This page is targeted at housing professionals. Our main site is at www.shelter.org.uk

Remedies for statutory nuisance

This content applies to England & Wales

Local authority duty to investigate

Part 3 of the Environmental Protection Act 1990 (EPA 1990) imposes a duty on every local authority to inspect its area for statutory nuisances and to take reasonable steps to investigate any complaints of statutory nuisance that it receives.[1] The task of detecting statutory nuisances is usually delegated to Environmental Health Officers,[2] who are often made aware of statutory nuisances by complaints from residents.

In these circumstances, the local authority has rights of entry to inspect the property. If necessary, the local authority can obtain warrants to force entry, and it is a criminal offence for anyone to prevent access.[3]

Where a local authority is satisfied of the existence of a statutory nuisance or the likelihood of a statutory nuisance arising or recurring, it then becomes legally bound to take action.[4] Although obliged to follow the statutory procedures to tackle statutory nuisances, some authorities will first serve an informal notice that action will be enforced using the EPA 1990 if works are not carried out to abate the nuisance within a reasonable time.

Advisers should note that evidence from an Environmental Health Officer will not be conclusive evidence of statutory nuisance. It is only one of the factors that the court will take into account when assessing whether nuisance exists.[5]

Abatement notice

An abatement notice is a notice served by a local authority's environmental health department telling a person responsible for a statutory nuisance to take the steps necessary to stop the nuisance.

The usual enforcement procedure taken by a local authority starts with the service of an abatement notice. An abatement notice must be served where a local authority is satisfied that a statutory nuisance:[6]

  • 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[7] (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.[8] 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.[9]

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.[10]

If the person causing the nuisance cannot be found the authority can serve notice on the owner or occupier.[11] 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.[12]

Appeals against an abatement notice

There is a right of appeal against an abatement notice.[13] 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.[14]

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.[15] 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.[16]

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[17]
  • proceedings in the High Court to ensure the abatement, prohibition or restriction of the statutory nuisance[18]
  • 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.[19]

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.

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.[20] 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 and Mandatory  grounds: Assured tenancies for 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.[21] Any costs can be recovered from the person served with the notice or the present owner of the property.[22]

Emergency notices and action

Delays in the enforcement procedures within the Environmental Protection Act 1990 can make it inappropriate for tackling situations that are of immediate prejudice to health, such as leaking waste pipes. The Building Act 1984 includes a streamlined procedure for use in urgent cases.[23]

A local authority may serve the landlord with a notice outlining the defects and stating its intention to do the works necessary to remedy the defects is satisfied that:[24]

  • a statutory nuisance exists
  • following the usual procedure would cause unreasonable delay.

Nine days after service of the notice, the local authority may carry out all the necessary work identified and may recover its costs and expenses from the person on whom the notice was served.[25] Landlords can prevent this procedure taking effect only if, within seven days of service of the notice, they serve a counter notice upon the authority that they intend to remedy the defects.[26] The authority then cannot act unless:

  • the landlord fails to start the remedial works within a reasonable time or
  • having been started, the remedial works proceed unreasonably slowly or make no progress at all.[27]

The local authority must therefore closely monitor the situation. In either of these circumstances, the local authority can carry out the works in default and recover the full costs from the landlord. In cases of serious statutory nuisance, this procedure is often the most effective way to get works carried out.

Statutory nuisance in local authority accommodation

Local authority powers under the Environmental Protection Act 1990 (EPA 1990) are usually delegated to their environmental health department. It is not possible for environmental health departments to take action against their own local authorities under the EPA 1990, although they still have a duty to inspect for statutory nuisance. However, some environmental health departments may serve 'informal abatement notices' on their own local authorities.[28]

Therefore, if a statutory nuisance arises that is the fault of the local authority, eg if a local authority tenant is experiencing conditions in their property that are prejudicial to health, it is likely to be necessary for action under the EPA 1990 to be taken by the tenant themselves (see 'Action by occupiers' below).

Complaints against the local authority for failure to enforce

  • no inspection by the local authority Environmental Health Officer (EHO) takes place, or where it is unreasonably delayed
  • the EHO does not agree that a statutory nuisance exists
  • the EHO agrees that statutory nuisance exists but will not take further action.

In these situations, it may be possible to use the local authority's internal complaints procedure and, if still dissatisfied, complain to the Local Government and Social Care Ombudsman (see the page Local Government and Social Care Ombudsman (LGSCO) for more on this) or the Chartered Institute of Environmental Health .

Alternatively, it may be appropriate for the aggrieved person(s) to start proceedings themselves (see 'Action by occupiers' below); to arrange an inspection by an independent EHO, or to gather medical evidence in order to try to persuade the local authority to take further action.

It may also be possible to take the actions of a local authority or a magistrates' court to judicial review on a legal or procedural point. Judicial review is a general legal remedy that can be used to challenge all administrative decisions of local authorities and other public bodies. It can only be used to challenge the manner in which decisions have been made, rather than the actual decision itself.

Action by occupiers

Tenants, other occupiers,[29] 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.[30] 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.[31] 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.[32] Breach of a nuisance order is a criminal offence and subject to fines.[33]

Any 'person ... aggrieved' by the statutory nuisance may initiate proceedings.[34] 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,[35] and may also include any person who comes on to land.[36] 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[37] except where:

  • the nuisance arises from any structural defect. In this case, the notice should be served on the owner of the premises[38]
  • where the person responsible cannot be found. In this case, the notice should be served on the owner or occupier of the premises.[39]

In order to be effective, a notice must be addressed to the chief executive or town clerk of a local authority,[40] unless the tenant has been given notice of an alternative address specifically for the service of notices of statutory nuisance.[41]

There is no prescribed format for the notice of intention, but it must contain the matter complained of and must be in writing.[42] 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.[43]

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.[44] 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.[45] 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.[46] 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.[47]

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.[48]

In addition to the order, the court may impose a fine, make a compensation order[49] 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.[50]

Statutory nuisance and human rights legislation

Article 8 of the European Convention on Human Rights, which is incorporated in the Human Rights Act 1998, gives everyone the right to respect for private and family life. Local authorities are only able to infringe this right when it is in accordance with the law, necessary in a democratic society, or for the protection of others. An occupier who believes that her/his human rights have been or would be infringed by a public authority in the UK can bring a claim against that public authority in the domestic courts.

Several cases have raised the issue of nuisance in relation to human rights. In one case,[51] the court stated that interference by a local authority with an occupier's enjoyment of their property may be an infringement of their human rights. In another case,[52] the court refused to accept that the local authority could be held liable for the actions of a tenant who was causing nuisance to a neighbouring occupier.

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

[2] s.101 Local Government Act 1972.

[3] Sch 3, para 2 Environmental Protection Act 1990.

[4] Cocker v Cardwell [1869] LR 5 QB 15.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[21] s.17 Criminal Justice Act 1991.

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

[23] ss.76-83 Building Act 1984.

[24] s.76 Building Act 1984.

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

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

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

[28] Cardiff CC v Cross (1982) 6 HLR 1.

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

[30] s.82 Environmental Protection Act 1990.

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

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

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

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

[35] 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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[50] Rule 26.6 Civil Procedure Rules

[51] Pemberton v Southwark LBC [2000] CA.

[52] Mowan v Wandsworth LBC [2000] CA.

Back to top