Nuisance can broadly be defined as something that unreasonably affects somebody's use and enjoyment of their home and property.
The Environmental Protection Act 1990 sets out the matters that can be classed as a nuisance. Action can only be taken under the EPA 1990 for nuisances listed in the legislation. The list includes such things as noise, smoke, fumes or artificial light. As they are set out in ‘statute’ or ‘legislation’ nuisance matters are often referred to as being ‘statutory nuisance’.
The Local Authority has a duty under the Act to take reasonable and practicable steps to investigate complaints of a nuisance. For action to be taken, the nuisance must be either prejudicial to health or a nuisance. In order to determine whether we are able to take action we will consider;
- The extent of harm arising
- The location of the problem, and who it is affecting
- How frequently and how long the nuisance lasts and what time of day it occurs
- The reasonableness of the activity
If we can determine that there is a statutory nuisance we can take action, usually in the form of an Abatement Notice, to stop the recurrence of the problem.
Sometimes the reason for us not being able to take action is because we do not have enough evidence to show the Court, because we have not been able to witness the problems for example if the nuisance occurs irregularly.
In these instances you may wish to consider whether you want to take your own private action. You can do this using the same legislation, Environmental Protection Act 1990. You do not need to use a solicitor, but you may wish to seek legal advice before taking this route. You will need to show the Court that you have tried to resolve the problem yourself by writing to the person you think is causing the problem.
You will need to show your evidence including how often the occurrence happens, how long it lasts for and how it is affecting you. You need to bear in mind that the test is an objective one, so the nuisance must be one that affects the ‘common man’. The law does not take into consideration any particular sensitivity or expectation, such as your shift working patterns. You should be confident in winning the case. If you have doubts, consider whether this is because there is no nuisance in the legal sense.
If the person concerned is breaking the law by being violent, threatening or abusive or harassing you then you should contact the police.
What you can do
Before making a formal complaint you should try to resolve the problem informally by talking to the person. If you are worried about approaching them write a letter explaining the problem clearly and sticking to the facts.
You can also consider a mediation service. Mediation is when an impartial person - trained in dealing with difficult discussions between 2 opposing sides - acts like a referee in a dispute. There can be a fee for mediation, but this will still be cheaper than hiring a solicitor and taking legal action. You can find mediation services here - civilmediation.justice.gov.uk
If the problem is not resolved you need to then write to the person concerned stating the reason for the complaint and informing them that if they do not do anything to stop or reduce the nuisance then you will be considering taking private action under section 82 of the Environmental Protection Act 1990.
Once you have sent the letter you need to start keeping a diary of when the nuisance happens and how it is affecting you. You may wish to gather evidence from other people affected by the nuisance also, such as friends or neighbours. You can use the Record of nuisance sheets attached if you wish.
Be careful, however, if you decide you want to record or video the nuisance. This type of evidence can be very useful but to avoid any action being taken against you, you should ensure you have told the person you are recording that you may be gathering evidence in this way. You can advise them in your initial letter. If you do take photographic or video evidence you should be sure to only take it of the nuisance occurring and nothing else or they may have a case against you for invasion of privacy.
Don’t forget to keep copies of all correspondence sent or received regarding your issue.
If the nuisance persists then you will need to inform the person causing the problem that you will be applying to the Magistrates Court for proceedings to be taken, and make sure you have given them at least 3 days’ notice. If the Court is satisfied you have a case you will be given a time and date for a hearing. The Court will write to the person you believe to be causing the problem.
There will be a charge for the Court hearing. If you win, you may be able to recover any costs you incur. If you are not successful you may be liable for your opponent’s costs.
What we can do
If you think you have a statutory nuisance problem and we have not already investigated the issue then please contact us on email@example.com or by phone on 01545 572105. Sometimes we can use other legislation to tackle nuisance problems. We will determine this when we have carried out some investigations into the nuisance.
If we have already investigated the problem and determined that we do not have enough evidence to take action as a statutory nuisance then you will need to consider whether you want to take your own private action.