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Definition of statutory nuisance

This content applies to England & Wales

The definition of a statutory nuisance contained in the Environmental Protection Act 1990.

Types of nuisance

Statutory nuisance is defined in section 79 of the Environmental Protection Act 1990 (EPA 1990) as '... any premises in such a state as to be prejudicial to health or a nuisance'. [1] Each element of this definition is examined in detail below. The EPA 1990 contains a specific list of matters that amount to statutory nuisances and a more general category comprising '... any other matter declared by any enactment to be a statutory nuisance'.[2] The specified types of nuisance are:

  • premises in such a state as to be prejudicial to health or a nuisance
  • smoke emitted from premises
  • fumes or gases emitted from premises
  • dust, steam, smell or other waste from industrial premises
  • accumulation or deposits of noxious waste 
  • animals kept in such a manner or place as to constitute a nuisance
  • insects emanating from relevant industrial, trade or business premises and being prejudicial to health or a nuisance
  • artificial light emitted from premises
  • noise emitted from premises
  • noise caused by vehicles, machinery or equipment in a street.

'Prejudicial to health' is defined as '... injurious, or likely to cause injury, to health'.[3] This means that both actual and potential injury to health is covered by the EPA 1990.

Premises

The definition of premises in the EPA 1990 includes all land and vessels (except a vessel which is powered by steam reciprocating machinery) and therefore is wide ranging.[4] It covers both private and public sector housing. The courts have held that the EPA 1990 focuses on the condition of the premises rather than the way that they are used.[5]

Premises may be an individual flat or a number of flats where there is a block of flats. A statutory nuisance in relation to the entire block can only be alleged where the occupiers are complaining of the condition of the common parts, or where there is a problem that is only related to the block as a whole.[6]

A site without any permanent buildings may also be premises. The EPA 1990 can therefore be used to eliminate statutory nuisances on caravan sites and other land used for residential purposes.[7]

In such a state

The premises as a whole have to be prejudicial to health or a nuisance in order for a statutory nuisance to occur. This can be due to a single major item of disrepair, such as a leaking roof, or a number of minor items. Although there may be disrepair to premises, it is actually the effect of the defect that gives rise to the nuisance rather than the disrepair itself. A nuisance can be from outside the premises, such as where the noise from local traffic penetrates the property due to lack of or poor insulation.[8]

Prejudicial to health

This covers both actual and potential ill health. Where the state of the premises is enough to cause a well person to become ill or the health of a sick person to deteriorate, the courts will normally be satisfied that it is prejudicial to health. Under the EPA 1990, the premises do not have to be occupied in order to be prejudicial to health.[9] However, the EPA 1990 does not cover the risk of accident or physical injury (eg from very steep stairs).[10]

However, the test of whether premises are prejudicial to health has been held by the courts to be an objective test, and the person's particular circumstances or needs cannot be taken into account.[11]

Health is not defined in the EPA 1990, but should be interpreted to include both physical and mental health. This would include the effects of the stress of living in poor housing conditions. In order for action to be taken under the EPA 1990, expert evidence will need to be obtained of the effects of the housing conditions. This could be from a GP, hospital consultant, or Environmental Health Officer (EHO). See the page on Investigative duties for more details about this. However, expert evidence will not be conclusive on the issue of nuisance, it is merely one piece of evidence to be considered with all the other surrounding circumstances.[12]

Dampness, condensation or mould growth are all examples of defects in premises that are considered prejudicial to health. However, the landlord will not be liable if these occur because the tenant has failed to use the heating system properly.[13]

Interference with comfort or decorative defects, such as stained wallpaper, will not bring a case under the prejudicial to health aspect of the EPA 1990.

The location of rooms will not in itself make premises prejudicial to health. In one case, the toilet was off one side of the kitchen and the bathroom was off the other side. The toilet did not have a sink. The nearest sink was in the kitchen, which meant there was a risk of cross-infection. The court found that the prejudice to health arose from the fact that it was not possible to wash hands or use a sink in the toilet, not from the location of rooms.[14]

Nuisance

Nuisance is not explained in the EPA 1990, but the issue has been clarified in case law[15] which has held that a nuisance within section 79(1)(a) must either be one of the following:

  • public nuisance at common law: this is where an act or failure to act adversely affects the comfort or quality of life of the public generally or a class of citizens
  • private nuisance at common law: this is a substantial interference by the owner or occupier of property with the use and enjoyment of neighbouring premises. This could also include common parts retained by the landlord.

Neither public nor private nuisance occurs if what has taken place only affects the person or persons occupying the premises.[16] If the conditions in the premises are only causing problems for the tenant (or other occupier), a statutory nuisance will not arise unless it can be proved to be prejudicial to health as described above.

A nuisance at common law does not have to be prejudicial to health. It will usually be enough that the problem makes the quality of life uncomfortable for the occupiers of adjoining property or members of the public[17], and so offensive smells, noise and refuse may fall within this definition.[18]

For more information about public or private nuisance, see the page on Nuisance.

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

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

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

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

[5] Metropolitan Asylum District Managers v Hill [1881] 6 App Cas 193; Fulham Vestry v London CC [1897] 2 QB 76.

[6] Birmingham DC v McMahon [1987] 19 HLR 452.

[7] R v Secretary of State for Environment, ex parte Ward [1984] All ER 556.

[8] Southwark LBC v Ince (1989) 21 HLR 504.

[9] Lambeth LBC v Stubbs [1980] 255 EG 789.

[10] R v Bristol CC, ex parte Everett [1998] 3 All ER 556.

[11] Cunningham v Birmingham CC (1998) 30 HLR 158.

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

[13] Pike v Sefton MBC [2000] QBD.

[14] Oakley v Birmingham CC [2001] 1 AC 617, HL.

[15] Salford CC v McNally [1976] AC 379.

[16] National Coal Board v Thorne [1976] 1 WLR 543.

[17] Fearn & Others v Trustees of the Tate Gallery [2019] EWHC 246 (Ch); Hunter v Canary Wharf [1997] AC 655, HL; R v Neill [1826] 2 Carrington and Payne 485; R v White and Ward [1757] 1 Burr 333.

[18] Joyce v Hackney LBC [1976] 24 June (unreported).

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