Peyto Law

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Planning Law Solicitors

Experiencing a nuisance? What can you do?

October 7th, 2010 by Louise Humphreys

Posted In: Environmental Health

Tags: nuisance, environmental health, injunction, complaint, magistrates' court, county court, abatement notice

We all seem to be affected by a nuisance at one time or another, whether that be because of noise, smell, vibration or some other cause. For most people the first port of call is a complaint the local authority. They will then investigate and if they conclude that the nuisance amounts to a "statutory nuisance" they will serve an abatement notice on the person responsible. However, there may be circumstances when the local authority is unable to act. This does not mean that there is nothing that can be done.

There are two main types of nuisance - common law nuisance and statutory nuisance. A common law nuisance is one which interferes with your use, enjoyment and rights concerning your property whereas a statutory nuisance is one which falls within the definition of section 79 of the Environmental Protection Act 1990 ("EPA"). The two types are enforceable in different ways.

Formal legal proceedings should, of course, be a last resort. You should therefore always attempt to resolve the problem before going to court, even if this is only on an informal basis with the person causing the problem. Alternatively, mediation services may provide a method of securing the desired outcome, although both parties do have to be willing to talk to a mediator!

Taking action for common law nuisance involves seeking either an injunction to restrain the person responsible from continuing the nuisance or damages for losses caused in the county court. You must show either that the nuisance causes you particular or special loss, over and above the ordinary inconvenience suffered by the general public or that you have an interest in land which is affected by the nuisance. It is always a question of degree whether the matter is sufficiently seious to constitute a nuisance and the court will decide each case on its own particular merits.

Taking action for a statutory nuisance involves making a complaint at the magistrates court under section 82 EPA. You must give fair warning of your intention to apply for an order by giving the person responsible 3 days notice in the case of noise and 21 days in the case of all other nuisances before applying to the court. You should deliver this notice either by hand or by some form of recorded post, keeping a copy of the notice and information about how you served it on the person responsible. The court will need to be satisfied that what you are complaining about amounts to a statutory nuisance but if the court decides in your favour it will make an order requiring the person responsible to abate the nuisance and may impose a fine. It is important to bear in mind that in these type of proceedings it is a defence for a person to prove that in respect of a nuisance caused in the course of a trade or business that the best practicable means have been used to prevent the effect of the nuisance.

How long such proceedings take will depend upon whether the person responsible accepts that a nuisance is being caused. If they refute the nuisance then a trial may be necessary.

Whichever route you consider pursuing - mediation, county court or magistrates' court - you will need a record of the nuisance including when it occured, where it is coming from, how long it lasts (i.e. starting and stopping time) what the nuisance is and how this affects you.

For example; 11:45pm to 2:30am - loud music, couldn't hear the television, went to bed at 12:15am but couldn't sleep, children woken up at 1:30am, could hear the words of each song through the walls, complained to Mr X the following day, he said it was his house and he would do what he wanted.

If there are other people (e.g. neighbours) who have also witnessed the nuisance and who would be willing to give evidence then this will improve your case.