What can we learn from the most recent statutory nuisance judgment from the Court of Appeal, and what additional issues does the judgment leave untouched?

The straightforward outcome of the decision of the Court of Appeal in Caerphilly CBC v. R (Williamson) [2026] EWCA Civ 1402 (3 November 2026) is that a “deposit” for the purpose of 79(1)(e), Environmental Protection Act 1990, is not restricted to a something which has been deposited by means of a purposeful or wilful act.

Section 79(1) contains the list of statutory nuisances, and s.79(1)(e) is the statutory nuisance consisting of “any accumulation or deposit which is prejudicial to health or a nuisance”.

The judgment was in the context of the unprepossessing question of fouling by cats, HHJ Jarman KC at trial having borrowed extensively from R v Carrick DC Ex p Shelley [1996] Env LR 273, which concerned the equally unprepossessing theme of “sewage related debris” washed on a to a beach from a South West Water outfall.

In both cases, the court was concerned with s.79(1)(e), and in both, the defendant Council had failed to make a proper inquiry or to reach a decision as to whether a statutory nuisance in fact existed.  In the Caerphilly case, the Council refused to consider s.79(1)(e) altogether, having investigated only whether there was a statutory nuisance under s.79(1)(f) (the place or manner of keeping an animal).

The decision is of more interest, however, for the overall reasoning of the Court of Appeal, and for those further questions which had been raised, but which it did not go on to resolve.

In the Court’s judgment, Miles LJ worked through a variety of authorities put before him which it was argued showed that a deposit had to be deposited by some purposeful or wilful act, but he did not have much difficulty in analysing them to show that the submission failed.  It is not necessary to dwell on these authorities, but most of them were concerned with the issue of responsibility, not with the question whether there a statutory nuisance existed. (The relevance of the issue of responsibility is discussed further below.)

Placing this reasoning in its proper context, the Court analysed the case on the basis explored with such clarity in R v Bristol City Council, ex p. Everett [1999] 1 WLR 1170 (CA), whilst also building on a two-staged approach clearly emphasised in R (on the application of Ball) v Hinckley & Bosworth Borough Council [2025] 1 All ER 1025.

As to Ex p. Everett, Miles LJ reiterated the long statutory ancestry to Part III of the EPA 1990 (Part III dealing with statutory nuisances), namely the Nuisances Removal Act for England 1855, the Public Health Act 1875, and the Public Health Act 1936.  (Since the 1855 Act, these have all been consolidating statutes.)

All of these the Acts are Public Health Acts (or ‘Sanitary  Acts’), which go back to the time of the cholera epidemics of the early 1800s.  By the 1855 Act, Parliament established a system for the establishment of bodies to investigate matters constituting public health risks, requiring the prompt removal of anything likely to be prejudicial to health or a nuisance.

The statutory history is important today because it shows that the meanings to be given to the words appearing in the list of statutory nuisance must be always interpreted to give effect to the aims of the Sanitary Acts, including Part III of the 1990 Act.

As to the case of Ball, Coulson LJ emphasised the importance of the initial investigation process and the identification of a statutory nuisance as part of that process.  See for instance para.33: “The authorities … demonstrate that there are two distinct stages. First, the local authority has to decide whether there is a statutory nuisance. If it does so decide, it is obliged to issue an abatement notice.”

Questions of responsibility and the detailed wording of an abatement notice (and the rest, such as the provision of an appeal) all come later after this first stage as to whether there is a statutory nuisance. This approach emphasises the importance of the Acts as Sanitary Acts: the imperative is to secure the identification of public health threats so that their risks can be abated or mitigated.

The Caerphilly appeal as originally presented by the Appellant, included a submission that cat fouling on a claimant’s land could not constitute a statutory nuisance because, applying common law principles, the fouling could not be a nuisance. It could not be a private nuisance, for instance, because the deposit would have to have a nuisance effect on some other land.

The submission was not made at the appeal.

Since the very first cases decided under the 1855 Act, counsel for responsible parties have been eager to overlay the statutory nuisance regime with common law principles. These submissions gained ground in the latter part of the 20th century, the apogee being National Coal Board v. Thorne [1976] 1 WLR 543.

In Thorne, counsel for the NCB persuaded the Divisional Court that defects in its housing could not constitute a statutory nuisance because there was no private nuisance as understood by the common law: there was no interference with the use or enjoyment of neighbouring property – only with the occupants.

Thorne, and the overlay with the common law, continues to confuse practitioners and judges alike.  It is hardly surprising that in Wivenhoe Port v. Colchester BC [1985] JPL 175, the trial judge is reported to have said: “the court found itself swimming in a sea of uncertainty, unable easily to reconcile what would appear to be the unreconcilable”.

The legislative history of Part III of the 1990 Act, and the emphasis given to the first stage of the process (with its paramount requirement that a statutory nuisance be identified and dealt with), leaves no place for the application of common law principles.  If there is a statutory nuisance, then the person “responsible” (by their act, default or sufferance) needs to be identified and an abatement notice needs to be served. A statutory nuisance and nuisance at common law are distinct concepts.  Private nuisance is a tort about land, not about the removal of threats to public health.

In Caerphilly, the Court of Appeal was only required to consider the ‘straightforward’ issue as to the meaning of s.79(1)(e).  Eventually, however, a Court of Appeal will have to grapple with the problem of common law overlay (as well as the meaning of “nuisance” in s.79(1)).  But, as Miles LJ said during argument, these are thorny issues for another day.

GORDON WIGNALL

Gordon Wignall represented the respondents in both Caerphilly CBC v. R (Williamson) (when he acted for the claimant) and in R (on the application of Ball) v Hinckley & Bosworth Borough Council [2025] 1 All ER 1025 (when he acted for the council).

The full judgment can be found here.

Wiglaw
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