A ‘person aggrieved’ by a statutory nuisance has a private remedy against someone who is perpetrating a statutory nuisance. This procedure can be used where a local council refuses to issue an abatement notice and it will not change its mind, or where the complainant wants to be in control without leaving matters to the council – including the case of proceedings which need to be taken against the council itself. The procedure is set out in section 82, Environmental Protection Act 1990. Whilst it is intended to be a swift and simple process, regrettably, it is not particularly straightforward. See How do I begin section ‘82’ proceedings?, below.

First of all, the complainant must be satisfied that the problem falls within one of the statutory nuisances listed in section 79(1), Environmental Protection Act 1990 (“EPA 1990”), such as the state of premises or noise..  Eleven are listed (from (a) to (h)), and it is best to check the definitions and qualifications which follow in the rest of section 79 (i.e. in s.79(1A) through to s.79(12)).  “Premises”, for instance, “includes land”, and there are further qualifications relating to “harbour premises” and “railway premises”.

Secondly, before commencing proceedings in court, it is obligatory to give written notice to the defendant.  See s.82(6) and (7), EPA 1990.  A minimum of three days’ notice is required in the case of noise, and 21 days’ in the case of other statutory nuisances.

Thirdly, section 82(1), EPA 1990 says that a ‘complaint’ must be made in order to instigate proceedings.  Caution is needed.  In the context of the Magistrates Courts Rules, a ‘complaint’ normally requires the use of a particular form which commences civil proceedings.  But the judges in the case of Botross v. Hammersmith & Fulham LBC decided that s.82 proceedings are criminal in nature, so that a complainant must in fact “lay an information” in order to obtain a summons (see section 1, Magistrates’ Courts’ Act 1980).  See further How do I get a summons issued?, below.

In order to get a summons issued to secure the attendance of the defendant at court, the Criminal Procedure Rules apply.  See Starting a Prosecution in a Magistrates’ Court, which at the time of writing, is contained in Part 7 of the Rules. 

Rule 7.2 of the Rules is the starting-point, a written application being required on the prescribed form, which is an ‘application for summons’.  The application form contains the key information required to be included for the purposes of Rule 7.

Note that the application must be “made in time” (under rule 7.2(3)(b)(i) of the Criminal Procedure Rules), and it must be served on the court (“the court officer”) as required by rule 7.2(2)(a).

As to the time limit, rule 7(10)(a) applies.  The application for the issue of the summons must be made not more the six months after the commission of the statutory nuisance.  In the case of a continuing offence, or where it is said that the nuisance is likely to recur, the time limit is unlikely to be relevant.  (See section 82(2), Environmental Protection Act 1990.)

Service of the application is governed by the Criminal Procedure Rules under that Part headed “Service of Documents”, currently Part 4: the rules must be observed. Service includes service by hand, by post or electronically.

Once the application is received at court, it will be considered by a court clerk or a magistrate.  That decision-maker must “exercise a judicial discretion” whether or not to issue the summons.  In the overwhelming majority of cases the summons will be issued and the defendant will be required to attend court on a given date, this being the first appearance.

When a summons has been issued by the Magistrates’ Court, it will require the defendant to appear on a specific date. 

On or by that date the prosecution should have served “initial details of the prosecution case” on the defendant in accordance with the Criminal Procedure Rules, being Part 8 at the time of writing.  See Initial Details of the Prosecution Case.

The court is likely to set out a timetable for the future management of the case using the court’s case management powers under r.3.5 of the Criminal Procedure Rules, but the timetable is likely to be quite short and it is not likely to include the full complexities set out in the Criminal Procedure Rules themselves.  The timetable should run all the way to trial, and a complainant (the prosecutor) should make sure that ‘dates to avoid’ are to hand to make sure that a trial date can be fixed.

Although proceedings under s.82, Environmental Protection Act 1990 are deemed to be criminal, it is quite normal for the parties to agree not to comply with the full rigour of the rules, since this presents complexities which both sides can do without, such as the application of the rules about hearsay evidence.  One issue relevant to criminal proceedings which the parties should be ready to comply with are those about expert evidence.

See further below under Section 82 and Expert Evidence and Section 82 and the Criminal Procedure Rules.

It is quite often necessary to have to use an expert in statutory nuisance proceedings, including in a claim by a ‘person aggrieved’.

For instance, although a claim about excessive noise can be proved without the use of an expert, an expert can be useful to obtain and interpret acoustic information by reference to standards understood by fellow professionals.  Expert evidence of this nature generally supports (but does not replace) the main evidence of a complainant and any additional non-expert witnesses.

Where an expert is to be instructed, it is important to comply with the Criminal Court Rules about Expert Evidence, which at the time of writing, are contained in Part 19 of the Rules.  The contents of the Criminal Practice Directions are also important, the 2023 edition being the Directions which are current at the time of writing.  See in particular Part 7.

An expert should be independent of the party who provides the instructions.  Written instructions to the expert should be consistent with the expert’s independent duty to the court, and should provide the expert with exculpatory, as well as with inculpatory, material.  The written instructions may be disclosed to the court, so that it is important that they do not seek to direct the expert towards a particular conclusion.

Paragraph 7.2.1 of the Criminal Practice Directions is particularly important, which contains the appropriate declaration of truth to be used by the expert, who should also make it clear to what extent he/she is bound by the code of conduct of a particular professional organisation. It is surprising that the correct form of the declaration is unknown to many experts, so that they need to be directed to it before drafting a report.

An important part of the expert process is a pre-hearing discussion, which is likely to be directed by the court.  See rule 19.6 of the Criminal Procedure Rules and paragraph 7.3 of the Criminal Practice Direction.  This discussion should be built in to the timetable at the first hearing.  The party instructing an expert can suggest an agenda to the expert, but must not be engaged in the discussion or in the preparation or conclusion of the joint document from the experts, which should record the points on which they are agreed and disagreed.

Section 82, Environmental Protection Act allows a complainant to recover the “fair and reasonable” costs incurred in commencing statutory nuisance proceedings.  These are the costs which the magistrate considers are those which are “reasonably sufficient”.  The magistrate can order the defendant to pay them even if the nuisance no longer exists as of the date of the hearing. The trigger for an order for costs is the question whether the complainant can prove that the nuisance existed as of the date of the instigation of proceedings