Advice on Taking Private Action for Nuisance
In some circumstances the Council may be unable to act on behalf of a person who has a nuisance problem. This may be due to the type of problem, the circumstances of the case or lack of evidence. If the Council cannot take action, or if you prefer to do so yourself, a variety of alternatives may be available.
Pursuing a solution yourself - whether by informal or legal action -is relatively straightforward and you should not be daunted. You should, however, satisfy yourself on these three points before proceeding:
- you know for certain who is responsible for the nuisance bothering you
- you have discussed your problem with them and been unable to reach an agreement
- your problem is serious enough to warrant the course to action you plan to take
We advise you to read this general advice thoroughly and take more professional advice before proceeding.
What is a Nuisance?
Nuisances may be continuous or intermittent, occur during the day or at night. They may relate to noise, vibration, smell, smoke, unhygienic practices, etc. In any case, whether you are suffering a nuisance depends on two considerations:
- the effect of the nuisance on you - is it materially affecting the comfort or quality of your life? Is it having a substantial effect on you?
- the reasonableness of your expectations - people live in different ways and society has to recognise our individuality, but that does not mean we should put up with unreasonable interference.
Some people need to carry out their activities at times we consider to be 'sensitive', for example carrying out DIY activities in the evenings or at the weekend. Whether an activity is reasonable will depend on what it is, where, when and how often it happens, whether the least disturbing methods are followed, and sometimes whether you were given sufficient notice to prepare for its effects on you.
This information is intended to provide practical information to help you find a solution to your nuisance problem. It is not intended to serve as independent legal advice or an alternative to taking advice. Legislation, guidance and practical methods are inevitably subject to change. You should read this information in conjunction with prevailing legislation and guidance as amended. Where legislation is summarised this is for guidance and convenience and must not be relied upon as an accurate or comprehensive interpretation. The Council accepts no liability whatsoever for any loss or damages howsoever they may arise from use of this leaflet.
Make sure of where the noise is coming from. It is not always obvious, especially if you live in flats or in converted dwellings and another occupier is causing the nuisance. You also need to find out who is responsible - is it an owner-occupier or a tenant? For rented property the landlord may (depending on their tenancy contract) be responsible for any poor sound-proofing, lack of repair or structural problems, etc. For leasehold property there may be a management committee or trust which holds some similar responsibilities.
If you are concerned about the noise coming from a neighbour's home, a local business or manufacturer, or noise from stationary vehicles and equipment in the street, often the best way to deal with the problem is to go to talk to the person or company responsible for the noise and point out the problem. You may find they are unaware that they are disturbing you, sometimes we are all guilty of making noise that annoys. The problem is not always one of inconsiderate behaviour, even homes that have reasonably good sound insulation may not cope with noise from powerful modern equipment.
Make the effort to discuss your nuisance problem with the person responsible at an early stage and before it escalates. You need to be polite and diplomatic but firm. If the conversation does not prove successful, do not allow an angry exchange to develop.
Record when the nuisance happens and how long it lasts. You should keep a notebook or diary and record details of each occasion the noise occurs. A description of the nuisance for each occasion is useful, especially if the noise is different each time. Make a note of the effect the nuisance has on you in material terms, e.g. unable to sleep, children woken, unable to open windows. This record will form the basis for your case if you decide to pursue it by taking legal action.
Also keep a record of each occasion when you have approached the person responsible for the nuisance and asked them to reduce or stop it. The Court is unlikely to be sympathetic to your case unless you have attempted to deal with the matter neighbour-to-neighbour in a friendly manner before presenting it to the Court.
Is there a Code of Practice you can refer to? Codes of Practice give advice for minimising potential causes of disturbance, nuisance, etc. Courts must have regard to relevant codes approved by the Secretary of State when considering the defence of best practicable means. There are codes approved by the Secretary of State dealing with:
- noise from audible alarms
- ice cream van chimes
- model aircraft
- construction sites
- agricultural spreading
There are also a number of other codes from other sources offering advice on subjects including:
- use of audible bird scarers
- noise from pop concerts
- off-road motorcycling
- agricultural activities
- garden bonfires
Examining your options
We advise you to contact the Citizens Advice Bureau 03444 111 444 as there are a number of different ways that you may be able to take private action dependent on the nature of your case.
Your options may include:
• Taking action for statutory nuisance in the Magistrates Court
• Taking civil action for an injunction or award of costs
• Using a Mediation Service
If the Citizens Advice Bureau advise you to consider taking your own action under Section 82 of the Environmental Protection Act 1990, this general guide should provide some assistance and information.
Informal ways of resolving your problem
Legal action should be a last resort. It is unpleasant and will inevitably further sour the relationship between you and your neighbour. It is very important that you do your best to resolve the problem in a positive but non-aggressive way. Mediation services can be a great help in achieving this, although they do require that both you and the person responsible for your problem are willing to talk to an independent mediator.
If you are an owner-occupier or private tenant there would be a fee for this service. If you are a Council tenant you should ask Council Housing to refer your case to mediation.
Taking Civil Action
Taking action for Statutory Nuisance is not the only course of legal action. Alternatively you can take civil action for noise nuisance at common law by seeking either an injunction to restrain the defendant from continuing the nuisance or by issuing a claim for damages or loss, or both.
A common law nuisance is typically one which, quite apart from statutory provisions, interferes with your use, enjoyment and rights concerning your property and violates the principles of Common Law laid down for your protection (i.e. a Private Nuisance).
Taking out a civil action can be expensive, so it is highly advisable to seek the advice of a solicitor, or the Citizen's Advice Bureau before going ahead.
Advice from a solicitor may be free to those who are financially eligible under the "Green Form Scheme". A solicitor will also be able to provide advice on whether you will be likely to meet the means and merits tests which apply to applications for full civil legal aid.
Environmental Health Department has prepared this advice to assist you. We would be pleased to hear how you get on in resolving your problem, and what you feel we could do to improve our advice in future.
Feel free to contact us if we can help to clarify anything in this leaflet: Ribble Valley Borough Council, Council Offices Church Walk Clitheroe BB7 2RA.
Complaining to a Magistates' Court about a Statutory Nuisance
Put simply, a statutory nuisance is a nuisance (see 'Nuisances' earlier in this leaflet) of a class defined by Section 79 of the Environmental Protection Act 1990. Some circumstances are explicitly excluded from being statutory nuisances or benefit from legal defences. Whether a nuisance is a statutory nuisance can only be decided by the appropriate local authority (e.g. Ribble Valley Borough Council) or a Court. If the local authority is unable to take action for you, or if you do not wish to involve it, you can complain about a noise problem direct to the Magistrates' Court under Section 82 of the Environmental Protection Act 1990. The wording of Section 82 is reproduced at the back of this leaflet.
The Magistrates' Court will need to be persuaded that your nuisance problem amounts to a statutory nuisance. The Court can grant an Abatement Order with legal effect and/or fine the person found guilty of causing a statutory nuisance.
How Do I Proceed?
Assuming that you believe that you are being unreasonably affected by disturbance amounting to a statutory nuisance, the following general advice for complaining to a Magistrates Court should be helpful. Before proceeding you should also take advice from the Citizens Advice Bureau and a solicitor if you choose to consult one. During the process you will also be seeking the advice of the Clerk to the Magistrates' Court. The Legal Adviser at the Court can only give procedural advice and not legal advice on other matters relating to your application.
Preparing your case
Make sure you have all your records in order.
Speak to your neighbours and find out whether they too are disturbed by the noise and whether they are prepared to appear in Court as witnesses on your behalf. Any independent witnesses will be of great benefit to your case.
Give fair warning of your action
Assuming that you have followed the 'First Steps' advice, and your informal approach to the person you believe is causing a statutory nuisance is not successful, there are certain things you must do before taking legal action.
It is essential that the full name and address of the person causing the nuisance is known. The Electoral Register held at Libraries and Ribble Valley Borough Council may be of use to you, or in extreme circumstances you may wish to carry out a Land Registry search.
If you decide to take action under Section 82 of the Environmental Protection Act 1990 you must legally give notice of your intentions in writing to the person causing the nuisance - at least three days for noise nuisance and at least 21 days for any other form of nuisance - and provide them with details of your complaint. Deliver your Notice by post or hand and make sure your letter is dated and you have kept a copy. A specimen letter is provided in this pack.
Working with the Court
When you contact the Court, tell them you wish to make a complaint under Section 82 of the Environmental Protection Act 1990. You will probably need to visit the Court where the procedure will be explained to you and you may be asked for evidence of the problem. This will show the Magistrates that you have an arguable case. There is a fee of £23.50 for making a complaint under the Environmental Protection Act 1990 to the Magistrates Court. Residents in Ribble Valley will normally contact Blackburn magistrates Court, or Preston magistrates Court for residents of the Longridge area.
The Court will decide if a Summons can be issued, and may ask you to serve it (by hand or by post) on the person responsible for the noise, stating the date and time for the Court hearing. If you serve the Summons, you should keep a careful record and ensure that the Notice is served well before the hearing date.
When the time comes for the hearing, you will have to attend Court to give evidence. You should consider at this stage whether you wish to have a solicitor to represent you at the actual hearing. Alternatively you may conduct the case yourself if you wish. The person responsible for the noise will probably come to Court to defend themselves, and may even make counter-accusations. If the defendant appears before the Court and pleads guilty, you will only need to present the general circumstances of the case.
If the defendant pleads "not guilty" you will have to prove the case by giving evidence on oath and calling any of your witnesses. The defendant can question you and your witnesses and call any witnesses s/he may have. Should the defendant give evidence or call any witnesses, you in turn will have the right to question them. You can only question them on the nuisance, however.
The Outcome - Win or Lose
If the Court decides in your favour it will grant an Abatement Order requiring the offender to abate the nuisance and specify the measures they will have to take to achieve this. The Abatement Order may also prohibit or restrict a recurrence of the nuisance. The Court may also impose a fine of up to £5,000. You may be awarded reasonable costs incurred by you in bringing the action against the nuisance maker.
If you are unsuccessful the Court will dismiss your case and may ask you to pay the defendant's costs in defending the action you have brought. You would also be liable to pay your own costs, those of your solicitor if you have one, and those of any witnesses you have called in support of your case. This aspect of your action should be considered very seriously and you may wish to consult a solicitor specifically about this.
Getting help with the costs
Legal representation is not available for this type of case through the Legal Aid Scheme. However, you may be financially eligible under the "Green Form Scheme" and this will provide free legal advice and assistance in the preparation of your case. If your household insurance includes legal assistance you can ask your insurer if they will take the case on your behalf.
If you are going to present your own case, the Clerk of the Court may give you advice and guidance. Alternatively you can contact your local Citizen's Advice Bureau which may be able to offer assistance.
What if the nuisance persists after the Court issues an Abatement Order?
Any person contravening without reasonable excuse the requirements of an Abatement Order served on them is guilty of an offence under the Environmental Protection Act 1990. The Court may fine them up to £5,000 and impose another penalty of up to £500 for each day the statutory nuisance contravenes the Abatement Notice. Further Court action will be necessary to deal with this.
You should continue to keep your record of nuisance up-to-date in case the Abatement Order is being ignored and it proves necessary to return to Court. The procedure for initiating a further case will be the same as for the original proceedings.