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Using the Environmental Protection Act 1990

This content applies to England & Wales

Duties councils have to take action against noise under the Environmental Protection Act 1990.

Council duties

If the affected person is not able or willing to approach directly the person responsible for the noise, and mediation is not appropriate, it is likely that the best remedy is to complain to the local council.

Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate complaints of noise so as to decide whether the noise is a statutory nuisance, and to inspect its area to detect any statutory nuisance.[1] If the noise is a statutory nuisance, then the council must serve an abatement notice.[2] If a statutory nuisance is not abated, then a criminal offence may be committed. An occupier can also take action directly her/himself. This is particularly useful where the council is responsible for the statutory nuisance, as a council cannot serve an abatement notice on itself. Specific action may also be taken in urgent situations. For more information, see the section on the Environmental Protection Act 1990.

Definition of statutory nuisance

The Act includes in the definition of 'statutory nuisance':

  • noise emitted from premises so as to be prejudicial to health or a nuisance.[3] This does not include noise caused by aircraft but does include model aircraft[4]
  • noise that is prejudicial to health or a nuisance that is in a street and is emitted from or caused by an unattended vehicle, machinery or equipment, eg a car alarm.[5] This does not include noise caused by traffic, the armed forces or a political demonstration.[6]

The definition of noise includes vibration.[7] Prejudicial to health is defined in the Act as 'injurious, or likely to cause injury, to health'.[8] Nuisance is not defined in the Act but has been defined in case law[9] as either:

  • a public nuisance at common law. This is where an act or failure to act affects adversely the comfort or quality of life of the public generally or a class of people; or
  • a private nuisance at common law. This is a substantial interference by the owner or occupier of property with the use and enjoyment of neighbouring property.

There are two main consequences of this definition. First, to be a 'statutory nuisance', the nuisance, unlike 'prejudicial to health', must affect the occupiers of more than one premises.[10] Secondly, what qualifies as a nuisance may not qualify as 'prejudicial to health'. It will usually be enough that the noise limits the enjoyment of the property and makes life uncomfortable for the occupiers of adjoining properties.[11] Whether the noise actually constitutes a statutory nuisance will depend on the particular circumstances.

Case law indicates that normal domestic noise that causes a problem due to poor sound insulation cannot cause premises to be in a state that is prejudicial to health even if there is good medical evidence. This is because, as a matter of statutory construction, it has been held that the legislation was not aimed at the method of construction of a building and was instead aimed at the quick removal of 'noxious matters'.[12]

Examples of noise as a statutory nuisance range from barking dogs,[13] to quarry machinery,[14] to overnight use of facilities provided by a garage forecourt.[15]

Abatement of noise

The council's duty to investigate complaints and inspect its area is usually carried out by an Environmental Health Officer (EHO). An EHO has a right of entry to inspect property that may be in such a state as to be a statutory nuisance. S/he can obtain a warrant to force entry and it is a criminal offence for anyone to prevent access.[16]

If the council decides that a statutory nuisance exists, or is likely to occur or recur, then the council must serve an abatement notice.[17] The notice requires the person responsible for the statutory nuisance to carry out any works and take any steps necessary to stop or restrict the noise.

The notice must be served:

  • on the person responsible for the statutory nuisance[18]
  • if the noise is due to a structural defect, on the owner of the property[19] (note that poor sound insulation would not constitute a defect)
  • in cases where the person responsible for the statutory nuisance cannot be found, or the nuisance has not yet occurred, on the owner or occupier of the premises.[20]

In the case of noise in the street that is caused by an unattended vehicle, machinery or equipment, such as a car alarm , then, whether a statutory nuisance has occurred or not, the notice can be fixed to the item in question.[21] An EHO also has the power, after notification to the police, to enter, open or move the unattended vehicle, machinery or equipment to deal with the noise. If this is not possible then s/he can immobilise it.[22]

The council cannot serve a notice on itself.[23] Instead, in cases involving noise caused by defects in council properties, it may, as a matter of local practice, serve an 'informal abatement notice' on the relevant section of the council. However, in practice this is very rare. If a council tenant causes the noise, then the council can serve a notice on the tenant. The person on whom the notice has been served can appeal.[24]

If the person on whom the notice has been served fails to comply with the notice, without reasonable excuse, then s/he is guilty of an offence.[25] The council may prosecute, but there is no duty to do so. The council can also carry out the works itself and recover the cost from the person who failed to comply with the notice.[26] This is usually called 'works in default'. If the noise is coming from a property and is caused by equipment, such as a stereo, then the council can seize the equipment.[27]

Advisers should note that the High Court has held that 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.[28] In the same case, the High Court also stated that the evidence of an Environmental Health Officer would not be conclusive evidence of statutory nuisance but just one of the factors to be considered.

Previous legislation

Prior to the Environmental Protection Act 1990, local councils could issue Statutory Notices to control noise nuisance under section 58 of the Control of Pollution Act 1974. Notices issued under this section, despite section 58 having been repealed by the Environmental Protection Act 1990, are still enforceable by the issuing council.[29]

Action by the occupier

Any occupier has the right to take action directly her/himself.[30] Since a council cannot take legal action against itself, this right is particularly useful for taking action against a council. Similarly, this is useful for an occupier who is unhappy with the action taken by the council, or the lack of it. For other remedies that the occupier can pursue if s/he is unhappy with the action taken by the council, see the page on Inaction by the council/RSL.

The occupier must first serve a notice that s/he intends to bring proceedings. The notice needs to state the noise that is being complained about,[31] but otherwise does not need to be comprehensive or set out what remedial works are required.[32] The notice is to be served on the same person as the notice that could be served by the council, above.[33] In noise cases only, the notice must give at least three days' notice of court proceedings.[34]

If the noise continues, the occupier may apply for a summons in the magistrates' court.[35] The court can order the person responsible for the noise to abate it and/or stop it recurring, and can also impose a fine.[36]

In addition, an occupier who is dissatisfied with the council could request that the Secretary of State intervenes to compel the council to act.[37] In practice, it is unlikely that the Secretary of State would exercise this power.

Urgent situations

Although rarely used in noise cases, in urgent situations for which the above procedure would cause unreasonable delay, then under the Building Act 1984 the council can serve a notice giving nine days for the statutory nuisance to be abated.[38] If no action is taken after this period, then the council can abate the nuisance itself and recover its expenses from the person responsible for the noise.[39]

The person on whom the notice is served can prevent the council abating the nuisance, and recovering its expenses, if s/he serves a counter-notice and abates the nuisance in a reasonable time.[40]

[1] s.79(1) Environmental Protection Act 1990.

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

[3] s.79(1)(g) Environmental Protection Act 1990.

[4] s.79(6) Environmental Protection Act 1990.

[5] s.79(1)(ga) Environmental Protection Act 1990.

[6] s.79(6A)(a) Environmental Protection Act 1990.

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

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

[9] National Coal Board v Neath BC [1976] 1 WLR 543, Divisional Court.

[10] National Coal Board v Thorne [1976] 1 WLR 543 at 546.

[11] R v White and Ward [1757] 1 Burrow's Reports 333 and R v Neill [1826] 2 Car & P 485.

[12] Vella v (1) Lambeth LBC and (2) London and Quadrant Housing Trust [2005] EWHC 2473 (Admin) applying R v Bristol CC, ex parte Everett [1999] LGR 513 and Birmingham CC v Oakley [2001] 1 AC 617, HL.

[13] Clemons v Steward (1969) 113 Sol Jo 427.

[14] Saddleworth UDC v Aggregate and Sand Ltd [1970] 69 LGR 103.

[15] Hammersmith LBC v Magnum Automated Forecourts Ltd [1978] 1 All ER 410, [1978] 1 WLR 50.

[16] paras 2 and 3, Sch.3 Environmental Protection Act 1990.

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

[18] s.80(2)(a) Environmental Protection Act 1990.

[19] s.80(2)(b) Environmental Protection Act 1990.

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

[21] s.80A Environmental Protection Act 1990.

[22] para 2A Sch.3 Environmental Protection Act 1990.

[23] Cardiff CC v Cross (1982) 6 HLR 1, CA.

[24] s.80(3) Environmental Protection Act 1990. For more information on appeals see para 1, Sch.3 Environmental Protection Act 1990 and the Statutory Nuisance (Appeals) Regulations SI 1995/2644.

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

[26] s.81(2)-(4) Environmental Protection Act 1990.

[27] s.81(3) Environmental Protection Act 1990, as allowed by s.10(7) Noise Act 1996.

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

[29] Aitken v South Hams District Council [1994] 3 All ER 400.

[30] s.82 Environmental Protection Act 1990.

[31] s.82(6) Environmental Protection Act 1990.

[32] East Staffordshire BC v Fairless [1999] Env LR 525 ; Pearshouse v Birmingham CC [1999 ] LGR 169.

[33] s.82(4) Environmental Protection Act 1990.

[34] s.82(7) Environmental Protection Act 1990.

[35] s.82(1) Environmental Protection Act 1990.

[36] s.82(2) Environmental Protecton Act 1990.

[37] para 4, Sch.3 Environmental Protection Act 1990.

[38] s.76(1) Building Act 1984.

[39] s.76(2) Building Act 1984.

[40] s.76(3) Building Act 1984.

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