How can abatement notices affect you? Naomi Cohen gives property owners and managers guidance as to what to do when served with an abatement notice and warns that a landlord can become involved where a tenant or occupier is to blame but cannot be traced.
Environmental liability is not limited to properties built on “contaminated land” or those used for industrial purposes. Criminal liability also attaches to use of any property which amounts to “statutory nuisance”. Penalties include criminal convictions and possible unlimited fines, not only for all property owners but also for directors or officers of property-owning companies.
What is a statutory nuisance?
When the local pub or nightclub regularly plays music at such a level that the surrounding residents feel as if the performance is taking place in their own front room, it is possible that a statutory nuisance is occurring.
Statutory nuisance is a term in use under current environmental legislation (the Environmental Protection Act 1990), but to understand it you must first know what a nuisance is. In general terms, a nuisance is created by unlawful interference with a person’s use or enjoyment of land. This can take the form not only of physical damage to land but also by causing discomfort to the owner. An element of repetition is required because a one-off incident will rarely constitute a nuisance. It is also necessary to put the alleged nuisance in the context of its environment, for something which may be nuisance in a residential area may not be in a purely industrial location.
Statutory nuisances with which the legislation is concerned are those created by any premises in a state deemed prejudicial to health generally or which, owing to the emission of smoke, fumes, gas or noise or (in the case of industrial, trade or business premises) dust, steam and smells, are prejudicial to health or a nuisance. For example, a factory in a residential area with regular heavy fume emissions which cause coughing and skin irritation, or an office building with a noisy generator or air-extraction unit.
It is the duty of every local authority to inspect its area to detect statutory nuisances and investigate complaints. If, having done so, it is satisfied that a statutory nuisance exists and is likely to recur, it should serve an abatement notice.
Form of the abatement notice
The notice will require the abatement of the nuisance or prohibit or restrict its occurrence or recurrence or require the execution of such works as may be necessary to achieve this end. In the case of the noisy pub or nightclub, the notice may simply say that the noise level should not exceed “X” decibels at a particular point, which leaves it up to the owner/occupier to decide how this can be achieved. As an alternative, which is far more restrictive, the notice may specify in detail the nature of the work to be carried out, for example, sound insulation of walls. The notice must also state the time within which it is to be complied with.
The legislation requires that the notice is served on “the person responsible for the nuisance”. However, where this person cannot be found, the notice is to be served on the owner or occupier of the premises. If the nuisance arises from a structural defect, it is to be served on the owner, irrespective of who is responsible for the nuisance.
What should you do if served with a notice?
There may be many things that you may be tempted to do with an abatement notice. However, most would not be fit to print here! You should definitely not ignore it. Instead you must give the notice proper consideration as soon as possible. Do not wait to do this until after your time-limit for appealing has expired.
If, when you have considered the notice, you think it is unreasonable in any way, you may have grounds for appeal (see below). If so, the appeal must be initiated within 21 days of service of the notice on you, otherwise the right to appeal is lost. This time-limit is set by statute – it cannot be extended, even by agreement with the local authority.
Failure to comply
Unless you have lodged an appeal you must comply with the notice. Failure to do so constitutes an offence for which the local authority can prosecute. If found guilty, apart from your criminal conviction, you could be fined up to £20,000 in the magistrates’ court (if the offence relates to trade, industrial or business premises – otherwise the maximum is £5,000) or, if the prosecution has been dealt with by the Crown Court, the fine could be unlimited. You will also be liable to pay prosecution costs. The notice will remain in force despite conviction and continued failure to comply will constitute further offences.
Where a company fails to comply with a notice, its directors or officers may also be guilty of the same offence if it was committed with that person’s consent or connivance or as a result of his neglect. In the case of a company managed by its shareholders, the same principles apply to such shareholders.
The nature of the offence will dictate which court will deal with it. If the statutory nuisance is so serious, or the offence relates to persistent failure to comply with an abatement notice, the magistrates may decline jurisdiction and refer the matter to the Crown Court on the basis that their fining powers are not adequate to punish the offender.
In the case of persistent offenders, the local authority may take action to abate the nuisance itself and then recover the cost from those responsible. As an alternative, a High Court injunction may be obtained to stop the nuisance. Breach of an injunction amounts to contempt of court and could lead to further fines and imprisonment.
Appeal from the notice
As we have already seen, the appeal must be made within 21 days of service of the abatement notice. There are nine principal grounds on which your appeal may be made which include:
- The notice is not justified by the legislation (eg where it is felt that the use of your premises which is in issue does not, in fact, constitute a statutory nuisance).
- There has been some informality, defect or error in, or in connection with, the notice (eg where the requirements of the notice are not specific enough so that you do not know what you are required to do. This may render the notice void for uncertainty).
- The authority has refused unreasonably to accept alternative remedies or the requirements of the notice are otherwise unreasonable in character or extent or are unnecessary.
- The time-scale allowed for compliance is unreasonable or insufficient.
- The notice should have been served on someone instead of you or in addition to you (eg where a tenant is responsible for the nuisance but the landlord has been served with the notice).
If you have even a hint of a ground, you should appeal. Apart from protecting your position, you will also have strengthened your negotiating position with the local authority. If you do not appeal, the notice will bind you as it stands.
In most cases, the notice is suspended until the appeal has been abandoned or decided by the court. There are exceptions to this rule, but where the local authorities intend to rely on these they must endorse the notice to say that it shall have effect notwithstanding an appeal and state on which exemption they rely. In these circumstances, it is arguable that you may be committing an offence by failing to comply with the notice even though you have appealed from it. This means that if the court finds ultimately that the notice has been properly served, you could be prosecuted for failure to comply prior to the hearing of the appeal.
On appeal, the court may either quash the abatement notice, vary it in your favour (but not in favour of the local authority) in such manner as it thinks fit or dismiss the appeal (which will often be accompanied by an order that you pay the local authority’s costs). In addition, the court may rule that some other person is to contribute to the costs of any works to be carried out by you, but before involving such person, the court must be satisfied that he has received a copy of the complaint.
Local authorities’ approach
The legislation states that a local authority shallserve an abatement notice where it is satisfied that a statutory nuisance is occurring. Fear of being sued for breach of statutory duty usually prompts local authorities to serve a notice even where the person responsible may have undertaken either to stop the nuisance or carry out the necessary works without a notice being served. For this reason also local authorities are often reluctant to withdraw a notice once served.
However, once you have appealed and the local authority is aware of your grounds, it may agree at that stage to withdraw the notice after some negotiation. It may be swayed by non-legal considerations including your existing or proposed contribution to the local community, for example, as a substantial employer in the area, or a proposed investment either in employment or public amenities. Therefore, it is not only strict legalities which apply in creating a package deal acceptable to both sides.
Most authorities are happier to reach a compromise with which you will comply rather than become involved in the risk and cost of court proceedings.
Examples
Local authorities take action in a variety of cases. For example, against restaurants with noisy air-conditioning units or emitting strong smells (fines of £2,000 to £3,000 recorded) or owners and managers of pubs and clubs for excessive noise. Last year, Yorkshire Water was convicted for failing to comply with an abatement notice served following complaints of “rotten egg” smells emanating from part of its plant. The company was fined £8,000 and ordered to pay £4,150 costs.
Landlords of domestic premises can also be prosecuted for refuse accumulations in empty properties and, in one extreme case, four co-owners of a domestic property in such bad repair that it was considered to be prejudicial to health were each fined £2,000.
Finally, two lorry loads of equipment containing amplification and public-address-system equipment were recently seized by a local authority following an abatement notice served after “raves” took place on consecutive weekends. It should be remembered that, where those responsible for the nuisance cannot be found, the owner of the premises will be served with a notice. Perhaps property owners may now think carefully before allowing their premises to be used for such events.
Naomi Cohen is a member of the environmental law unit at City solicitors Paisner & Co.
