Common Law Nuisance and Statutory Nuisance
Shared Regulatory Services (SRS) has powers to deal with some types of nuisance. SRS may be able to help where a member of the public suffers nuisance caused by smell, smoke, noise or dust.
SRS investigates all complaints of nuisance and if unable to take action, will advise members of the public of any other options that may be available to them.
There are two different types of nuisance, Common Law Nuisance and Statutory Nuisance.
Common Law Nuisance
Common law is law that has not been passed through parliament, it has developed through legal precedent.
Action against this type of nuisance can be taken privately. Many complaints received by SRS may satisfy common law nuisance criteria but legal action can only be taken by SRS if defined as a Statutory Nuisance by the Environmental Protection Act 1990. Further advice on this matter may be obtained from your solicitor.
When deciding whether something is a nuisance, consideration must be given to the following:
It is a persons basic right to peacefully enjoy his property, but there is no right to total silence
Trivia cannot be taken account of when determining nuisance
Isolated acts, unless extreme, cannot be considered nuisance, the problem must normally be continuous and regularly occurring
The person complained of needs to substantially affect the enjoyment of comfortable living i.e. it must interfere with a person’s use, enjoyment or rights connected with his land
Nuisance can only be established in law if there is material interference with comfort from normal standards. It does not give protection to abnormally sensitive people
Neighbourhood character needs to be taken into account. What might be a nuisance in a town may not be in the country and vice-versa
Statutory Nuisances are specific nuisances that have been listed within the Environmental Protection Act 1990.
The powers within this act are used by SRS to control statutory nuisance within their area. The majority of nuisance complaints received by SRS relate to noise, smell and smoke.
Statutory Nuisances defined in the Act and include:
Any premises in such a state as to be prejudicial to health or a nuisance
Smoke including soot, grit or ash emitted from a premises so as to be prejudicial to health or a nuisance.
Fumes or gases emitted from private dwellings so as to be prejudicial to health or a nuisance
Any dust, steam or smell arising from industrial, trade or business premises being prejudicial to health or a nuisance
Any accumulation or deposit which is prejudicial to health or a nuisance
Any animal kept in such a place or manner so as to be prejudicial to health or a nuisance
Noise, including vibration, emitted from a premises or noise made in the street so as to be prejudicial to health or a nuisance
Any other matter declared by other acts to be a statutory nuisance (e.g. – Any well, butt, tank or cistern used to supply drinking water for domestic purposes which is prejudicial to health. Any tent, van, shed or similar structure used for human habitation which gives rise to conditions that are a nuisance or are prejudicial to health)
Prejudicial to health means injurious or likely to cause injury to health. A nuisance must materially interfere with a person’s enjoyment of their property. SRS can only take action on Statutory Nuisances relating to noise if it occurs at premises or from certain types of noise emitted or caused by vehicles, machinery or equipment in the street. The police deal with problems such as noise in the street from antisocial behaviour and other disturbances of the peace.
There are a number of factors that are considered when determining whether a nuisance is statutory (and therefore whether SRS can take action)
Noise must be excessive and substantially affect occupiers of neighbouring properties (e.g. disturbance of sleep)
Accumulation of refuse must be considerable and pose some health threat such as attraction of vermin. Problems of overgrown and unsightly gardens or accumulations of builderâ€™s rubble cannot by definition be a nuisance
Odours must materially affect the comfortable enjoyment of a personâ€™s property, they must therefore be intrusive
The interference must be regular or fairly constant, one-off parties or bonfires will not normally be considered a nuisance unless extreme
The nuisance must be of an unusual nature in the area you reside. Agricultural smells in a country location will not be considered a nuisance unless excessive
The time the nuisance occurs and the precautions used will be taken into account in determining if there is any action that SRS can take
The nuisance has to cross a boundary and affect the person's enjoyment of his/her own property. Visual eyesores such as overgrown gardens and problems witnessed whilst out walking may not be dealt with as Statutory Nuisances
Trades or businesses have a defence that they have employed best practicable means to minimise nuisance
The law does not normally apply to crown property
Noise in the street relates to noise from burglar alarms, car radios and alarms but does not include noise relating to antisocial behaviour
SRS will investigate complaints of Statutory Nuisance. In most cases, complainants of noise from domestic dwellings will need to have access to enable them to record the noise on the Noise App (or keep a noise diary), officers will review the recordings (or completed noise diary) and if appropriate, a letter will be sent to the person complained of, identifying the nature of the complaint (complainants details are kept confidential). The nuisance will then be monitored over a period of time.
For noise from commercial premises officers will endeavour to contact the premises concerned as soon as possible to advise of the complaint.
If, at any time, adequate evidence is available to substantiate a statutory nuisance then SRS is obliged to carryout enforcement action by serving an abatement notice that will require the nuisance to cease. There are only a limited number of officers to deal with complaints and consequently revisits cannot be made time and time again. An officer will attend the complainant’s property on three occasions (if available to do so) at the complaints request in order to witness the nuisance occurring.
Taking your own action
If adequate evidence has not been obtained, SRS will not investigate the matter further. Yoiu will then have two options to consider.
1. Section 82 of the Environmental Protection Act 1990
To do this is quite simple and it need not cost money and whilst you may wish to consult a solicitor, you instigate proceedings yourself. The procedure is as follows;-
Cardiff Magistrates' CourtFitzalan PlaceCardiffCF24 0RZEmail: firstname.lastname@example.org Telephone: 029 2046 3040 Fax: 0870 324 0236
Write to the person responsible for causing the problem asking that they abate the problem within a (reasonable) set time. Keep copies of all correspondence sent. If in your opinion the nuisance still exists or is like to recurr then contact:
Explain that you wish to make a complaint under Section 82 of the Environmental Protection Act 1990. Outline the problem and provide any evidence to support your claim (letters sent, log sheets, etc.).
The Clerk of the Court will be able to advise you further but if you wish to proceed then a notice of intention must be served on the person responsible for the nuisance. The notice gives details of the complaint and a date after which proceedings may be rought. Keep a copy of the notice.
The court may then set aside a date upon which to hear details of the complaint from both sides. You will have to prove to a magistrate beyond reasonable doubt that the problems by which you are aggrieved amount to a statutory nuisance. It is therefore important that you keep an accurate record of the times/dates that the nuisance occurs together with a description of how it has affected you. It is also advisable that you encourage other residents also affected by the nuisance to support your complaint rather than having one person’s word against another’s
If you prove your case the court can issue an Order requiring the person responsible for the nuisance to take such steps as are necessary to abate (stop) it; and
- Impose an unlimited fine
- Make a Compensation Order sufficient to compensate you for any expenses incurred in the proceedings
If the court order is not complied with further court action will need to be taken in which case you must continue to keep proper records of the dates and times that the problem occurs etc. Non compliance with a court order will attract a higher fine plus a maximum of £500 per day the offence continues after the order was made
2. Civil Action
An alternative to the above, is taking civil action for nuisance at common law by seeking either an injunction to restrain the defendant from continuing the nuisance or damages for loss. You must show either that the noise causes you particular or special loss over and above the ordinary inconvenience suffered by the public at large, or that you have an interest in land (as an occupier, tenant or owner) affected by the nuisance.
In deciding whether a particular noise amounts to an actionable nuisance, the court has to strike a balance between the right of the plaintiff to the undisturbed enjoyment of their property and the rights of the defendant. There cannot therefore be an absolute standard. It is always a question of degree whether the nuisance is sufficiently serious to constitute a nuisance, having regard to such matters as the neighbourhood and the time when the noise occurs.
The court must decide each case on the particular circumstances of the allegations. Civil action can be expensive, and it is highly advisable first to seek the advice of a solicitor about the case itself and the possibility of claiming Legal Aid for any proceedings. Help towards meeting the costs of legal advice may be available under the legal advice and assistance scheme. If the action is successful, it is likely that the court will award you some costs although this is discretionary - the action could still be expensive.
In civil actions for damages or for an injunction for the abatement, prohibition or restriction of a nuisance, the defence of 'best practicable means' is not available. The criterion is how the nuisance affects others.
Citizens Advice may be able to provide you further information on these procedures.