Private and statutory nuisance

Nuisance is a long established area of law where you can claim in relation to someone else doing something that adversely affects your property. This is obviously important for environmental issues such as noise and smell. You take civil proceedings for nuisance ("private nuisance") in the High Court or County Court.

An alternative approach is to follow the statutory nuisance procedure which involves going to the Magistrates Court. This is laid out in the Environmental Protection Act 1990 (sections 79 to 82). It is based on similar principles, but is supposed to enable people to get relatively quick relief through the most local court system. The EPA 1990 provides two routes: one for local authorities to act (often following complaints to them, though also on their own volition), and another which allows people to act directly, without involving the local authority.

Our experience is that local authorities often do not act, or, if they do, have their action heavily delayed by opponents engaging in protracted appeals procedures.  So we often recommend clients to take action themselves, under section 82 EPA 1990. The essential step is to serve a notice on the perpetrator of the alleged nuisance requiring that it be abated within 21 days (3 days in the case of noise nuisance). If the nuisance continues, you then lay a complaint with the local Magistrates Court, which will issue a summons. The magistrates have power to order that the nuisance is abated and to pay compensation. If the nuisance is not abated, this is a criminal offence.

The advantage of the procedure is that if you lose, you do not run the risk of paying the other side's costs, unlike in civil litigation. (There are exceptions to this rule if you have conducted yourself improperly, but the honest, responsible complainant has nothing to fear).  If you win, you get your costs paid. The disadvantage is that the opponent may well have what can amount to a defence of "best practical means" available to it, which may limit one's scope for an effective remedy. There are other procedural disadvantages. However, overall, owing to the cost issues, it is probably worth considering making a statutory nuisance claim as a first port of call.

If you win in statutory nuisance, you are still able to sue in the civil courts for compensation (if, and this may be for a number of reasons, the magistrates do not order compensation, or this is only limited).

The procedure is supposed to be quick (hence the 3 day notice period for noise nuisance). In practice delays can occur, but if these are prejudicial there is scope for ensuring speed.

People (and indeed the magistrates courts themselves) are surprisingly unaware of the procedure. The common problem, we find, is that people put up with too much for too long, and/or rely on their local authorities.

We have run several statutory nuisance cases - such as one against the breaking and crushing of concrete in a building site adjacent to our clients' home, another against a builders merchant's distribution depot, another (well publicised) case in relation to noise from the Alton Towers theme park, and against unneighbourly development work. In all cases the clients came to us later than they might have done - they would have suffered so much less by earlier action.

In the first one (see the Hewlings transcript), eventually, after a trip to the High Court on a procedural issue, which gave resounding support to the procedure and its use by ordinary people complaining about things that affect their lives, we won in the local magistrates court. The defendant in the second one was so concerned about the prospect of interruption to its business that it paid substantial compensation to our clients and other complainants, so that it was able to continue working until its planned move to another site shortly afterwards.

The Alton Towers case is an example of how this relatively straightforward procedure enabled an organisation properly to appreciate effects on its neighbours and act to correct them.

The statutory nuisance tool is not used nearly as much as it could be. We recommend anyone aggrieved by some activity that affects their lives to consider using it - but do be quick about it.

We have also been involved in several private nuisance cases. The Dennis case, concerning RAF Harrier training at Wittering, showed how the courts will protect private rights of amenity and property, although in that case damages were awarded given the public interest of the activity.

In other cases one may stop or limit an activity which is carried on for "fun", such as theme parks (Roper) and motor racing circuits (Watson) - the common denominator is misery for local residents and the operator not appreciating that it should in some way pay for, or reduce, the environmental costs.

Factoring in environmental costs into our lives is, of course, a much wider issue. However nuisance law shows up obvious situations where perpetrators of environmental nuisances appear to have no conception that they owe a responsibility to those affected by their activities.