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Action by occupiers

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How occupiers can take action themselves if there is a statutory nuisance.

Action under the Environmental Protection Act 1990

Tenants, other occupiers,[1] and certain other persons aggrieved by the existence of a statutory nuisance can also take action under the Environmental Protection Act 1990 (EPA 1990) by obtaining an abatement order in the magistrates' court.[2] This is particularly useful for local authority tenants, as a local authority environmental health department cannot take action against its own local authority.

These are criminal proceedings, and can result in a nuisance order being made.[3] A nuisance order sets out works required to deal with the statutory nuisance, and may also include an order for compensation, if losses can be shown.[4] Breach of a nuisance order is a criminal offence and subject to fines.[5]

Complaint from an individual

Any 'person ... aggrieved' by the statutory nuisance may initiate proceedings.[6] Although this will usually be the tenant or licensee, case law has established that the provision extends to most people in actual occupation of the premises regardless of weather their occupation is lawful,[7] and may also include any person who comes on to land.[8] It could also include occupiers of neighbouring premises in the case of private nuisance, or a member of the public in the case of public nuisance (see Definition of statutory nuisance for an explanation of these terms).

Notice of intention

The aggrieved person must serve a notice of intention to bring proceedings on the person responsible for the statutory nuisance[9] except where:

  • the nuisance arises from any structural defect. In this case, the notice should be served on the owner of the premises[10]
  • where the person responsible cannot be found. In this case, the notice should be served on the owner or occupier of the premises.[11]

In order to be effective, a notice must be addressed to the chief executive or town clerk of a local authority,[12] unless the tenant has been given notice of an alternative address specifically for the service of notices of statutory nuisance.[13]

There is no prescribed format for the notice of intention, but it must contain the matter complained of and must be in writing.[14] It is suggested that the notice should also make it clear that unless the nuisance is abated or a reasonable proposal for abating the nuisance is given, proceedings will be commenced without further notice. The notice must be for 21 days, and court proceedings cannot be commenced until the notice has elapsed.[15]

The laying of information

Where the notice of intention is ignored or where there is no satisfactory response, the aggrieved person may then apply for a summons in the magistrates' court.[16] The procedure for doing this is called the 'laying of information'. It involves completing a form and providing details of the problem and the person responsible for the problem. It is crucial at this stage that the court is informed of the existence of the statutory nuisance at the time that the notice expired, as this could have an impact on any request for a compensation order the client may make later on.[17] It is also advisable to include a copy of the relevant section of the EPA 1990 and to request an early hearing date.

Hearing

At the hearing, independent witnesses (such as neighbours or Environmental Health Officers) may be called upon to verify the existence of statutory nuisance. The existence of a statutory nuisance and the cause of the nuisance must be proved to the criminal standard of proof, eg beyond reasonable doubt. If this is proved then the court must make a nuisance order against the landlord requiring works be carried out to either abate the nuisance within a specified time limit, or to prevent a recurrence of the nuisance.[18] The court makes a decision on what works are required on the basis of the evidence provided, and any agreement that may have been reached between the parties prior to the hearing. The required works must be made specific in the order.[19]

The court has wide discretion as to the form and content of the order and in considering the works to be specified can have regard to the future life of the property. Where the only effective way of abating the nuisance would be to demolish the property, a nuisance order requiring demolition can be made.[20]

In addition to the order, the court may impose a fine, make a compensation order[21] and, where the person responsible for the nuisance can not be found, direct the local authority to do the works instead.

It is a criminal offence to contravene an order without reasonable excuse. The penalty is a fine that may rise for each day on which the offence continues after conviction. It is possible for an appeal to be made to the Crown Court if a decision is unsatisfactory to either party.

Problem areas

Although provisions exist for individuals to take action themselves using the EPA 1990, they can be fairly difficult to use. The need for independent expert reports, medical evidence, and proof 'beyond all reasonable doubt', coupled with complex court procedures, can make this procedure daunting for clients. Eligibility for assistance with legal costs will also be a factor in deciding upon this course of action.

It is therefore important for tenants to obtain specialist independent advice before taking action, as there are several factors that tenants should be aware of before commencing. These include:

  • the need for expert evidence
  • the burden of proof ('beyond all reasonable doubt'). This means that the court must be sure that the person accused is guilty of the offence before a conviction can be made. If there is any reasonable doubt (even if unlikely), no conviction can be made.
  • the risk of incurring the landlord's costs if s/he is acquitted (eg if the case is not proved beyond reasonable doubt, or if the correct procedure is not followed)
  • the risk that the court makes an order prohibiting the tenant's return to the property
  • the risk that the court may consider 'patch' repairs to be sufficient.
  • the risk of prejudicing civil proceedings for damages if repairs are carried out as a result of action under the EPA 1990 and the remainder of the damages claimed do not exceed £5,000.[22]

[1] Pemberton v Southwark LBC [2000] CA, 13 April 2000.

[2] s.82 Environmental Protection Act 1990.

[3] s. 82(2) Environmental Protection Act 1990.

[4] s. 82(12) Environmental Protection Act 1990.

[5] s.82(8) Environmental Protection Act 1990.

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

[7] Watkins v (1) Aged Merchant Seamen's Homes (2) Historic Property Restoration Ltd [2018] EWHC 2410 (Admin); Gould v Times Square Estates Ltd [1975] Legal Action Group Bulletin 247.

[8] Coventry CC v Cartwright [1975] 1 WLR 845.

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

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

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

[12] Leeds v Islington BC [1998] Env LR 655.

[13] Hall v Kingston upon Hull [1999] Env LR D19.

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

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

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

[17] R v Liverpool CC ex p Cooke (1997) 29 HLR 249.

[18] s.82(2) Environmental Protection Act 1990.

[19] R v Horrocks ex parte Boustead [1900] 69 LJ QB 688.

[20] Brown v Biggleswade Union [1879] 43 JP 554.

[21] s.35 Powers of Criminal Courts Act 1973.

[22] Rule 26.6 Civil Procedure Rules

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