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Abatement notices

This content applies to England & Wales

Abatement notices, the right of appeal against an abatement notice, and the options that exist where a notice is not complied with.

Abatement notice

The usual enforcement procedure taken by a local authority starts with service of an abatement notice. An abatement notice must be served where a local authority is satisfied that a statutory nuisance:[1]

  • exists
  • is likely to occur, even where it does not exist at present and has not occurred previously, or
  • has existed and is likely to recur even if it does not exist at present.

Local authorities can therefore take action against recurring or potential statutory nuisances, even if they are not in existence at the time the abatement notice is served.

The notice must be served on the person responsible for the nuisance[2] (this could be the tenant if s/he unreasonably refuses the landlord entry or prevents the landlord from carrying out works) requiring her/him to carry out any works and take any steps necessary to abate the nuisance.[3] The notice is not required to specify exactly what works are required to abate the nuisance, but must give time limits for the completion of remedial works. The notice must give sufficiently clear information for the person responsible to be able to identify the problem and the works required.[4]

The Environmental Protection Act 1990 (EPA 1990) makes it clear that where the statutory nuisance arises from any structural defect, eg inadequate sound insulation which allows noise to enter the premises, the abatement notice should be served on the owner of the premises.[5]

If the person causing the nuisance cannot be found the authority can serve notice on the owner or occupier.[6] If this happens, the occupier will need to try to find the person who is responsible for the nuisance and inform the local authority. Where more than one person is responsible for a statutory nuisance, the notice may be served on each person whether or not her/his conduct alone would amount to a nuisance.[7]

Appeals

There is a right of appeal against an abatement notice.[8] The appeal must be brought in the magistrates' court within 21 days of the notice being served. There are nine grounds for appeal, which are:

  • the abatement notice is not justified by the EPA 1990
  • there has been an error, defect or informality in the notice served
  • the local authority has refused unreasonably to accept compliance with alternative requirements, or if the requirements of the abatement notice are unreasonable or unnecessary
  • insufficient time has been allowed for compliance with the requirements of the abatement notice
  • in the case of nuisances arising on trade or industrial premises; or arising due to smoke being emitted from a chimney; or arising from a vehicle, machinery or equipment in a street that is being used for business purposes; that the best practicable means was used to prevent or counteract the effects of the nuisance
  • in the case of nuisances arising from noise emitted from premises, that the requirements of the abatement notice are more onerous than the requirements under the Control of Pollution Act 1974
  • in the case of nuisances arising from noise emitted from or caused by vehicles, machinery or equipment in a street, that the requirements of the abatement notice are more onerous than the requirements under the Noise and Statutory Nuisance Act 1993
  • that the abatement notice should have been served on some other person
  • that the abatement notice could have been served on some other person and it would have been equitable for it to have been served on the other person instead
  • that the abatement notice could have been served on some other person and it would have been equitable for it to have been served on the other person as well.

Any appeal must be based on at least one of these specified grounds.[9]

The magistrates' court has the power to quash or vary the abatement notice, or to dismiss the appeal. There is a further right of appeal to the Crown Court against any decision that the magistrates' court may have made on an appeal against an abatement notice. This is available to anybody involved in the proceedings.

Failure to comply with abatement notice

If the person served with an abatement notice has not complied with (or successfully appealed against) the requirements of the notice and does not have reasonable excuse, then s/he is guilty of an offence.[10] A justification advanced that loud music was played to drown out noise from building works was held not to be capable in law of being a reasonable excuse. Had such a justification been allowed, a statutory scheme intended to stem nuisance would have perversely led to its multiplication.[11]

An abatement notice will remain in force until it has been complied with.

The local authority has three courses of action where an abatement notice has not been complied with:

  • prosecution through the magistrates' court for contravention or non-compliance with the notice[12]
  • proceedings in the High Court to ensure the abatement, prohibition or restriction of the statutory nuisance[13]
  • abating the statutory nuisance itself by carrying out works to satisfy the requirements in the notice. This is commonly referred to as 'works in default' and the local authority is entitled to recover the costs it incurs from the person served with the abatement notice.[14]

There is nothing in the EPA 1990 that states that the local authority must take any action to enforce the abatement notice. However, if the statutory nuisance still exists, or is still likely to occur, then it will remain under a duty to do something to remedy the nuisance (see the page on Investigative duties for details).

A person who is convicted of an offence for breach of an abatement notice can appeal to the Crown Court against that conviction. In one case, the High Court (on an appeal by way of case stated) upheld the decision of the Crown Court to quash the conviction of a person for breach of an abatement notice for excessive noise and disturbance in using the property as a synagogue, despite evidence in support of the conviction from an Environmental Health Officer.[15] The High Court acknowledged that expert evidence would not determine the outcome of a case, the court had to decide a case on the whole of the evidence placed before it. The fact that a property had planning permission to be used as a religious place of worship, and the property was registered for that use, was relevant when determining whether or not there was a statutory nuisance.In addition, from 20 October 2014, breach of an abatement notice by a secure or assured tenant, or by someone living or visiting the property, can lead to eviction under the mandatory ground for antisocial behaviour (see the pages Mandatory ASB ground: secure tenancies

andMandatory ASB ground: Assured tenanciesfor more information).

Fines

Where a failure to comply is proven, the offender is liable to a fine which may continue to rise for each day on which the offence continues after conviction.[16] Any costs can be recovered from the person served with the notice or the present owner of the property.[17]

[1] s.80(1) Environmental Protection Act 1990.

[2] s.79(7) Environmental Protection Act 1990.

[3] s.80(1)(a)(b) Environmental Protection Act 1990.

[4] Stanley v Ealing LBC (1999) 32 HLR 745.

[5] s.80(2) Environmental Protection Act 1990 and Southwark LBC v Ince (1989) 21 HLR 504.

[6] s.80(2)(c) Environmental Protection Act 1990.

[7] s.81(1) Environmental Protection Act 1990.

[8] s.80(3) Environmental Protection Act 1990.

[9] Statutory Nuisance (Appeals) Regulations 1995 SI 1995/2644.

[10] s.80(4) Environmental Protection Act 1990.

[11] Waltham Forest LBC v Mitoo [2016] EWHC 2159 (Admin).

[12] s.80(4) Environmental Protection Act 1990.

[13] s.81(5) Environmental Protection Act 1990.

[14] s.81(4) Environmental Protection Act 1990.

[15] R (on the application of Hackney LBC) v Rottenberg [2007] EWHC 166 (Admin).

[16] s.17 Criminal Justice Act 1991.

[17] s.81(4) Environmental Protection Act 1990.

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