Statutory nuisance

Find out about how we deal with nuisances caused by noise, smoke, fumes, dust, odour, artificial light, animals, insects and accumulations

There are two ways of addressing a nuisance: either through the common law (i.e. law made by the courts in successive judgements) or, if applicable, through statutory nuisance provisions in the Environmental Protection Act 1990.

There is a variety of situations that a court could consider to be a nuisance under common law, but under the Environmental Protection Act 1990, only certain matters may also be a statutory nuisance. The possible statutory nuisances are:

• noise from premises or from vehicles, equipment or machinery in the street
• smoke, fumes or gases from premises (for example, bonfires)
• dust, steam or smells from industry, trade or business premises
• artificial light from premises (for example, security lights)
• insect infestations from industrial, trade or business premises
• accumulations or deposits (for example, piles of rotting rubbish in a garden)
• the physical condition of premises
• the place or manner in which an animal is kept
• the polluted or foul state of a blocked watercourse, or ditch, etc.; a contaminated well, tank, or cistern, etc.; tents, vans or sheds used for, but unfit for, human habitation (as defined in the Public Health Act 1936)
• a dangerous abandoned mine or an unfenced quarry (as per the Mines and Quarries Act 1954)

For one of these issues to count as a statutory nuisance it must, in the words of the legislation, be "prejudicial to health or a nuisance". Therefore the issue must do one or both of the following:

• injure health or be likely to injure health
• unreasonably and substantially interfere with the use or enjoyment of someone else’s home or other premises

Action under common law for a (private) nuisance must be taken by the person suffering it and having a legal interest in the affected land, whereas action for a statutory nuisance can be taken by the person suffering it or by the Council.

     Making a complaint          Taking private action

The definition of what constitutes a nuisance has been developed through many years of legal judgments on what is and what is not a nuisance. For example, the case of Bamford v Turnley defined nuisance as "any continuous activity or state of affairs causing a substantial and unreasonable interference with a (claimant's) land or his use and enjoyment of that land".

Nuisance law is based around the use of property without undue interference. A nuisance has to cross a property boundary and be the use or condition of one piece of land adversely affecting another person's use or enjoyment of his/her own property. Therefore an issue which disturbed you whilst walking on a public footpath, or whilst you were a visitor somewhere, could not be a nuisance to you. The Council could not deal with these issues unless it was something, defined in the legislation, that was also dangerous to health.

The test to be applied for a statutory nuisance is the same as for a common law (private) nuisance. The matter must be excessive, regular or constant, and must substantially and unreasonably interfere with your wellbeing, comfort or the enjoyment of your property. That property may be a residential or commercial property. Specific sensitivities of a person complaining cannot be taken account of in deciding whether a matter is a nuisance. These could be factors such as unusual shift patterns or medical conditions. The courts have to be satisfied that a nuisance would be caused to an average person. Therefore where a sensitive person experiences a significant interference, which an average person would not, there can be no nuisance in law. Generally there must be an element of continuance (or frequent recurrence) and a one-off incident will not normally amount to a nuisance (but may be harmful to the health of anyone and actionable as a statutory nuisance (e.g. black smoke)). Temporary or occasional interference involving little actual or potential harm would rarely constitute a statutory nuisance.

The statutory nuisance regime does not deal with harm to property; a statutory nuisance must affect someone's health, or their wellbeing and personal comfort - for example dust affecting cars would not be statutory nuisance, but dust in a person's eyes or hair would be. The case of Wivenhoe Port Ltd v Colchester Borough Council held that for a nuisance to be a statutory nuisance had to be one interfering materially with the personal comfort of the resident even though it might not be prejudicial to their health.

Visual eyesores, overgrown gardens or accumulations of builder’s rubble cannot be a statutory nuisance. However, in certain circumstances these matters can be dealt with by the Anti-social Behaviour Crime and Policing Act 2014 where they are having a detrimental effect on the quality of life of those in the locality.

Investigations

The Council must take steps as are reasonably practicable to investigate a complaint of a nuisance listed in the Environmental Protection Act 1990, but it cannot take legal action unless it is satisfied that a statutory nuisance exists and can be proved.

There are occasions when we do not witness the problem or do not have enough evidence to demonstrate that a nuisance exists. Section 82 of the Environmental Protection Act 1990 does allow you to take your own action against a nuisance by making a complaint directly to the magistrates’ court. More information on this is provided below.

To take action on your behalf, our officers must witness and experience the nuisance you are complaining about. We must also be satisfied that there is enough evidence to show to a court that the issue is serious enough to be considered a statutory nuisance in a legal sense.

Abatement notice

Where we are satisfied that a statutory nuisance exists, or is likely to occur or recur, the Council will serve an abatement notice. The notice will usually be served on the person responsible, but can also be served on the owner or occupier of the premises. This may require the person or company to:

• stop the activity
• limit it to certain times and/or
• specific actions to reduce the problem, such as improvement works to be carried out in a specified time

A person served with an abatement notice may appeal against the notice to a magistrates’ court within twenty-one days of the notice being served.

With noise nuisances from premises, the notice can be delayed for up to 7 days while the Council tries to get the person responsible to stop or restrict the noise.

Failure to comply with an abatement notice

Causing a statutory nuisance is not an offence in itself, but not complying with an abatement notice, without reasonable excuse, is a criminal offence. A person who commits that offence can be prosecuted in the magistrates' court and fined:

• a lump sum (the amount is set by the court) - the maximum fine is unlimited
• further fines for each day they fail to comply (the amount is set by the court)

Councils can also take action to stop or restrict the nuisance by:

• carrying out works and making the person given the notice pay for them (this can include seizure and confiscation of equipment
• applying to the High Court for an injunction (if a prosecution is not adequate)

If you have made a complaint concerning a nuisance, you must be prepared to attend court.

Best practicable means

Where an abatement notice relates to activities carried on at a business, trade or industrial premises, it may be a defence in court to demonstrate that best practicable means have been used to prevent or counteract the nuisance. The use of best practicable means can also be used as grounds for appealing against an abatement notice.

The best practicable means defence or grounds for appeal applies to smoke from a chimney at domestic premises as well as trade or industrial premises.

Environmental permits

In cases where the Environmental Permitting (England and Wales) Regulations 2016 or the Health Safety at Work etc. Act 1974 apply, the Council may not try and address (noise, smoke, dust, steam, smell, odour, light or an accumulation or deposit) using the statutory nuisance provisions without permission from the Government.

Environmental permits for some regulated facilities, such as waste operations and installations, normally include specific conditions that address potential nuisances. Operators of waste sites that are exempt from needing a permit have to, amongst other things, avoid causing nuisance. If they do, the exemption no longer applies, and a permit is needed. We would liaise with the appropriate regulator, if that is not us, in these circumstances to make sure that people aren’t penalised twice.

Noise

We have produced separate guidance on noise issues - the various sources of intrusive noise and different remedies.

The statutory nuisance regime in the Environmental Protection Act 1990 deals with noise, but so does the Noise Act 1996 (night-time noise) and the Control of Pollution Act 1974 (noise from construction sites, small building works and loudspeakers in the street).  Excessive noise can also be dealt with as anti-social behaviour through the Anti-social Behaviour, Crime and Policing Act 2014.

Noise may be a nuisance at any time of the day. However, when assessing nuisance, the regularity, timing, duration and volume of noise episodes is taken into account in relation to the character of the area and source of the noise. 

Noise, for the purposes of the Environmental Protection Act 1990 includes vibration.

Statutory nuisance laws don’t apply to noise from:

• traffic
• planes
• political demonstrations and demonstrations about a campaign or cause
• premises occupied by the armed forces

The courts have also decided that a statutory nuisance also cannot be caused by noise from the ordinary and reasonable use of residential premises, such as doors closing, footsteps and voices.

Smoke, fumes and gases

We have produced guidance on the various laws applying to bonfires and burning waste (the Environmental Protection Act 1990 (Parts II and III), the Clean Air Act 1993 and regulations under the Pollution Prevention and Control Act 1999) and also guidance on smoke control areas.

Smoke covered by statutory nuisance law in the Environmental Protection Act 1990:

• smoke from residential, business and industrial premises (unless it’s exempt)

The following types of smoke aren’t covered by statutory nuisance law:

• chimney smoke from houses in smoke control areas*
• dark smoke from chimneys of buildings or from chimneys serving fixed boilers or industrial plants that are attached to buildings or on land*
• smoke from steam trains
• smoke from premises occupied by the armed forces

*these are covered by the Clean Air Act 1993 - see smoke control areas and bonfires and smoke

If someone emitting smoke from a chimney is served with an abatement notice and they’ve used the best practicable means to stop or reduce the smoke, they may be able to use this as grounds for appeal against the abatement notice or as a defence, if prosecuted for not complying with the abatement notice.

Fumes and gases covered by statutory nuisance laws:

• fumes and gases from residential dwellings only

We cannot deal with fumes and gases from other premises, such as a factory, as a statutory nuisance. The activity producing them may be regulated under other legislation, such as the Health and Safety at Work etc. Act 1974 or the Environmental Permitting (England and Wales) Regulations 2016.

Making a complaint

Disputes with neighbours are often best resolved by mediation. For a list of mediation schemes contact UK Mediation.

To report a statutory nuisance to the Council, or to get advice, please contact us:

• telephone 0191 278 7878 and ask for 'environmental health'
• email: psr@newcastle.gov.uk

Outside of normal office hours we provide a limited service to deal with emergency situations.  In an emergency:

• telephone 0191 278 7878 and ask for 'environmental health'

It is necessary to show that someone is being adversely affected to demonstrate that a nuisance exists, so you should be prepared to provide your contact details. We don't investigate anonymous complaints.

We will keep details of anyone making a complaint confidential. However, it may be necessary to reveal your identity to support the Council’s case if formal legal action is taken. We may also require evidence from you to support a case and this will be disclosed during any prosecution or an appeal against an abatement notice.

If your complaint goes on to a formal investigation stage, it may be registered against your property. This then has to be disclosed if and when you come to sell it.

Taking private action

The Environmental Protection Act 1990 makes provision for a complainant (individual or company) to make an application directly to a magistrates’ court to make an order for abatement or prevention (nuisance orders).

Some types of nuisance occur only occasionally, and it may not be possible for us to witness it, or we may feel we could not prove in a court that the issue complained of is a nuisance. If, for whatever reason, we cannot establish a statutory nuisance, or you do not wish to involve us, then you can take independent action by complaining direct to the magistrates' court under section 82 of the Environmental Protection Act 1990.

A nuisance may also be actionable by the person suffering from it under common law and outside of the statutory nuisance regime. This is different to approaching a magistrates' court. Advice should be sought from a solicitor before taking action in the county court or High Court.

Magistrates’ court procedure

You will need to prove to the magistrate beyond reasonable doubt that the problem you are complaining of amounts to a nuisance. Keep a diary and see if there are any independent witnesses you can call to give evidence.

Write to the person you believe is causing a nuisance, informing them that if the nuisance has not been abated by a certain date you will complain to the magistrates' court. Keep copies of all letters.

If the nuisance persists, contact the HM Courts & Tribunals Service's local court listing office and explain that you wish to make a complaint under section 82 of the Environmental Protection Act 1990. A solicitor can do this for you but this will involve some expense.

You will then have to attend the court when asked to do so by the clerk and show the court your evidence. If they decide you have an arguable case, a summons will be served on the person responsible for the nuisance, giving the date and the time of the court hearing.

You must then attend the magistrates' court at the hearing together with any witnesses you may have. You can either employ a solicitor or present the case yourself.

The magistrates or district judge will listen to evidence from yourself and the defendant and decide if a nuisance is proven. They will make any appropriate orders or dismiss the case.

Private nuisance

If the issue is not defined as a statutory nuisance, the Council will be unable to assist, but a private nuisance may still exist. Nuisance may be caused when someone carries out an act, or omits to do something, on his or her own land which affects another person’s use or enjoyment of their own neighbouring land. Like with statutory nuisance, the behaviour or omission must amount to an unlawful or unreasonable interference with the other person's land and must be something more than just irritating. Examples of private nuisances abound. Private nuisances may be tree roots growing across land, soil spillage or contamination, development works or domestic odours.

A private nuisance is a tort, that is, a civil wrong, and it can give rise to a legal claim. A person suffering loss damage or interference can take civil proceedings in the county court or in The High Court for either damages to compensate their loss, or injunctive relief (an injunction) to require the other party to stop the nuisance. To determine accountability for an alleged nuisance, a court will examine three factors: the defendant's fault, whether there has been a substantial interference with the plaintiff's interest, and the reasonableness of the defendant's conduct. The law on nuisance/negligence is complicated and we would advise anyone considering such action to first seek advice from a solicitor. Alternatively, for some nuisances, the victim may be able to take practical steps themselves to stop the nuisance. More information can be found here.