Pollution control - abatement notice

In the event of justified complaint of statutory nuisance such as emissions of smoke, fumes or gases, dust, steam and smell is justified, an abatement notice will be served upon the person responsible by the local authority.

Statutory Nuisances

Statutory Nuisances are those that have been specifically listed within the Environmental Protection Act 1990, and are defined as:

1. Any premises in such a state as to be prejudicial to health or a nuisance.
2. Smoke including soot, grit or ash emitted from a premises so as to be prejudicial to health or a nuisance.
3. Fumes or gases emitted from private dwellings so as to be prejudicial to health or a nuisance.
4. Any dust, steam or smell arising from industrial, trade or business premises being prejudicial to health or a nuisance.
5. Any accumulation or deposit which is prejudicial to health or a nuisance.
6. Any animal kept in such a place or manner so as to be prejudicial to health or a nuisance.
7. Noise (including vibration) emitted from a premises or noise made in the street so as to be prejudicial to health or nuisance.
8. Any other matter declared by other Acts to be a statutory nuisance, for example:-
1. Any well, butt, tank or cistern used to supply drinking water for domestic purposes which is prejudicial to health.
2. Any tent, van, shed or similar structure used for human habitation which gives rise to conditions that are a nuisance or are prejudicial to health.

NOTE:- Prejudicial to health means injurious or likely to cause injury to health.

How do we decide what is a Statutory Nuisance?

These factors are important in determining whether a nuisance is statutory, and therefore whether the Environmental Health Unit can take action:-

1. Noise is dealt with separately on the noise page of our website
2. Accumulation of refuse must be considerable and pose some health threat such as the attraction of vermin. Problems such as overgrown and unsightly gardens or accumulations of builders’ rubble cannot by definition be a nuisance.
3. Smells must materially affect the enjoyment of a person’s property. They must therefore be intrusive.
4. The interference must be regular or fairly constant. One off parties or bonfires will not normally be considered a nuisance unless extreme.
5. The nuisance must be of an unusual nature to the area in which you reside. Agricultural smells in a country location will not be considered a nuisance unless excessive.
6. The time the nuisance occurs and the precautions will be taken into account in determining if there is any action that can be taken.
7. The nuisance has to cross a boundary and affect the person’s enjoyment of his/her own property. Visual eyesores, i.e. overgrown gardens and problems witnessed whilst out walking may not be actioned as Statutory Nuisance.
8. Trades or business have a defence that they have employed the best practical means to minimise disturbance.
9. The law does not normally apply to Crown property.
10. Neighbourhood character needs to be taken into account. What might be a nuisance in the city may not be so in the country and visa-versa.

What happens if the Unit decides there is no statutory nuisance present?

There are only a limited number of Officers available to deal with all the complaints received and consequently revisits cannot be made time and time again.
If therefore after a number of visits no evidence of a Statutory Nuisance has been witnessed by an officer you will be advised to consider your own private action under Section 82 of the Environmental Protection Act 1990.
To do this is fairly simple and it need not cost money and whilst you may wish to consult a solicitor you instigate proceedings yourself.

How to take your own legal action

Complaining to a Magistrates' Court

• if an informal approach to solving the problem has not worked or
• the Council have been unable to witness the problem and therefore cannot take action or
• you do not wish to involve the Council

then you can complain about a statutory nuisance problem direct to the Magistrates' Court under Section 82 of the Environmental Protection Act 1990. However, the Magistrates' Court will need to be persuaded that the problem amounts to a statutory nuisance.

What you need to do

To start legal proceedings:

• Telephone the Magistrates' Clerk
  The local Magistrates' Court telephone numbers are listed in the directory under "Courts". When you contact the Court, tell them you wish to make a complaint under Section 82 of the Environmental Protection Act 1990.
• Make an appointment to visit the Court - preferably on a weekday morning. At the Court:

• the procedure will be explained to you
• you may be asked for evidence of the problem, to show the Court that you have an arguable case.
• let the Court know if you have notified the Council's Environmental Health Division of the problem.

• Keep a written record of the dates, times and duration of the problem, as well as a description of its nature and how it affects you in your home.

 Giving fair warning of your action
If you decide to take action under Section 82 of the 1990 Act you must give notice in writing to the person responsible for the problem of your intentions and provide them with details of your complaint.

• 3 days notice is needed if it is a noise problem
• 21 days notice for any other category of nuisance

Deliver your notice by post or hand and make sure your letter is dated and that you have kept a copy.

Legal Advice

• Free legal representation is not available for this type of case through the legal aid scheme
• Free or subsidised legal advice and assistance in preparing your case may be available to you under the 'Green Form Scheme'
• If you are going to present your own case, the Clerk of the Court may give you advice and guidance
• Your local Citizen's Advice Bureau which may be able to offer assistance

What the Court will do

• The Court will decide if a summons can be issued to the person causing the problem
• The Court may ask you to serve the summons (by hand or by post) on the person responsible, stating the date and time of the Court hearing.
  If you serve the notice yourself:
• keep a careful record
• ensure that the notice is served well before the hearing date.
• The Court will ask you to attend and give evidence.

The persons responsible for the problem will very likely come to the Court to defend themselves and may even make counter-accusations. You do not need to have a solicitor to represent you at the hearing, although you may do so if you wish.

The Outcome

If the Court decides in your favour:

• The Court will make an order requiring the defendant to abate (control) the nuisance. The order may also prohibit or restrict a recurrence of the nuisance.
• The order will specify the measures they will have to take to achieve this.
• The Court may also impose a fine on the defendant at the same time as making the order.
• The Court may award you the reasonable costs incurred by you in bringing the action against the noise maker.
  (If an order is made the Court will generally require the person causing the problem to pay your costs.)

But you may have to pay the costs of taking the case to Court yourself. These costs will include:

• your costs
• the cost of your solicitor (if you have one)
• the cost of any witnesses you may call in support of your case.

If you lose the case , you will normally have to pay your own costs in bringing the case to Court and you may also have to pay the costs of the other party.

What if the problem continues?

Any person who breaches the requirements of an abatement order without reasonable excuse will be guilty of an offence under the Act and can be fined.

You should keep your record of occurrences of the problem up to date in case the order is being ignored and it proves necessary for you to return to Court. The procedure for initiating a future case will be the same as for the original proceedings.

 Taking Civil Action

You can also take civil action for nuisance by seeking either an injunction to restrain the defendant from continuing the nuisance and/or by suing for damages or loss.

 If you live in a flat or maisonette there may be additional leasehold / tenancy restrictions which could be enforced.

Taking out a civil action can be expensive. Seek the advice of a solicitor (which may be free or subsidised) or the Citizen's Advice Bureau.