating to insanitary
cisterns, etc.;
Section 259 of the 1936 Act (in connection with watercourses, etc.)
Section 268 of the 1936 Act relating to tents, vans, etc.
Section 151 of the Mines and Quarries Act 1954 (fencing abandoned
and disused mines and quarries).
8.
ANTICIPATED NUISANCES
Section 80(1) allows the local authority to take action in anticipation of a statutory
nuisance occurring which should assist an authority when dealing with transient
sources/causes of nuisance.
1.
Supplementary Provisions
Section 81(1) provides that where more than one person is responsible for a
nuisance, s.80 will apply to each of those persons whether or not they would be
responsible individually. Section 81(2) allows an authority to take action in
respect of a statutory nuisance, totally or partly outside their area but which
affects their area. If the recipient of the Notice appeals then the case must be
heard in a Court in the area where the alleged nuisance occurred.
9.
"PREJUDICIAL TO HEALTH OR A NUISANCE"
The section states, in respect of each class of statutory nuisance, that it must be
"prejudicial to health or a nuisance".
1.
Nuisance
Nuisance is a separate test and it is not necessary to show that the activity is
prejudicial to health in order for it to be a statutory nuisance. In the case of Betts
-v- Penge UDC [1942] 2KB 154 where the premises were in a state of disrepair,
the front door and some of the windows having been removed by the landlord,
this was sufficient to constitute a statutory nuisance. It was held that it is
sufficient to show the premises or activity in question are such as "to interfere
with personal comfort and thus constitute a nuisance".
More recently it has been argued that a nuisance under the Public Health Acts
must be qualified by reference to the general spirit and intention of the Acts as
dealing with matters relating to health, disease and vermin. This interpretation
might limit those cases where the activity complained about relates purely to
whether it is a nuisance and where there is no risk to health. Salford City
Council -v- McNally [1976] AC 379.
It has also been held that a nuisance in terms of what could be defined as a
statutory nuisance has to be given a common law interpretation, i.e. either
private nuisance or a public nuisance. See National Coal Board -v- Neath B.C.
[1976] 2 ER 478.
On that basis interference with neighbouring property is a prerequisite for
private nuisance and something which affects the comfort of the public at large
is necessary for public nuisance.
In that case the Court said "a nuisance could not arise if what has taken place
affects only the person or persons occupying the premises where the nuisance is
said to have taken place".
Wivenhoe Port -v- Colchester BC [1985] J.P.L. 175 was a case in relation to
statutory nuisance caused by dust from the handling of soya meal. It was held in
the Crown Court that a nuisance within the definition of statutory nuisance must
interfere materially with the personal comfort of residents in the sense that it
materially affected their well being although it might not be prejudicial to their
health. Dust falling on vehicles might be an inconvenience to their owners and
might even diminish the value of the car but this would not be a statutory
nuisance. In the same way dust falling on a garden, or inside a shop would not
be a statutory nuisance but dust in the eyes or hair even if not shown to be
prejudicial to health would be an interference with personal comfort.
The above cases were decided before the EPA came into force. It is arguable
that they should be followed because the spirit and intention of the EPA is to
improve procedures that enable local authorities to exercise control over certain
activities that detract from the environment as opposed to being solely
concerned with matters that threaten public health.
Activities that cause a nuisance only should be actionable and the legislation
provides that this is the case. Any interpretation that restricts a claim of statutory
nuisance to a situation where there is a risk to health or interference with
personal comfort incorrectly interprets the spirit and express purposes of the
EPA. If the Wivenhoe case is followed it will severely limit the application of
the EPA to improve environmental quality where there is an absence of
interference with human comfort.
2.
Prejudicial to health
Section 79(7) define "prejudicial to health" as meaning "injurious or likely to
cause injury to health". This is the same definition as used by the 1936 Act, and
it makes it clear that likelihood of injury to health is included as well a actual
injury. The definition of "prejudicial to health" could also be widely interpreted
by the Courts, particularly if it is seen in the light of World Health
Organisation's definition of health. This states that health is "a state of complete
physical, mental and social well being ad not merely the absence of disease or
infirmity". So far the English Courts' interpretation of "health" has been narrow
although with increased health and environmental awareness there is scope for
broadening this.
Examples of cases where the issue of health has been addressed are:Coventry City Council -v- Cartwright [1975] 1 WLR 845 which dealt with
whether an accumulation of inert matter was prejudicial to health. The Court
stated the underlying concept of each section is that that which it struck at is an
accumulation of something which produces a threat to health in the sense of a
threat of disease, vermin or the like.
Bennett -v- Preston BC (unreported Environmental Health April 1983) where
the court held that unsafe electrical wiring could contribute to premises being
prejudicial to health, if not from the threat of electric shocks, and fires, at least
from the smoke that would result from a fire.
GLC -v- Tower Hamlets LBC (1984) 15 HLR 54 where the Court held that
condensation and its associated mould growth could make premises prejudicial
to health.
Southwark LBC -v- Ince (1989) 21 HLR 504 where premises were regarded as
prejudicial to health by reason of noise from road and rail traffic penetrating the
dwelling because of inadequate sound insulation.
In Cunningham v. Birmingham City Council [1998] Env.L.R.1 a two judge
Divisional Court held that the test of Aprejudicial to nuisance was an objective
one and held that a Stipendiary Magistrate was wrong in determining the case by
relating the Respondents duties to the particular health requirements of the
Appellant=s son who suffered from autistic-spectrum syndrome, which caused
behavioural problems and made him a hazard in limited space. The kitchen to
the property was very small and argued to be dangerous, having regard to the
son=s condition.
In R. v. Bristol City Council ex parte Everett [1999] Env.L.R.587 the Court of
Appeal upheld Richards J. who held that the statutory nuisance regime was not
intended to apply in cases where the sole concern was that, by reason of the state
of the premises, there was a likelihood of an accident causing personal injury.
Although the language in the statutory provisions were capable of embracing
accidental physical injury, it was reasonably clear from the legislative history
that the expressions were not intended to be so wide in their scope: that kind of
problem fell outside the legislative purpose. Thus if premises could not amount
to a statutory nuisance by reason of the fact that they were in such a state as to
create a likelihood of accident causing personal injury, it followed that a steep
staircase could not give rise even if it created such a likelihood. The Court of
Appeal went on to hold that there was an implied power on the part of a local
authority to withdraw an abatement notice which it had served. The exercise of
such a discretion could only be challenged on Wednesbury grounds.
2.
THE ABATEMENT NOTICE
1. Section 80 of the EPA provides that where a local authority is satisfied a statutory
nuisance exists or is likely to occur or recur, it must serve an Abatement Notice which
will require abatement or prohibit or restrict its occurrence or recurrence and may require
the execution of work or taking of steps for such purposes, specifying the time within
which compliance is required. In the Carrick case, above, Carnwath J held that "must"
means must.
2. The Abatement Notice may be dismissed or varied on appeal, but if the Abatement
Notice stands, or stands in a modified form, there is a discretion to prosecute for breach,
with stiff financial sanctions in the event of conviction. Recent case law has focussed on
the form of Abatement Notices since defendants to criminal proceedings have sought,
sometimes successfully, to have the proceedings struck down as a nullity by reason of
defective Abatement Notices. There is now a significant body of case law to give
guidance both to those drafting an Abatement Notice, and to those seeking to challenge
the Notice.
3. So far as material Section 80 provides as follows: A80(1) Where a local authority is
satisfied that a statutory nuisance exists, or is likely to occur or recur, in the area of the
authority, the local authority shall serve a notice (Aan Abatement Notice) imposing all or
any of the following requirements (a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or
recurrence; (b) requiring the execution of such works, and the taking of such other steps,
as may be necessary for any of those purposes,
and the notice shall specify the time or times within which the requirements of the notice
are to be complied with.
So far as the term Astatutory nuisance is concerned, this term is defined in S. 79 of the
Act and its 8 sub-paragraphs (each dealing with a separate head e.g. smoke, or fumes, or
dust, or animals etc.) and each sub-paragraph ending with the words: Aso as to be
prejudicial to health or a nuisance.
4.
5.
Challenges to Abatement Notices in the reported cases range from the hopeless to the
hopeful, as follows.
Examples of hopeless challenges are the following:
(i) a failure to specify whether the nuisance alleged comes under the limb of prejudicial
to health on the one hand or nuisance on the other. What was important was that the acts
constituting the nuisance were sufficiently alleged that the person served with the notice
knew what was required to abate it: Lowe & Watson -v- South Somerset D.C. [1998]
Env. L.R.143.
(ii) a failure to insert the time for compliance; R -v- Tunbridge Wells J.J. [1996] Env.
L.R. 88.
6.
An example of a fairly hopeless challenge is a failure within the Notice to specify the
nature of the nuisance (See S. 80 (1)(a) of the Act). The nature of the nuisance will
generally be treated as obvious to the recipient of the Notice. This was so even in respect
of a Notice so sloppily drafted as to make no reference whatsoever to noise, barking or
dogs, in a dog barking case; Myatt -v- Teignbridge D.C. [1995] Env. L.R.78.
Accordingly whilst the nature of the nuisance ought always to be specified, I am not
7.
8.
aware of any decided case in which a Notice has been struck down for a failure so to do.
The same approach applies to a complaint by an individual: East Staffordshire B.C. v.
Fairless [1999] Env.L.R.525; Pearshouse v. Birmingham City Council [1999]
Env.L.R.536. In the latter case a strong Divisional Court (Lord Bingham C.J.; Collins J.)
held that the purpose of giving notice under Section 82 was to enable the recipient of the
notice to make any necessary inspection and, if so advised, take practical and effective
steps to cure or eliminate the subject matter of the complaint. The aggrieved person did,
however, have to give the recipient of the notice such detail as was reasonable in all the
circumstances. The procedure was intended to be a simple one and should not be bogged
down in unnecessary technicality or undue literalism.
An example of a hopeful challenge is a failure to specify works required under S.
80(1)(b) of the Act. This has proved to be very fertile terrain for challenges and it is only
very recently that a settled approach to this difficult problem is emerging.
In summary form, the challenges to Notices on grounds of failure to specify work
required to be carried out to abate the nuisance have failed, and will fail, in noise
nuisance cases involving:
Crowing cockerels;
Barking dogs; Budd -v- Colchester B.C.[1997] Env. L.R.128;
Raves and discos; East Northamptonshire D.C. -v Fossett [1994] Env. L.R. 388;
Live entertainment at a jazz bar; Surrey Free Inns Plc -v- Gosport B.C. [1999]
Env.L.R.750 (C.A.).
Challenges to Notices for failure to specify works required to be carried out to
abate the nuisance have succeeded in respect of:
Structural insulation work to be carried out in a residential building to prevent
noise/vibration from adjacent stamping press; Sterling Homes -v- Birmingham
City Council [1996] Env. L.R. 121;
Soundproofing of a void between two residential flats; The Network Housing
Association -v- Westminster City Council [1995] Env. L.R. 176;
Ensuring the safety of a rock face in danger of collapsing onto houses; Kirklees
MBC -v- Field and Others [1998] Env.L.R.337.
9.
Although it is easy to recite a list of successes and failures it has proved more difficult to
elicit the statement of principle.
10. In particular, following Sterling Homes , it appeared that the draftsman had a choice as to
whether to specify works required to be carried out to abate the nuisance. If he chose to
do so, however, then the words used had to be sufficiently clear and specific to tell the
recipient exactly he would have to do to avoid criminal prosecution. Needless to say,
given a free choice, draftsmen avoided making any such requirement since it would
readily be challenged for failure to be sufficiently specific, and merely relied upon a
straightforward Aabate the nuisance.
11. However, the Divisional Court in Kirklees, whilst approving the judgment in Sterling
Homes , refined it by holding that where it is implicit that works of some kind must be
carried out in order to abate the nuisance, those works must be specified. Accordingly, in
those circumstances, it was not a matter of choice on the part of the draftsman.
12. Surrey Free Inns has further refined the principle. The issue arose as to whether the
draftsman of the Notice must specify works in a case where the nuisance could be abated
by carrying out works (e.g. sound insulation works), or could alternatively be carried out
by other means (e.g. turning the music off; selling ones dogs or cockerels). In this
situation, it was held by the Divisional Court, the draftsman had a choice as to whether to
specify works.
Accordingly a failure to specify works in this situation did not give rise to a nullity.
13. The principle is now reasonably clear:
§ where works must be carried out to abate the nuisance, the nuisance must
specify the works;
§ where no works need be carried out, the Notice need not specify any works, and
will normally not do so;
§ where it is possible to abate the nuisance with or without works, a Notice will
not be struck down for failing to specify works.
14. The Divisional Court in Kirklees remarked that it regarded the position as now fully clear
and did not expect to see any further cases on the point. However, as a result of this
decision more Abatement Notices will be required to specify works, and this is a
minefield.
So, for example, in The Network Housing Association case the relevant part of the Notice
required the recipient to:
AProvide suitable and effective sound insulation in the void between flats D and C so as
to provide a level of airborne sound insulation (measured as Dn Tw in accordance with
BS 2750 part 4 1980 and BS 5821 part 1 1984) of not less than 42dB or carry out such
other works as will achieve the above required degree of airborne sound insulation
between flats D and C. In improving the airborne sound insulation take all reasonable
steps to ensure that no degradation occurs in the existing level of structure borne sound
insulation.
This was struck down by the Divisional Court for want of particularity. Whilst it was
adequate to inform the recipient of the result required, it was held defective because it left
the way in which that result was to be achieved to the recipient of the Notice. In R. v.
Falmouth & Truro Port Health Authority ex parte South West Water Limited [1999]
Env.L.R.833 the principle was applied in striking down an abatement notice because it
failed to specify the standard beneath which a discharge consent for a sewerage outfall.
The public authority had to specify in the notice the works that were realistically required
to abate the nuisance, otherwise criminal penalties would be imposed on people without
specifying what was required.
Accordingly, where, as henceforward will be more common, the draftsman has to specify
the works, it will not be sufficient to specify the result alone.
3.
APPEALS AGAINST ABATEMENT NOTICES
1. A person who is served with an abatement notice may appeal against it to a Magistrates
Court within a period of 21 days beginning with the date on which he was served with the
notice - E.P.A. 1990, s. 80(3).
Making the Appeal
2.
3.
4.
An appeal is made by way of complaint to the Magistrates= Court - see the precedent at
Appendix 1 - and the Magistrates= Courts Act 1980 applies to the proceedings - E.P.A.
1990, Sched. 3, para. 1(2).
The main provisions of the 1980 Act concerned are sections 51 to 64 which set out a
rudimentary procedure. They are more designed to deal with complaints in relation to
non-payment of maintenance etc... than civil trials. It is fair to say that there is very little
substantive law on the way in which this type of appeal should be dealt with.
One useful provision may be section 123 of the 1980 Act which provides that no
objection shall be allowed to any complaint in respect of a defect in its substance or form
or in any variance between it and the evidence adduced by the complainant. If the
defendant considers himself misled then he should ask the court for an adjournment.
Grounds of Appeal
5.
The permissible grounds of appeal are set out in Regulation 2(2) of the Statutory
Nuisance (Appeals) Regulations 1995 (SI 1995 No. 2644).
6. The first ground is that the abatement notice is not justified by section 80 of the 1990 Act.
This in effect means that there is no nuisance or prejudice to health from the
complainant=s premises.
7. The use of the present tense in the regulation has led the courts to say that one looks to
see if there is a nuisance at the date of the magistrate=s hearing: Johnsons News of
London -v- Ealing London Borough Council [1989] 154 JP 33. However, in Surrey Free
Inns Plc. v. Gosport Borough Council [1999] Env.L.R.750 the Court of Appeal held that
Johnsons News was wrongly decided and the correct date for determining whether or not
there was a nuisance was at the time of the service of the abatement notice. That decision
has been applied by the Divisional Court in R. v. Knightsbridge Crown Court ex parte
Cataldi [1999] Env.L.R.1. The Divisional Court held that at the date of the service of the
abatement notice the local authority was entitled to have regard to three possible
situations: if there was an existing statutory nuisance; that a statutory nuisance was likely
to occur; or that there was no statutory nuisance on that date but there had been such a
nuisance in the past and it was likely to recur. Any of these situations entitled the local
authority to serve an abatement notice.
8. The onus in this situation is on the local authority to justify its notice Budd -v- Colchester
Borough Council [1997] Env. L.R. 128 . They must therefore show, on the balance of
probabilities, that there is a nuisance from the complainant=s premises or operations or
that they are prejudicial to health. A nuisance here is one that would constitute a public or
private nuisance in common law - National Coal Board -v- Thorne [1976] 1 WLR 543.
However the nuisance may have to be one that affects health as opposed to comfort and
enjoyment of property - Ibid and Wivenhoe Port -v- Colchester Borough Council [1985]
JPL 175.
9. One aspect of any nuisance case is whether the defence of reasonable user applies. The
question here is whether the activity concerned is one that is necessary for the ordinary
use and occupation of land or houses and so comes within the principle of give and take
as between neighbouring occupiers of land - see e.g. Graham and Graham -v- ReChem
(1996) Env. L.R. 158. Thus if the nuisance is caused by bonfires it may be considered
that having occasional bonfires is part of the ordinary use and occupation of land with
which neighbours must put up.
10. Ground (b) is that there has been some informality, error or defect in the notice. If, on
hearing the appeal, the court is satisfied that the defect etc ... was not material it must
dismiss the appeal - Reg. 2(3). No informality, defect or error is a material one unless it is
such as to produce injustice= - per Lord Denning Miller-Mead -v- Minister of Housing
[1963] 1 All ER. 459 at 467G.
11. Ground (c) is concerned with reasonableness of the local authority=s requirements. If it is
for the local authority to justify its notice then logically it must also justify any
requirements it makes. However given the trend of authorities not to specify detailed
requirements the onus may be on the complainant to show that his scheme of works is the
best solution to the problem.
12. Ground (d) is that more time is needed in order to be able to comply with the notice.
Given the time between the service of the notice and the appeal hearing a court might
expect the complainant to have complied with the notice by the time the appeal is heard.
In such a case, if this is the only ground of appeal, the sensible approach would be to
withdraw the appeal on suitable terms as to costs.
13. Ground (e) concerns the use of best practicable means. This is dealt with later in this
paper.
14. Grounds (f) and (g) deal with noise cases where other legislation or notices cover the
noise in question.
15. Grounds (h), (i) and (j) are concerned with service on some other person than the
complainant. If the appeal is brought under either of grounds (i) or (j) then the notice of
appeal must also be served on any other such person referred to - Regs, reg. 2(4).
Suspension of Notice
16. A notice may be suspended pending the outcome of an appeal in accordance with
Regulation 3 of the 1995 Regulations. For a suspension to be permissible compliance
with the notice must involve expenditure on works before the hearing of the appeal or, in
relation to noise, that the noise is necessarily caused in the course of the appellant
carrying out a duty imposed on him by law.
17. The local authority can prevent this suspension if the nuisance to which the notice relates
is prejudicial to health or is likely to be of such limited duration that to suspend the notice
would make it useless. In addition they can state that they consider that any expenditure
on works before the hearing would not be out of proportion to the public benefit to be
gained from compliance with the notice. If they set out any of these reasons in the notice
then that notice will not be suspended pending the appeal.
18. Where such objections are stated in the notice the only way to get over them will be to
apply for a judicial review of the authority=s decision and for a stay of that decision - not
to suspend the notice - pending the hearing of the judicial review application.
Evidence
19. The hearing of an appeal against an abatement notice is a hearing de novo into the matter.
The court is entitled to hear any evidence about the case, even if this involves hearsay Kavanagh -v- Chief Constable of Devon and Cornwall [1974] 2 All ER 697. The
Magistrates= Court acts under section 53 of the Magistrates Courts Act, Section 53(2)
providing that Athe court, after hearing the evidence and the parties, shall make the order
for which the complaint is made or dismiss the complaint. This does not mean that
hearsay must be excluded but if it is to be adduced the court must carefully consider the
weight to be given to it - Westminster City Council -v- Zestfair (1989) 153 JP 613.
20. As there are no rules for evidence in civil cases in the magistrates= court it may be
advisable to ask for a pre-trial review hearing at which the court can be asked to issue
directions as to the exchange of witness statements, expert evidence, meetings of experts
etc. The degree of detail involved will depend on the complexity of the case and whether
the parties are co-operating or at loggerheads.
21. Where experts are to be called they should be carefully briefed as to the nature of the
court, particularly if there is to be a bench of lay justices, and the hearing. Their evidence
should be easy to follow and a glossary of terms should always be included. In London
Borough of Southwark v. Simpson [1999] Env.L.R.553 the tenant alleged that her house
was damp and in such a state that it was prejudicial to health and thereby constituted a
statutory nuisance. The Magistrates heard evidence from a chartered surveyor who said
he had no medical knowledge of whether the damp problems were prejudicial to health
but he had read articles in which similar damp problems had been considered prejudicial.
He did not produce any of those articles nor was he able to give any details of them. The
Magistrates concluded that the property was suffering from severe damp problems and
therefore a statutory nuisance. The Divisional Court allowed the council=s appeal and
held that although an expert witness did not have to be medically qualified in able to
provide evidence about whether a nuisance was prejudicial to health, that expert was
required to have some experience in the relevant field. In this case the expert witness has
said that he had no relevant experience and accordingly he was in no better position than
a layman. Magistrates were not entitled to consider the evidence provided by him.
Withdrawal of Appeal
22. Often, either before the case or during it, the parties will reach an agreement. They may
then wish to withdraw the appeal on agreed terms. There are no rules as to this. Some
courts will allow a withdrawal on undertakings, others hold that the court has no power to
determine an appeal without hearing the evidence - see S. 53 of the Magistrates= Courts
Act 1980.
23. One solution, if the court agrees, is for one party simply to give evidence of the proposed
agreement and then the advocates should both ask the court if it is willing to make an
order in the terms sought. If it does not agree then full evidence will have to be called. If
it agrees then it has heard evidence and can make the proposed order.
Procedure
24. The procedure for a civil trial is set out in paragraph 2 -62 of Stones Justices Manual
1997.
There are five stages:
§ Complainant opens his case and calls evidence,
§ Defendant opens his case and calls evidence,
§ Complainant can call rebutting evidence,
§ Defendant can address court if he has not already done so,
§ Either party may ask for leave to address the court a second time, if one party is
allowed to do this the other side must also have a second turn. The Defendant
goes first and the Complainant has the last word.
The Decision of the Court
25. After hearing the evidence the court may:
§ quash the abatement notice to which the appeal relates;
§ vary the abatement notice in favour of the appellant in such manner as it thinks
fit;
or
§ dismiss the appeal.
A notice that is varied will be final and have effect as if it had been made by the local
authority.
1995 Regulations, Reg. 2(5).
26. Where there is a dispute as to who should do the works and the people who should pay
for them, the court may say who is to execute the work and make contribution orders Reg. 2(6)(a) and (7). It may also make orders for the payment of the authority=s expenses
in carrying out any necessary works - Ibid Reg. 2(6)(b) and (7).
Costs
27. Provision for costs is made by section 64 of the Magistrates= Courts Act 1980. This gives
the court a wide discretion to make an order for costs that it considers `just and
reasonable. The amount must be specified and that amount must also be `just and
reasonable.
28. Ideally where there is a large amount to be sought each side should give the other a
breakdown of their costs before the end of the hearing. If necessary there may need to be
an adjournment to enable a more detailed examination of the amount claimed. However
the High Court will rarely interfere with a costs order and then only because the order
was `perverse= - R. -v- The Southend Stipendiary Magistrate ex p. Rochford District
Council [1995] Env. LR 1.
Appeals
29. An appeal on the facts can be made to the Crown Court - E.P.A. 1990, Sched. 3, para.
1(3).
Either party may institute such an appeal. The appeal must be made within 21 days of the
magistrates= decision - Crown Court Rules 1982, r. 7. the 1995 Appeals Regulations do
not apply to such an appeal so that any application for suspension of the notice pending
the Crown Court=s decision must be made to that Court - Surry Free Inns Plc -v- Gosport
Borough Council (supra).
4.
30. Alternatively the court can be asked to state a case for the opinion of the High Court. If
such an application is made the appellant=s right of appeal to the Crown Court ceases.
The Magistrates= Court should be asked to state a case within 21 days of the decision
concerned - M.C.A. 1980, s. 111. The application should set out the questions on which
the High Court=s opinion is sought - Magistrates= Courts Rules 1981, r. 76(1).
and Members of Old Square Chambers Environmental Law Group
1. THE NATURE OF THE PROCEEDINGS
§ The question whether proceedings under S. 82(1) of the EPA are civil or
criminal arose in Botross -v- L.B. Hammersmith & Fulham [1995] Env. LR 217,
when a Magistrates Court in a case stated asked whether S. 35(1) of the Power
of Criminal Courts Act 1973 had any application. The Divisional Court held that
reference to a fine no exceeding level 5 in s82(2) meant that the proceedings
were criminal in nature. Further following Pepper -v- Hart [1993] AC 593 the
intention of Parliament had been to follow the status quo of previous Acts.
2.
3.
4.
THE NATURE AND STANDARD OF PROOF
§ Cunningham -v- Birmingham City Council [1998] Env. LR 1 deals with the test
by which one measures what is Aprejudicial to human health. The case
concerned the special needs requirements of a child suffering from autisticspectrum syndrome, living in (restricted) local authority property. The court held
that the test was objective.
§ It follows that looking at what is prejudicial to health in some cases may not
require evidence of actual damage/injury/prejudice but expert evidence as to
whether something would be prejudicial to average people. Query whether the
average person has to be 100% fit, e.g. smokers/asthmatics/the elderly . That
expert evidence may be necessary for many cases which are not Aobvious was
indicated in R-v- Carrick District Council ex parte Shelley [1996] Env. LR 273
at 278.
§ Where a Defendant who has been prosecuted for failing to comply with an
abatement notice pleads by way of defence that he had a reasonable excuse for
not complying with the notice, it is for the prosecution to demonstrate, to the
criminal standard of proof, that the excuse was not reasonable: Polychronakis v- Richards and Jerrom Ltd, [1998] Env.L.R.346.
WHO OR WHAT IS RESPONSIBLE FOR THE NUISANCE?
§ The following cases assist in identifying what is the nuisance complained of and
equally important who is responsible. The wording in s79(7)(a) refers to the
person to whose act, default or sufferance the nuisance is attributable. In
Network Housing Association Limited -v- Westminster City Council [1995]
Env. L.R. 176, the Court held that where there was no noise insulation between
adjoining flats, the nuisance was attributable to the local authority, and not to the
person occupying an adjacent flat the original author of the noise.
§ In Carr -v- L.B. Hackney [1995] Env. L.R. 372 the Magistrate, applying
Coventry City Council -v- Doyle [1981] 2 All ER 184, concluded that at the
time of the hearing, although there had been a nuisance, there was not likely to
be a reoccurrence because of efforts on the part of the respondent. The local
authority had attempted to fit convector heaters which the complainant refused.
Held that the likelihood of reoccurrence of a nuisance, for lack of heating, was
due to the complainant=s refusal and not the fault of the local authority (see also
ex parte Ali, noted at [1997] Env. LR D15).
§ The question of who is responsible for a nuisance was followed in ex parte
Shelley where in relation to sewage discharged into the sea, Carnwath J. held
that the proper test was whether on the balance of probabilities the material
came from the water authority soutfalls; the fact that any nuisance might depend
on the vagaries of the tide did not preclude the authority=s responsibility.
§ It is necessary for any abatement notice to name and be served on the person
responsible to fulfil the requirements of s 160 EPA 1990 and s 233 Local
Government Act 1972. Therefore, a wrongly addressed notice indicating an
associated company, although received by the offending company at the same
address, was not properly served: Amec Building Limited -v- L.B. Camden
[1997] Env. LR 330.
§ Amec may be contrasted with Wiltshier Construction (London) Limited -vWestminster City Council [1997] Env. LR 321. In this case the notice
incorrectly identified the relevant premises as 21-23 Victoria Street rather than
21-29 Victoria Street. The Divisional Court upheld the finding of the Magistrate
that the appellant had been undertaking works to which the notice related and
that although there might have been a serious disadvantage to the appellant, in
this case on the evidence there had been no misunderstanding.
DUTY OF THE LOCAL AUTHORITY
§ Ex Parte Shelley is also helpful in indicating that whether there is or is not a
nuisance under s80 EPA is a question of fact, not discretion. Once the authority
is satisfied that there is, on the balance of probabilities, a statutory nuisance,
then the authority has a duty to serve an abatement notice.
5.
THE NEED TO CHALLENGE ABATEMENT NOTICES
§ In Amec it was argued that it was necessary for the prosecution to establish that
there had been a pre-existing nuisance prior to the issue of the notice. This
argument was rejected, applying A. Lambert Flat Management -v- Lomas
[1981] 1WLR 898, authority under S. 58 COPA 1974. Any question of the
validity of the notice could be challenged by appeal. The offence concerned
breach of the notice, and not whether there was originally a nuisance.
§ Hope Butuyuyo -v- L.B. Hammersmith & Fulham (noted at [1997] Env. LR
D13) concerned failure to appeal a notice due to illness. Held that it was not
possible to define what was a reasonable excuse under s 80(4) EPA, which could
vary from case to case. It should not be construed narrowly so as to exclude the
personal circumstances of the Appellant.
6.
COMPENSATION AND FINES
§ The limitations on claiming compensation in cases in the magistrates= court are
clear from the following cases. In R. -v- Horseferry Road Magistrates ex parte
Prophet [1995] Env. LR 104, the Divisional Court Cited earlier obiter dicta of
Woolf L.J. in Herbert -v- L.B. Lambeth [1992] 24 HLR 299 that compensation
should only be awarded in cases which are simple and straightforward, and
where no great amount is at stake. It was unsuitable for personal injury.
§ Davenport -v- Walsall MBC [1997] Env. LR 24 indicates that as long as the
court has some information put before it, it may be sufficient for information to
be given by advocates in order to determine a compensation order. The fact that
there is no civil remedy is one matter to be considered in exercising a discretion
whether to award compensation, but not determinative. The dicta of Woolf L.J.
were also approved.
§ In R. -v- Crown Court at Liverpool, ex parte Cooke [1996] 4 All ER 589, the
Divisional Court held that compensation in relation to statutory nuisance should
only be awarded for injury, loss or damage caused by the continuation of the
nuisance from the date when the period stated in the s82(6) notice expired to the
date of hearing. If the complainant delayed in bringing proceedings for over 6
months after the expiry of the notice, then compensation would be limited to the
six month period prior to the making of the complaint.
§ Whilst s80(5) EPA provides for fines at one tenth of level 5 for a continuing
failure to comply, there is a discretion to impose a lesser penalty - see
Canterbury City Council -v- Ferris [1996] CLY 2022.
7.
COSTS
§ A Magistrates= Court is not entitled to refuse costs under Section 82(12). It is
bound to order costs provided that it was satisfied that the statutory nuisance
existed at the time of the complaint. Its consideration of costs is limited to
questions as to whether particular items of expenditure were necessary and the
amounts claimed are warranted by the particular proceedings. The costs which
could be recovered include expenses incurred in proving the existence of a
statutory nuisance and in the steps required by the statute prior to the making of
the complaint: R. Dudley Magistrates= Court, ex parte Hollis & Another [1998]
Env.L.R.354.
§ In Taylor v. Walsall & District Property & Investment Company Limited [1998]
Env.L.R.600 the Divisional Court held that when a substantial sum was claimed
by way of costs, a court must take proper steps to investigate just how the claim
was arrived at and the detailed grounds upon which any challenge to those costs
was made. It was essential to determine the basis upon which any item or head
of costs was said not have been properly incurred, whether wholly or in part. A
complainant should also, as a matter of course, provide the Respondent with
notice of any costs they intended to claim prior to the hearing and the
Respondent should, in return, either state that they accepted the claim or set out
the reasons why they disputed it. It would be appropriate to use Calderbank
letters, setting out the parties= positions without prejudice, so that Respondents
who admitted some responsibility might be afforded protection and the issue of
costs should be resolved as cheaply as possible.
§ Contingency fee arrangements were considered in Hughes v. Kingston upon
Hull City Council [1999] Env.L.R.579. H (a tenant of K) claimed that K was
responsible for a statutory nuisance (relating to damp) at his premises and
brought proceedings under Part 3 of the EPA 1990. The works required to abate
were carried out by K and the proceedings were withdrawn. However, the
Appellant sought an order for costs under Section 82(12). The Magistrate
accepted that the Appellant had not been made fully aware of the potential
liability for costs by his solicitors and the rate at which costs were accruing and
found that the retainer had been specifically worded by the solicitors to avoid
the difficulties evident in British Waterways Board v. Norman [1993] 22
H.L.R.232 which set out how such agreements may be unenforceable. He
further found that the solicitors did not intend to pursue costs against H if his
case failed, would have realised from the outset that this would not have been
possible and that the retainer amounted to a contingency arrangement which was
contrary to public policy (particularly with a criminal trial) and unenforceable in
such cases. He rejected the contention that there was a binding contract between
the solicitors and their clients. Case stated the Divisional Court held that the
Solicitors Practice Rules provided that solicitors should not enter into
contingency fee arrangements in respect of contentious proceedings. The
Magistrate had found that there was a contingency fee and that the arrangement
was unenforceable. The agreement was contrary to the Solicitors Practice and
the decision in Thai Trading Company v. Taylor [1998] 2 W.L.R. 893 did not
render the Magistrates= decision incorrect.
8.
POWERS AND RESPONSIBILITIES OF LOCAL AUTHORITIES
§ The Vale of White Horse District Council -v- Allen and Partners [1997] Env.
LR 212 case is authority for the proposition that s222(1) of the Local
Government Act 1972 is not a free-standing right. A local authority, if it wishes
to bring proceedings, must do so in accordance with S80 EPA.
§ There is no private cause of action for breach of statutory duty for failure by a
local authority to enforce preventative or remedial action resulting from a
nuisance by a neighbouring landowner: Chung Tak Lam -v- Brennan (T/A
Namesakes of Torbay [1997] CLY 4087 (CA).
9.
POSTSCRIPT: NOISE ACT 1996
5.
§ The Noise Act 1996 makes provision for a summary procedure for dealing with
noise at night. Sections 2 to 9 apply to any area where a local authority has so
resolved or an order has been made by the Secretary of State.
§ There is a duty on a local authority to investigate complaints concerning
excessive noise during night hours, defined as between 11.00 p.m. and 7.00 a.m.
(section 2). Where there is excessive noise in breach of the permitted level (to be
laid down by the Secretary of State - section 5), the local authority officer may
serve a warning notice (section 3). The notice shall specify a period, breach of
which shall be an offence. The period must be a period beginning not earlier
than 10 minutes after the notice is served and ending with the following 7.00
a.m. Any person who is responsible for noise emitted from the dwelling in
excess of the permitted level in respect of which a warning notice has been
served shall be guilty of an offence and liable on summary conviction to a fine
not exceeding level 3, (section 4). Sections 8 and 9 make provision for fixed
penalty notices, and sections 6 and 7 provide for approval of measuring services
and evidence in court proceedings.
§ Section 10 permits local authority officers to seize any equipment which appears
to have been used in the emission of noise. Any officer exercising such a power
under s10 must produce his authority to do so. Authority to enter premises by
force may be obtained by warrant from a Magistrate. By section 10(7) power to
abate a nuisance under section 81(3) EPA where there is a statutory nuisance by
virtue of section 79(1)(g) includes power to seize and remove any offending
equipment. Sections 10(7), 13 and 14(1) and 14(3) and (partially) 10(8), 10(9)
and the Schedule, 11 and 12 came into force on 19th September 1996: Noise Act
1996 (Commencement No. 1) Order 1996, S1 1996/2219.
BPM and BATNEEC
1. BEST PRACTICABLE MEANS
§ History of the term `bpm:
The term can first be found in the public health legislation of last century, for
example the Smoke Nuisance Act 1853 s.1, the Nuisances Removal and
Diseases Prevention Acts Consolidation and Amendment Act 1855 s. 27, and
the Public Health Act 1875 s.114. The terms of these statutes that contained the
phrase were concerned with preventing nuisance through the release of harmful
or noxious substances.
§ The term was also used in a number of the Alkali Acts namely:
the Alkali Act 1863 (Amendment Act) 1874 s.5; the Alkali & Works Regulation
Act 1881 ss. 4 & 9; the Alkali & Works Regulation Act 1906 ss. 2,4,5,7,8. By
this route the term found its way into the now repealed section 5 of the Health
and Safety at Work Act 1974. There it sat alongside other Factories Act
concepts such as practicable and reasonably practicable both of which have
received a fairly restrictive interpretation from the employer=s point of view and
the regulator has argued in the context of the now repealed s. 5 of the Health and
Safety at Work Act that BPM should have the same meaning.
§ With the decisions in the House of Lords in Regina -v- Associated Octel Co.
Ltd. [1996] ICR 972 (section 3 of the HSWA) and the Court of Appeal
(Criminal Division) in Regina -v- Gateway Foodmarkets Ltd. [1997] ICR 382
(section 2 of the HSWA), emphasising the strict liability of those offences and
the responsibility of the employer for the acts of relatively junior employees
(and contractors), the focus shifts naturally to these statutory defences. In
sections 2 and 3 this defence is A ... so far as is reasonably practicable; the
analysis of the Court of Appeal (Criminal Division) in Regina -v- Gateway
Foodmarkets ltd. (see pp387-389 B-C, although probably obiter) suggests the
statutory defence might be very narrow. It follows that Apracticability must be
narrower still.
§ The question is - does this narrow interpretation apply to the A ...best practicable
means .../ A... no better practicable means ... (Abpm) defence in section 40 of
the HSWA and other statutes where the same or similar rubric appears, except
those where there is a detailed definition (see e.g. section 79(9) of the
Environmental Protection Act 1990)
§ There are sound reasons for thinking that bpm owed little or nothing to the
Factories Act legislation. There are two distinct strains of legislation; one is the
health and safety legislation, from which the Areasonable practicability defence
derives; the other is public health legislation and this is the origin of bpm. In that
context, local conditions and circumstances, the state of scientific and technical
knowledge and the financial implications have all been relevant considerations.
This makes the Abmp defence broader than the Apracticability/reasonable
practicability defences.
§ The significance of BPM is diminishing as Integrated Pollution Control (IPC)
under the Environmental Protection Act 1990 takes effect. The phrase bpm,
however, is currently applied in the following provisions:
Health and Safety at Work Act 1974 section 40
Clean Air Act 1993 section 5(4) (grit/dust emitted from a chimney
serving a furnace)
Environmental Protection Act 1990 section 80 (generally nuisances in
the course of business/trade)
Control of Pollution Act 1974 section 66(9) (defence for a breach of
noise reduction notice in the course of business), See s. 72 for a
definition
Control of Noise (Appeals) Regulations, Reg. 7 (grounds of appeal
against a notice given in accordance with the above statute).
In Scotland only, the Alkali Works Regulation Act 1906 section 2(1).
2.
BATNEEC (BEST AVAILABLE TECHNOLOGY NOT ENTAILING EXCESSIVE
COST)
§ Under the IPC various processes need authorisation before they may be
operated. The objectives to be achieved in granting authorisation include
ensuring that BATNEEC (best available technology not entailing excessive cost)
will be used. Thus this is now the prevailing concept in environmental
legislation although BPM will still have an important role particularly under s.80
of the EPA. The question is to what extent do they differ?
§ It is unclear exactly what the differences are, if any, between the meaning of
BPM and BATNEEC. It has been held that it is not sufficient to simply comply
with trade practices to satisfy the bpm, see Scholefield -v- Schunck (1855) 19
JP. However, in modern times there has been a liberal interpretation. In National
Smokeless Fuels -v- Perriman (1987) 1 Environmental Law No 2 p5, an
industrial tribunal case on the wording under Alkali Works Regulation Act and
HSWA, it was indicated that not only technical factors should be taken into
account, but also social and economic factors such as agreement with trade
unions and the cost of introducing abating technology. This was plainly in line
with the older authorities.
§ Despite the overlap between the two schemes, it has been suggested that
BATNEEC should have a more rigorous interpretation than that applied to
BPM.
APPENDIX
(Insert Name) MAGISTRATES COURT
17th June 1997
Defendant: The London Borough of Romford
Address:
Matter of Complaint:
THAT by a notice dated the 28th day of May 1997 served on Ms Black (hereafter called the Complainant)
by the London Borough of Romford, the said Borough alleged that the Complainant was responsible for
smoke amounting to a nuisance at 36, Fire Drive, Romford, Essex. The notice further required the
abatement, and prohibited the recurrence, of the said alleged nuisance forthwith from its service pursuant to
section 80 of the Environmental Protection Act 1990.
AND THAT:
1.
the notice is not justified by the terms of the said section,
2.
the requirements of the notice are unreasonable,
3.
there has been some informality, defect or error in, or in connection with, the notice.
AND the complainant seeks an order:
1.
That the notice may be quashed,
2.
That the notice may be varied in favour of the complainant in such manner as the Court thinks fit.
The complaint of Ms D.M. Black
Address: 36, Fire Drive, Romford,
WHO upon oath or affirmation states that the Defendant was responsible for the matter of complaint of
which particulars are given above.
Taken and sworn or affirmed before me
Justice of the Peace
Justices' Clerk
I am grateful to John Hand Q.C., Charles Pugh, John Bates and Philip Mead for use of their unpublished
work.