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.

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 builder’s rubble cannot by definition be a nuisance
• Odours must materially affect the comfortable enjoyment of a person’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;-

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:

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.