Taking your own action.
The council’s public protection staff are the recognised experts in assessing the existence of a statutory nuisance and their professional judgement is particularly important. If they consider a statutory nuisance is being caused, a magistrate will usually accept their view.
Statutory nuisance is difficult to define but can be described as the unreasonable interference with the use and enjoyment of one’s property, assessed from the average person’s perspective. It’s threshold is far more than an annoyance. However, it is not always possible for the council to establish the existence of a statutory nuisance. This may be because the nuisance occurs only occasionally, and it is not possible for council officers to witness the nuisance. In other cases, the officer may feel the matter could not be classed as a statutory nuisance and, therefore, cannot take any legal action on behalf of a complainant. In these situations, you can take independent action by complaining directly to the Magistrates’ Court under Section 82 of the Environmental Protection Act 1990.
This is easy to do and need not cost very much. It is not necessary to employ a solicitor, as the Clerk of the Court is responsible for guiding you through the process in court.
What you should do
Firstly, discuss the problem with the person causing it. Most neighbourhood concerns can be resolved informally, with a little co-operation on both sides. Sometimes neighbours do not realise they are causing a problem. Try to be reasonable, otherwise discussions could end in further arguments and deterioration in neighbour relations.
If this fails to resolve the issue, you may wish to consider mediation. Mediators are independent, non-legal people who listen to both sides of the dispute and help those involved to reach agreement. Further details on your nearest Mediation Service can be found at http://civilmediation.justice.gov.uk/.
If attempts to resolve the matter informally fail, you may complain directly to the Magistrates’ Court.
How to complain directly to the Magistrates’ Court
The Magistrate must be satisfied that the issue amounts to a statutory nuisance and this is for you to try and prove to the Court.
The Magistrate must be satisfied that the issue amounts to a statutory nuisance.
These points will help you to put your case:
- Keep a detailed written record of the problem and its effects. The record must be accurate, stating each date and time the problem occurred, and describing how it affected you (for example, could not sleep, could not hear TV, etc.)
- Do not exaggerate any effect or times – stick to the facts. Remember, there must be an unreasonable interference with the enjoyment of your property.
- Provide as much evidence as possible to support your allegation of a statutory nuisance. If you decide to take your own legal action under Section 82 of the Environmental Protection Act 1990, you must give the perpetrator at least 3 days’ notice for noise issues, and at least 21 days’ notice for all other nuisance issues.
What do I need to include in the notice to the perpetrator?
The notice should include details of the complaint. It can be delivered to the perpetrator by hand or post. Make sure your letter is dated and keep a copy. It is likely to strengthen your case if you have acted in a reasonable manner and given the perpetrator the opportunity to rectify the situation before resorting to legal action.
What if there is still no improvement?
The next step is to contact the Clerk of the Magistrates’ Court. Tell them you wish to make a complaint under Section 82 of the Environmental Protection Act 1990. They will likely make an appointment with you to discuss the procedure and ask you to produce evidence that you have an arguable case.
You must also let them know if the council’s public protection team has investigated. Subject to the evidence being satisfactory a summons will be issued and served on the perpetrator, stating the date and time arranged for the court hearing.
The perpetrator will likely come to court to defend themselves and may even make counteraccusations. You may want a solicitor to represent you at the hearing, but this is not essential.
Legal Aid is not generally available towards the cost of proceedings in the Magistrates’ Court, but, depending on your financial circumstances, legal advice prior to the proceedings may be available under the Green Form Scheme.
If you present your own case, the Clerk of the Court will give you advice and guidance. At the court hearing, both parties will be given the opportunity to present their case to the Magistrates, who will then decide the outcome of the case, based on the evidence presented.
If they are satisfied that a statutory nuisance exists, or may happen again, outcomes could include the following:
- An order requiring the person causing the nuisance to stop it within a specified time
- An order preventing the nuisance starting again.
- The Magistrates may also fine the perpetrator with an unlimited fine if they feel this is necessary.
- If the Magistrates are not satisfied that a nuisance existed, exists, or is likely to occur in future, no action will be taken by the court.
If the nuisance is arising on an industrial, trade or business premises, it is worth knowing that they may have a defence if they can prove that best practical means were used to prevent, or to counteract the effects of, the nuisance.
If your case is not upheld, the perpetrator may ask the court to rule on costs. This ruling could mean that you are directed to pay costs for the defendant.