What effect has the Environmental Protection Act 1990 had on the law relating to statutory nuisance?
Litter and abandoned shopping trolleys; waste on land and pollution at sea; clean air and stubble burning; genetically modified organisms and dogs; nature conservation and statutory nuisances — such is the range of the Environmental Protection Act 1990.
It is an Act of nine Parts, containing 164 sections and 16 Schedules. It represents an attempt by Parliament to introduce a system of integrated pollution controls by local authorities and provides for the improved control of pollution arising from industrial and other processes. Yet it was only the proposals relating to dogs which seemed to catch the attention of the press and came near to causing a constitutional crisis in terms of a clash between the House of Commons and the House of Lords.
This article will concentrate on the law relating to statutory nuisances. The Act restates the pre-existing law but it also contains improvements in the summary procedures for dealing with such nuisances.
The legal basis
The provisions relating to statutory nuisances are now contained in Part III of the Environmental Protection Act 1990 (EPA), which came into force on January 1 1991. This repealed the relevant sections of the Public Health Act 1936, sections 91-100, and also the Public Health (Recurring Nuisances) Act 1969.
Section 79 consists of a list of matters which may constitute a statutory nuisance. The list is an expanded version of the previous statute. It is not an exhaustive list.
Housing and other premises
The first definition of statutory nuisance is particularly relevant to housing workers; section 79(a):
(a) any premises in such a state as to be prejudicial to health or a nuisance;
So, housing which is defective by reason of, for example, dampness or structural defect is still covered in the same terms as it was in the Public Health Act 1936.
Clean air
Provisions relating to clean air are included for the first time alongside other statutory nuisances, although the Clean Air Acts 1956 and 1968 remain in force.
Section 79(1)(b) provides that “smoke emitted from premises so as to be prejudicial to health or a nuisance” shall constitute a statutory nuisance. This does not cover smoke from chimneys of private dwellings in smoke-control areas, dark smoke from boilers or industrial plant, smoke emitted from railway locomotive steam engines, or any other dark smoke from industrial or trade premises. The protection afforded to steam engines was achieved by a steam engine enthusiast in the House of Lords.
The original legislation relating to smoke was prompted not by industrial polluters but by domestic coal burning. The infamous London smog of 1952 prompted the Clean Air Act 1956, which introduced the present system of smoke control. Dark smoke and black smoke from industrial premises are covered by the Clean Air Act 1968. Dark and black smoke is determined by comparison with a shade card known as the Ringelmann chart, but experienced environmental health officers appear to rely on their own judgment.
So, the EPA 1990 will extend statutory nuisance to cover smoke in domestic premises, such as weekend bonfires.
Fumes or gas
In respect of private premises only, the emission of fumes or gas is covered (section 79(1)(c)). “Fumes” includes solid airborne matter smaller than dust, and gas includes vapour and moisture emitted from vapour.
Dust, steam, smell or other effluvia
Under the former provisions, dust and other effluvia were covered. Smell and steam are, therefore, new (section 79(1)(d)). It applies to industrial, trade or business premises. It may have particular application to restaurants and launderettes. Again, the enthusiast succeeded in excluding steam engines from this provision.
Accumulation or deposits in section 79(1)(e) is repeated from the provisions of the former Public Health Act as is.
Defence
It is a defence to prove that the best practicable means were used to prevent, or to counteract, the effects of the nuisance (section 80(7)). The defence is limited. In the case of premises, dust, steam, smell or other effluvia, accumulations or deposits, animals or noise, the defence is available only where the nuisance arises on industrial, trade or business premises. In the case of smoke the defence is available only where the smoke comes from a chimney. The defence is not available at all where the nuisance consists of fumes or gases, or any other nuisances declared by any other enactments.
Best practicable means covers the design, installation, maintenance, manner and periods of operation of plant and machinery, and the design, construction and maintenance of buildings and structures.
Reasonableness is a factor in determining what is practicable. Local conditions and circumstances can be taken into account, together with the current state of technical knowledge and the financial implications.
Duty of a local authority
The local authority have a duty to inspect their area to detect any statutory nuisances. If a complaint is made by a local resident, the local authority must take such steps as are reasonably practicable to investigate the complaint.
This double duty will operate to oblige those local authorities who had previously declined to inspect council premises to reverse their policy. Noise nuisance, in particular, is likely, therefore, to be a matter which will feature greatly in the activities of local authorities.
Abatement notices
Where the local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, then it must serve an abatement notice. This must require the abatement of the nuisance or its prohibition or restriction and will require the execution of such works, and the taking of such other steps, as are necessary (section 80(1)).
It is to be served on the person responsible or, if the nuisance arises from a structural defect, on the owner of the premises. If the person responsible cannot be found, then it must be served on the owner or occupier (section 80(2)).
Right of appeal
The EPA 1990 introduces a new right of appeal (section 80(3)). The person served has a right of appeal to the magistrates’ court within 21 days from service. The grounds of appeal are circumscribed by the Statutory Nuisances (Appeals) Regulations 1990 (SI No 2276). This prevents appeals being automatically lodged without any justifiable grounds in order to defer the effect of the abatement notice. While an appeal is pending, the abatement notice may be suspended. In order to prevent this, the local authority may insert a declaration in the abatement notice that it will remain effective on grounds set out in the regulations.
Failure to comply with notice
If the person served with an abatement notice contravenes or fails to comply with the notice, without reasonable excuse, then a criminal offence has been committed (section 80(4)). The local authority are not obliged to prosecute for failure to comply with a notice. However, whether or not they prosecute, the local authority may abate the nuisance and do whatever works are necessary (section 81(3)). They may recover any expenses which they reasonably incur in doing this (section 81(4)).
Action by private individuals
It remains possible for a person who is aggrieved by a statutory nuisance to bring private proceedings in the magistrates’ court. The court has power to make an order requiring the defendant to abate the nuisance and carry out necessary works (section 82). This will, therefore, continue to be useful where a local authority declines to act for whatever reason. This may occur where the nuisance arises in respect of local authority accommodation. Where premises are unfit for human habitation, the court may issue an order prohibiting their use.
The person aggrieved must serve notice on the person responsible, stating the intention to bring proceedings and setting out the matters complained of. This is a new provision. At least 21 days’ notice must be given unless the notice is in respect of noise, when it may be three days. The person to be served must be the person responsible, unless that person cannot be found, in which case the owner or occupier will be liable, or the nuisance arises from a structural defect, when the owner will be liable.
Costs now are no longer in the discretion of the court where the nuisance is proved, but are automatically granted to the complainant. Breach of the order constitutes a criminal offence.
