Statutory nuisance

Statutory nuisance is a concept introduced in the environmental health legislation to assist both Local Authorities and private individuals in dealing with specific types of nuisance which have an impact upon the health of individuals. In essence, the law on statutory nuisance was carved out of the original general common law on nuisance. Whilst common law nuisance includes a very broad range of activities, nevertheless statutory nuisance focuses specifically on a series of categories of nuisance which have an impact upon the health of people. Statutory nuisance is specifically defined in the Environmental Protection Act 1990 and it is therefore limited to specific categories of nuisance.

The categories of statutory nuisance are as follows:-

1. Any premises in such a state as to be prejudicial to health or a nuisance.

2. Smoke emitted from premises so as to be prejudicial to health or a nuisance.

3. Fumes or gages emitted from premises so as to be prejudicial to health or a nuisance.

4. Any dust, steam, smell or other effluvia arising on industrial, trade or business premises and 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 as to be prejudicial to health or a nuisance.

7. Noise emitted from premises so as to be prejudicial to health or a nuisance.

8. Any other matter declared by an enactment to be a statutory nuisance.

The advantage of the concept of a statutory nuisance is that a Local Authority is by law obliged to seek to abate a statutory nuisance when one is discovered. In essence, the Local Authority has a statutory duty which can be enforced through an Order from the High Court whereby the Local Planning Authority must do what it can to seek to alleviate the said statutory nuisance. In order to determine whether a statutory nuisance exists, a duly qualified Environmental Health Officer employed by the Local Authority must visit the site in question and, after analysing the alleged nuisance, form a view as to whether it constitutes a statutory nuisance. Environmental Health Officers are specifically trained to make this assessment. Clearly, as a firm, we have given advice to Local Authorities relating to the various processes concerning the assessment of statutory nuisances and we have advised them on the processes relating to the preparation and issue of Abatement Notices. It should be noted that when a statutory nuisance is discovered, the Local Authority has a mandatory obligation to issue the Abatement Notice. Accordingly, the decision is an important one. However, cases are very rarely simple and straightforward. The recent case of R (on the Application of Hackney London Borough Council) v Rottenberg [2007]Env LR Page 24 illustrates the problem. The case can be briefly summarised as follows:-

(a) Facts

The facts of the case were simple and straightforward. The Defendant was a Rabbi(R) who occupied one half of a semi-detached house as a school and synagogue. The other half was occupied solely as a residence. Following complaints by the next door neighbour of chanting, shouting and banging on floors which was taking place in the school and synagogue, the Local Authority Environmental Health Officers visited the neighbour and formed the view that the noise amounted to a statutory nuisance in terms of section 79(1)(g) of the Environmental Protection Act 1990. An Abatement Notice was duly served on R who was subsequently charged with six counts of failing to comply with an Abatement Notice without reasonable excuse. R successfully appealed against conviction by the Magistrates to the Crown Court which held that the noise in question had not amounted to a statutory nuisance and that a finding that the noise in question amounted to a statutory nuisance would have been a disproportionate interference with his freedom of religion under Article 9 of the European Convention of Human Rights. The Local Authority, Hackney London Borough Council (HLBC), then appealed to the High Court by way of case stated against the decision of the Crown Court. No technical evidence in the form of noise readings or decibel levels had been presented before the Crown Court. The Local Authority Environmental Health Officers had simply presented expert evidence to the Court to the effect that the noise in question amounted to a statutory nuisance. The Crown Court had held that it was not bound by the opinion of witnesses notwithstanding the fact that they were expert witnesses. It went on to hold that a nuisance did not exist. HLBC then appealed to the High Court.

(b) Decision

The High Court held that the decision as to what constitutes a nuisance is in effect one for the Court to decide. Certainly, the Crown Court was not bound by the opinions of the Environmental Health Officers who head the noise in question notwithstanding the fact that they were experts. When considering whether noise amounts to a nuisance it was, as the Crown Court had rightly held, necessary to have regard to a number of factors including the nature and context of the neighbourhood, the competing and conflicting interests of adjoining owners and occupants and other people affected and whether the activities in question were sanctioned by Planning Permission. In the last analysis, the noise in question did not rank as a statutory nuisance. The High Court went on to hold that the threshold for liability in statutory nuisance is the same as that which obtains under section 79(1)(g) of the Environmental Protection Act 1990.

The main point which the Rottenberg case emphasises is that it is up to the Court to decide whether a statutory nuisance exists. The Court must decide whether the adverse state of affairs complained of exceeds what is reasonably tolerable. The evidence of expert witnesses is not conclusive.

Accordingly, it is clear that law and practice concerning statutory nuisance involves a number of grey areas and nothing can be said with certainty. Given that it is a very contentious area, it is essential that advice on proposals for taking action on the grounds of statutory nuisances is obtained at the earliest opportunity. Our firm can provide such advice. In particular, we have advised on the one side Local Authorities on such matters and on the other side private individuals who have been in dispute with Local Authorities on such matters. When advising the Local Authorities on such cases, we have provided specific advice on the form and content of proposed Abatement Notices. Given that the recipients of Abatement Notices can pursue Appeals against Abatement Notices before the Magistrates Courts, it is essential that the Abatement Notice is not only fully supported by cogent and detailed evidence but is also drafted in such terms that it cannot be open to challenge before the Magistrates Courts. It should be noted that such matters are extremely important and indeed can have substantial financial consequences for Local Authorities. Even a dispute over one particular part of an Abatement Notice can lead to an extremely long Court hearing which can have significant consequences in financial terms particularly if the Local Authority were to lose before the Court on the points of challenge raised by the recipient of the Notice. There have been cases where the Abatement Notice has been upheld by the Court but varied by the Court for the purpose of amending one small part of the Notice. In circumstances where the relevant part of the Notice occupied most of the Court’s time then in such cases the Local Authority is responsible for the payment of all of the costs of the hearing. Accordingly, extreme care is required relating to the preparation and issue of Abatement Notices.

When acting on behalf of private individuals who are the recipients of Abatement Notices, we are in an excellent position to provide expert advice on the assessment of the basis for the Abatement Notice and indeed the interpretation of the terms of the said Notice. We have considerable experience in providing advice on how Abatement Notices may be subject to further discussions with the Local Planning Authority after an Appeal has been lodged. We have in many cases sought to not only challenge but also substantially amend by way of negotiation and settlement the terms of Abatement Notices where appropriate to the advantage of the private client.

We have also provided general advice where appropriate on mitigation measures to deal with certain types of nuisance. One of the most common types of nuisance is of course the noise nuisance that can have a severe impact upon the health of the occupiers of land. We have provided advice on ways in which noise nuisances can be mitigated by for example engineering works creating bunding or the erection of soundproof fencing as part of the boundary treatment for development schemes.

Issues relating to statutory nuisances can of course constitute a material planning consideration when considering a development scheme. Central Government has provided clear advice in the relevant Planning Policy Statement on the way in which for example noise issues can be approached in relation to the development of land. We can provide advice on all aspects of these matters to developers where appropriate and indeed to Local Authorities when called upon.

We can also provide advice to private individuals who wish to initiate their own proceedings based upon a claim of alleged statutory nuisance. Such cases can be initiated under Section 82 of the Environmental Protection Act 1990 by way of a complaint in the Magistrates Court. We can provide advice on the grounds for pursuing such matters where appropriate.