Investigating a Statutory Nuisance

MAS consultants specialise in nuisance and specifically statutory nuisance.  Our team have experience working for local authorities drafting and serving notices and Mike Stigwood provides training on the enforceability of Environmental Protection Act 1990 Section 80 abatement notices.

When a local authority has served an abatement notice

When a local authority serves an abatement notice they are giving their opinion that they are “satisfied” the matters they allege within the notice are, were or are likely in the future to be a statutory nuisance. The abatement notice is intended to be a precise notice of the local authority’s view. Only a court can determine what is a statutory nuisance but if the notice is not appealed then a breach of that notice becomes a criminal offence unless there is a defence. To further understand this, it is necessary to understand what set of circumstances or “state of affairs” constitutes a statutory nuisance.

The starting point of our investigation and analysis of statutory nuisance would require a review and analysis of the notice wording to understand firstly what the Council concluded amounts to or amounted to a statutory nuisance, as it is the continuance or recurrence of such a nuisance that would constitute a breach of that notice. Therefore, first and foremost, it must be considered what is the “state of affairs” that the Council allege amounts to a nuisance and which must not occur, recur or which must be brought to an end.

It is also important to recognise there are different and separate forms of statutory nuisance including matters prejudicial to health which are likely to injure health, and common law or civil nuisances. Within the latter categories there are public nuisances which can constitute a criminal wrong and private nuisances which are civil wrongs. A “state of affairs” could constitute a private and a public nuisance as well as being prejudicial to health. Understanding which category of statutory nuisance is alleged also helps define the “state of affairs”.

The other main task arising is to understand what the notice requires to be done. On its face this may appear simple, but in our experience this is often not the case. This is because nuisance avoidance is not the cessation of all noise but the control of emissions of noise of the type and form that first constituted the alleged nuisance and so are part of the same state of affairs or set of circumstances and which are then excessive and unreasonable to such a degree as to be a nuisance.

In summary, the following matters need to be determined:

• What is alleged to contribute to the nuisance?
• What is and is not part of that alleged “state of affairs” that is considered by the Council to amount to a nuisance?
• What category or type of nuisance is alleged?
• What is reasonable noise impact before it reaches the point of unreasonable and exceptional intrusion that is considered to be a statutory nuisance?; and
• What else does the notice require to be done?

MAS Environmental Ltd is an independent consultancy, providing expertise in statutory nuisance to both local authorities serving notices and to those affected.  Our consultants have experience working in local government and in assessing the validity and enforceability of abatement notices.  Mike Stigwood provides training in the enforceability of abatement notices and how to correctly write enforceable conditions.

If your business has been served with an abatement notice, it is a good idea to seek legal advice.  At MAS we can advise on the appropriate areas to appeal the notice.  This includes if the term statutory nuisance has been justifiably applied, if the terms of the notice are reasonable and necessary such as the time limit for compliance being sufficient, if the notice is correctly written and served or if there are errors and if you can demonstrate using best practicable means to avoid causing nuisance.

Local authority unable or unwilling to respond

If the local authority is not taking sufficient action to serve an abatement notice or enforce an existing abatement notice for an ongoing statutory nuisance it may be necessary to seek court action independently.  This will require the  appointment of a solicitor who will then seek independent environmental health experts to provide evidence and instruct as an expert witness. Expert evidence is provided to in the event it is sufficient to be a statutory nuisance.  The courts have the power to order that the nuisance is abated and to pay necessary compensation with failure to abate the nuisance becoming a criminal offence.

Pursuing nuisance through the courts is something that Mike Stigwood has many years of experience in both providing evidence and standing as an expert witness in high profile nuisance cases.

One day workshop on statutory nuisance

Mike Stigwood provides a one-day workshop for local government and private environmental health officers and technical assistants about the issues of basic statutory nuisance including:

• Defining statutory nuisance
• Statutory nuisance requirements
• The role of the council officer in relation to a complaint of statutory nuisance
• Important case law principles
• Abatement notice defects
• Liability e.g. Landlord duties
• Best Practicable Means
• Types of nuisance:
  • Civil nuisance
  • Public nuisance
  • Private nuisance
• Sources of nuisance:
  • Noise
  • Smoke, fumes or gases
  • Pests (animals and insects)
  • Artificial light
• Country-specific differences (e.g. Scottish law)

For more information about our workshops please visit our training page on One day workshops