Legal Advice On Statutory Nuisance And Abatement Notice

Background of the Case

Aware that you are studying at Middlesex, you have been approached by a friend for some advice. Your friend owns and rents out a number of luxury family homes.  Between two of these properties there is a large disused pub, which has been empty for a few years. Recently the pub has been bought and the new owner is planning on turning it into cheap shared accommodation to be rented to students.

The new owner owns his own building firm, and so uses his builders to carry out building work when they’re not elsewhere.  Your friend informs you that building work starts early in the morning, and carries on until 9:00pm most evenings.  Also the owner seems to be working there all day every Saturday and Sunday using all sorts of noisy equipment.  Your friend informs you that, at times, the vibration form the building works shakes his properties, and he is worried about structural damage.  As well as the noise and vibration, your friend is also concerned about dust coming off the site, especially as one of the tenants, Mrs Turner and her two young children suffer from asthma.  Mrs Turner has stated that if the work is not stopped she is going to the papers and TV because of her children’s health.

Prior to commencement of the works Mr Brown, the new owner of the site, contacted the council because of local opposition to the development.  He sought advice about working hours and best practicable means to limit the impact of the works on nearby residents. Advice was given to Mr brown on working hours, noise and dust control and on the need to be neighbourly since this is a long (18 months) contract. However, when works began Mr Brown complained to the environmental health department that one of the neighbours began to be abusive and threatening to his employees on site.

The Council’s Planning Department is keen for the development to proceed as it was once a derelict site with a bad reputation for fly-tipping.  Hence the owner is under pressure to complete the works.

The development is a four storey building with commercial use on the ground floor and residential above.  There will also be a basement car park.  The site is congested and severely restricted for space.

Prepare a report which provides suitable advice to your friend, and to Mrs Turner. Please refer to the case study above as context for your discussion. You should consider the following points:

• Whether it would be appropriate for them to complain to the local council and asking them to investigate this complaint with a view to serving a notice under the Environmental Protection Act 1990.

• How would the council establish if a statutory nuisance was being caused?

• What steps should be taken if a statutory nuisance exists?

• Other remedies that may be available.

Background of the Case

Part III of the Environmental Protection Act 1990 (EPA) deals with statutory nuisances, controls over offensive trades and clean air. The existence of statutory nuisance is a matter of judgment, as there is no clear objective definition of nuisance as was observed in Budd v Colchester BC 1997. However, in Baxter v London Borough of Camden 2000, nuisance has been considered as an interference that causes unreasonable personal comfort of the people and hinders the amenity or enjoyment of the neighbors or the society. The local Council is under statutory obligation to inspect the area under his jurisdiction, in the event any complaint is made before relating to statutory nuisance.

According to section 79 of the Act, the following matters amounts to statutory nuisance:

• smoke emitted from premises;
• noises from vehicles, machines, equipment;
• any deposit that is prejudicial to health;
• gases or fumes that are emitted from the premises and are prejudicial to the health;
• any other matter declared by the statutes that constitutes statutory nuisance;

Under section 79(1) of the Act, every local authority is under legal obligation to inspect the areas under its jurisdiction regularly in order to detect any statutory nuisance (MacIntyre 2017). In case, any complaint is made before the local authority regarding any statutory nuisance, the authority must take necessary steps that are reasonably feasible for the purpose of investigating the complaint made by such person. If the local authority fails to take, any action against the complaints made before it regarding the nuisance or if the investigation is not conduct on a regular basis, it shall be deemed that the authority has failed to satisfy the requirements and the Secretary of State may initiate action against the same.

According to section (79) (7) of the Act, any person who causes statutory nuisance by using any machinery or equipment shall be deemed to be the person who operates such machinery or equipment at at the time of committing the statutory nuisance (Wolf and Stanley 2013). Since nuisance has no clear objective definition, the same can be determined by conducting a test regarding what decent people or ordinary people would find it unreasonable or unacceptable shall be considered as statutory nuisance. Although under section 82 of the Environmental Protection Act (EPA) any person may initiate legal action against the person-committing nuisance, the initial enforcement method relies on the local authority to take necessary action against the wrongdoer.

In order to establish an issue as a statutory nuisance, if such matter substantially and unreasonably interferes with the enjoyment of any person or such matter is likely to cause injuries to the health of such person. Section 80 of the EPA lays down that after the local authority is satisfied that statutory nuisance have been committed or is likely to occur again, it must serve an abatement notice to the person committing such nuisance (Jenkins 2015). The notice shall prohibit or restrict the person from committing statutory nuisance or its recurrence. The person shall become legally obligate to take reasonable steps to ensure that he would restrict causing nuisance. The notice shall specify the time within which the person is require to act in compliance with the notice (Baker 2015). 

Statutory Nuisance and Abatement Notice under Environmental Protection Act 1990

The Abatement notice may be dismissed on appeal; however, if the commission of nuisance is proved under the notice, the wrongdoer shall be entitled to severe financial sanctions under such circumstances. In case noise nuisance arises from premises, the abatement notice can be delayed for up to 7 days and during that period, the council shall make attempts to prevent the person from causing such nuisances. The person to whom the abatement notice is served may prefer a appeal against the notice to the sheriff within a period of 21 days from the date of receipt of such notice (Davey and Battersby 2016). If the person committing such nuisance fails to act in compliance with the abatement, notice or does not appear on the duty of appeal hearing, shall be entitled to prosecution and shall be awarded penalties. The notice of penalty shall be sent to the wrongdoer under section 80 ZA of the EPA, the amount of penalty shall be decided by the court.

Further, under section 82 of the Act, the aggrieved person may initiate a private action against the wrongdoer and seek an order from the sheriff after providing the wrongdoer with a 21 days prior notice (Brown 2015). Furthermore, an abatement notice may be enforced in three ways- serving a fixed penalty notice; report the issue to the Procurator Fiscal for further criminal prosecution or seek an injunction from the High Court.

In the given scenario, the new owner of the pub, named as Mr. Brown, owns his own building firm and his builders carry out the building work. The building work starts in the morning and continues until 9 pm, including Saturdays and Sundays using every kind of noisy machineries and equipments. Consequently, the vibration of the construction work shakes the properties of the aggrieved person, which may cause structural damage. Moreover, along with the vibration and the noise, the dust that comes off the site concerns the tenant Mrs. Turner as she and her children are suffering from asthma.

Further, Mr. Brown contacted the council and the council informed him a out the working hours and the best practicable means that he must resort to in order to reduce the impact of the workers on the residents. The council also advised him regarding the noise and dust control and to be nice and polite within the neighbors as the contract is for 18 months only. Since the Council’s Planning Department requires the development to proceed therefore, Mr. Brown is under pressure to finish the development work.

Responsibility of Local Authority to Investigate and Take Action

Here, Mr. Brown was well aware of the working hours, dust and noise control and should have acted in compliance with such rules and regulations. Nevertheless, he acted in contrary to the rules and caused statutory nuisance within the locality. He was aware of the fact that the building under construction is situated within a residential area; he persisted to create noise and that to until 9 pm. he did not take reasonable precautions to prevent the duct coming off the building work. According to section 70 of the EPA, any dust or noise pollution that causes injury to the health of any person amounts to statutory nuisance and must be prohibited from occurrence or recurrence. Therefore, this amount to statutory nuisance and it would be appropriate for the aggrieved person to complain to the local council and asking him to investigate the complaint and serve a notice to Mr. Brown under the EPA 1990.

After the compliant is made before the local council, regarding the statutory nuisance, the council is under statutory obligation to investigate into the complaint. According to section 71 (1) of the act, every local authority must take reasonable steps to inspect the area mentioned in the compliant, to detect whether any statutory nuisance has been committed (Macrory 2014). Nuisance can be determined by conducting a test where what decent people or ordinary people would find it unreasonable or unacceptable shall be considered as statutory nuisance. While investigating, in order to establish an issue as a statutory nuisance, the local council must observe if the matter complained against, is substantially and unreasonably interfering with the enjoyment of the aggrieved party or is likely to cause injuries to the health of such person. Here, Mr. Brown is injuring the health of the tenant, Mrs. Turner and her children who being asthmatic are suffering from the dust that is coming of the building works. Moreover, the machines and equipments make noises throughout the day until 9 pm and are likely to cause structural damages to the building of the aggrieved party. Thus, the issue complained against is injuring the health of the complainants and therefore, amounts to statutory nuisance.

After investigating, the area complained against the local authority is of the opinion that the matter in issue amounts to statutory nuisance, the council shall serve an abatement notice under section 80 of the EPA 1990. Such notice would prohibit Mr. Brown from continuing with the statutory nuisance and prevent him from committing the same again. Mr. Brown may prefer an appeal against the notice to the sheriff within a period of 21 days from the date of receipt of such notice (Morton 2016). If he fails to act in compliance with the abatement notice, he shall be entitled to prosecution and shall be awarded penalties. The notice of penalty shall be sent to him under section 80 ZA of the EPA, the amount of penalty shall be decided by the court. Other remedies available to the aggrieved party may be to report the issue to the Procurator Fiscal for further criminal prosecution or seek an injunction from the High Court (Council 2016). 

Conclusion

Mr. Brown has failed to act in compliance with the EPA as despite being ware of the rules regarding working hours, dust and noise control and the manner he should treat the neighbors, he violated the rules. Even though Mr. Brown was under pressure to finish the development, he should have complied with the statutory obligations laid down under the EPA therefore is liable to be penalized.

References

Baker, D., 2015. Application of noise guidance to the assessment of industrial noise with character on residential dwellings in the UK. Applied Acoustics, 93, pp.88-96.

Baxter v London Borough of Camden 2000.

Brown, L.A., 2015. Land pollution, environmental risks and bank lending: An empirical analysis. Environmental Law Review, 17(4), pp.237-251.

Budd v Colchester BC 1997.

Council, T.R.D., 2016. Noise pollution.

Davey, C. and Battersby, S., 2016. Legal systems and the role of law in environmental health and approaches to regulation. Clay's Handbook of Environmental Health, p.167.

Jenkins, V., 2015. The legal response to safeguarding local environmental quality. Legal Studies, 35(4), pp.648-674.

MacIntyre, S., 2017. 4 Environmental health, environmental protection and their relationship with spatial planning. Planning Law and Practice in Northern Ireland.

Macrory, R.B., 2014. Regulation, enforcement and governance in environmental law. Bloomsbury Publishing.

Morton, D., 2016. Public health and nuisances.

Weston, J., 2014. Planning and environmental impact assessment in practice. Routledge.

Wolf, S. and Stanley, N., 2013. Wolf and Stanley on environmental law. Routledge.