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STATUTORY NUISANCE

Summary of this section

‘Statutory nuisances’ and Part III, Environmental Protection Act 1990 – statutory nuisance legislation can be enforced either by a local authority under s.80, or by a private individual under section 82 – the prescribed categories of statutory nuisance and their limitations – the duties of a local authority (local inspection and service of an abatement notice) – abatement notices (drafting and service) – appealing an abatement notice – costs of an appeal – criminal (and other means of) enforcement – penalties, compensation, costs and appeals – section 82 and private statutory nuisance proceedings by a ‘person aggrieved of a statutory nuisance’ – judicial review and case stated as alternative means of challenging abatement notices

Introduction

The processes available under Part III, Environmental Protection Act 1990 (“EPA 1990”) are intended to provide a relatively speedy and cheap means to secure the prevention or abatement of the effects of certain nuisances arising mainly on land.

The targets of the legislation must fall within any of the prescribed categories of nuisance (although these are subject to some limitations).  Where such a matter is “prejudicial to health or a nuisance” it will be a statutory nuisance” under s.79, EPA 1990.

Statutory nuisances are broadly similar to uses of land which constitute either private or public nuisances, although they are modelled on a version of the common law definition of a public nuisance.  Part III, EPA 1990 also reflects a legislative history of statutory provisions intended to improve sanitary and housing standards.

An abatement notice is at the heart of the procedures available under Part III, EPA 1990 (where enforcement is undertaken by a local authority).  The abatement notice is addressed to the person who is in a position to take steps to bring the problem to an end.  The obligation to serve an abatement notice arises out of s.80, EPA 1990.  There is a right of appeal in respect of the notice, but ultimately a local authority can go on to enforce against the addressee by prosecuting it in the criminal courts if there is a breach of the requirements of the notice.  The process under s.80 can only be initiated by local authorities (at their own expense).

In some circumstances a local authority may have the power to abate the nuisance itself and to recover the expenses from the person responsible.  This is a power which is rarely used.

Section 82, EPA 1990 provides for an even simpler process for the purpose of enforcement if there is a statutory nuisance (as defined by s.79).  The s.82 process is one which is under the direct control of the person affected (i.e. not the local authority).  It does not rely on the use of an abatement notice.  This simpler process (initiated by “persons aggrieved of a statutory nuisance”) can be undertaken with or without the assistance of lawyers (although their fees are recoverable).

Section 82 allows magistrates to make an order of abatement and the magistrates may (or may not) convict the person responsible.

This section of the website will describe the EPA 1990 in outline and identify the prescribed categories of nuisance (including (a) their limitations under the Act and (b) certain additional categories).  It will set out the duties of a local authority, which include the inspection of its local area and the duty to serve an abatement notice.  Provisions as to the contents and service of abatement notices are also considered, as are the various proceedings after service of an abatement notice (including rights of appeal, costs and compensation).

Section 82 will also be addressed, including the requirement to give notice of proceedings, how to obtain the abatement / prohibition order, the offence of breaching an abatement order, compensation and expenses (including legal costs).  Since some readers may wish to initiate their own s.82 proceedings unaided, some guidance is given at the end of this section about relevant court procedures.  As an exception to the usual rule prohibiting the use of conditional fee agreements in criminal cases, it is permissible by s.58A, Courts and Legal Services Act 1990, for a lawyer to represent a client on a CFA (‘no win, no fee’ agreement).

Part III, Environmental Protection Act 1990 in outline

In order to understand the detail on any issue covered by the EPA 1990, it is necessary closely to scrutinise the Parliamentary text for detail (which cannot be covered in full here). Nevertheless, it is possible to provide a good working explanation of the overall scheme of this part of the EPA 1990 and its most important characteristics.

The central notion of Part III of the EPA 1990 is that the acts which can be the target of an abatement notice under s.80 (or alternatively by way of the private s.82 procedure) are those which give rise either to (a) some threat to health or disease or (b) discomfort or serious inconvenience in the use and enjoyment of one’s land and premises (including physical damage).

Because the legislative history of the statutory nuisance provisions is one of public health, they will be interpreted by the courts in this context. They do not exist to protect a person from the risk of personal injury (for instance by reason of a steep staircase), neither can they be used to protect purely property rights (such as the rental value of premises to an absent owner).

The attraction of statutory nuisance proceedings to a complainant under s.80 is that a person can transfer the cost of proceedings to a local authority. This comes at the cost of a loss of control and of the less rigorous processes available in the civil courts for proceedings for private or public nuisance.  These civil court proceedings (as to which, see the sections on private nuisance and public nuisance) can be complex and they are expensive when lawyers are instructed.  Section s.82, EPA 1990 offers an individual with an alternative means of obtaining redress with a similar degree of control as civil court proceedings, and one which should be cheaper when lawyers are used. An advantage of s.82 over civil court proceedings, is that in the civil courts the ‘loser pays’ principle means that a complainant is exposed to costs in the event of failure. Under the s.82 procedure, on the other hand, this principle does not apply. Ordinarily, a complainant should not have to pay the defendant’s costs in the event of failure. By s.58A, Courts and Legal Services Act 1990, a lawyer can enter into a conditional fee agreement with a client (a ‘no win, no fee agreement’).

A significant difference between a nuisance at common law and a statutory nuisance is that in certain critical circumstances within the statutory nuisance regime, the fact that a person is using “best practicable means” means that the recipient of an abatement notice will be exonerated. This gives a significant advantage to a defendant which is not available in private nuisance proceedings, especially to a defendant which is operating “industrial, trade or business premises”.

Provision for best practicable means is made in an interpretation section at s.79(9), EPA 1990, by way of the statutory rules under the Appeals Regulations 1995 (which govern an appeal against an abatement notice) and then by s.80(7),(8) EPA 1990 which provide for the use of “best practicable means” as a defence when it comes to criminal enforcement. Under the section 82 procedure, s.82(9),(10) have the same function as s.80(7),(8). The defence is not available in private nuisance proceedings in the civil courts.

The section 82 procedure (“persons aggrieved of a statutory nuisance”) is dealt with separately below.

What are statutory nuisances: the prescribed categories?

Only those matters prescribed by section 79(1), EPA 1990 are capable of constituting a statutory nuisance. In summary, these areas concern:

  • the state of premises (s.79(1)(a))
  • smoke emitted from premises (s.79(1)(b))
  • fumes or gases emitted from private dwellings (s.79(1)(c))
  • dust, steam, smell or other effluvia arising on industrial, trade or business premises (s.79(1)(d))
  • any accumulation or deposit (s.79(1)(e))
  • the keeping of an animal (s.79(1)(f))
  • insects emanating from industrial, trade or business premises (s.79(1)(fa))
  • artificial light (s.79(1)(fb))
  • noise emitted from premises (s.79(1)(g))
  • noise from a vehicle, machinery or equipment in a street (s.79(1)(ga))
  • a residual category of “any other matter declared by any enactment to be a statutory nuisance” (s.79(1)(h)).

Save for the residual category (as to which see further below), each of the above is subject to the express qualification that to constitute a statutory nuisance it must be shown to be “prejudicial to health or a nuisance”.

In determining whether any of these items has given rise to a “nuisance”, the essential issue, historically, is whether or not there is some risk to health or of a substantial interference with the use and enjoyment of land.

As to the latter, the courts will be heavily led by the principles which have been developed at common law to determine whether or not there is a private nuisance consisting of some ‘intangible interference’.  That is to say that, although actual physical damages may be the subject of statutory nuisance proceedings, these cases are normally concerned with those nuisances which do not give rise to purely property damage.  The relevant principles in the common law context are ones of ‘reciprocity’, or to put it more colloquially, those of ‘give and take, live and let live’.  A nuisance at common law is an ‘unreasonable interference with the use and enjoyment of land’, and a neighbour is expected to tolerate the equivalent of the moderate inconveniences which he/she might inflict on his/her fellow neighbour.

At common law, a nuisance is characteristically brought about by a state of affairs, with the result that a merely temporary inconvenience is unlikely to constitute a nuisance. Having said that, whether something is a nuisance is a fact-sensitive question and the answer will depend on all the circumstances. It has been said that when it comes to the enjoyment of sleep, a single trumpet blast may amount to a nuisance.

Whether any of these matters is ‘prejudicial to health’ (rather than a nuisance) is a fact-sensitive question, and the principles relevant in public nuisance cases should also be considered.

Limitations on the categories of statutory nuisance

There are additional limitations placed by Parliament on a number of these categories of statutory nuisance.

By virtue of the further provisions of s.79, EPA 1990 (see s.79(1A)-(6A)), the following, in summary, cannot amount to a statutory nuisance, namely:

  • land which is in a contaminated or polluted state
  • smoke from premises used by the military, or where there is some other regulatory regime in place
  • artificial light from premises used by the military and transport facilities, goods vehicle operating facilities, lighthouses and prisons
  • noise emitted from premises used by the military and from aircraft (other than model aircraft)
  • noise from traffic, the military or demonstrations

These limitations are subject to certain additional qualifications and definitions which are not set out here, so that the detail in the legislation should not be short-circuited.

The additional (residual) categories of statutory nuisances

Section 79(1)(h) of the categories of statutory nuisance renders “any other matter declared by any enactment to be a statutory nuisance”. These include:

  • insanitary cisterns and other aspects of a domestic water supply
  • foul ponds, pools, ditches, gutters and watercourses
  • silted-up watercourses
  • tents, vans, sheds and similar structures used for human habitation
  • quarries which pose certain risks to the public
  • certain aspects of disused mines which pose risks to the public.

These residual categories derive primarily from the Public Health Act 1936.

The primary duties of a local authority – inspection and service of an abatement notice

A duty to investigate

Section 79(1), EPA 1990 places a duty on a local authority to “cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with …” and, where a complaint is made to it “to take such steps as are reasonably practicable to investigate the complaint”.

A duty to serve an abatement notice

By s.80(1) the local authority is also under a duty to serve an abatement notice where it is “satisfied that a statutory nuisance exists, or is likely to occur or recur, in [its] area”.  Local authorities have been known to refuse to serve an abatement notice when forming a judgment that the undertaking would be able to show that it has used ‘best practicable means’, but this may not be a correct approach to the legislation.

The duty to serve an abatement notice is central to the statutory nuisance scheme. The legislation makes provision both for the contents of abatement notices and the service of these notices. Special provisions concern service of the notice.

The contents of abatement notices (their wording and requirements)

The wording of abatement notices has given rise to a great deal of litigation, and it will always be a key target for defendants on whom an abatement notice is served.

The principle reason for this is the wording of the statutory requirement under s.80(1) that an abatement notice may impose “all or any of the following requirements – (a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence; (b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes”.

It has been said that this wording is not as clear as it might be. It can suggest to the reader, at first blush, that since some steps are likely inevitably to be necessary in order to abate a nuisance, then they have to be identified (even though it may be enough simply to demand that the effects of the nuisance should not recur).  But this is not the case.  It is only if there is something specific which needs to be done, without which there would still be a nuisance, that the works should be specified by s.80(1)(b).

It is quite enough, therefore, simply to require that the nuisance (or the risk of a nuisance) should come to an end.  In those circumstances, no works should be specified in the abatement notice. (See 80(1)(a).)  On the other hand, particular works may be necessary in order to bring the nuisance (or the risk of a nuisance) to an end.  If that is the case, then those works must be specified with sufficient precision. (See 80(1)(b).)

Local authorities (and sometimes the courts) are inclined to forget that there are two distinct limbs as to what can be required by way of an abatement notice.  They are broadly equivalent to the contents of prohibitory injunctions and mandatory injunctions at common law. They should not be confused with one another.  In particular, local authorities should not think that just because some works may be needed to bring a nuisance to an end, then they are the ones to decide what those works may be.  It is a judgment-call which is best left to the undertaking on which a notice is served.

An appropriate approach is for a local authority to focus on the outcome. If the outcome can be achieved by a range of options, then the choice of any steps is best left to the recipient of the notice. It is much easier to prosecute, for instance, for the recurrence of a nuisance (such as the recurrence of odours, noise, dust, etc.), than it is to prosecute because specific steps have not been observed.

Two particular matters relevant to the drafting of abatement notices are worth mentioning here.

First, a notice should not bring about a state of confusion as to which of the two limbs of s.80(1) is being utilised. This in itself may give rise to litigation.  It is possible to rely on both limbs in the same notice, but if this is the right approach, then the notice needs to be drafted with great care.

Secondly, a common area of litigation arises when the undertaking on which a notice is served complains that the terms of the abatement notice are insufficiently precise.  This is not only where a local authority has failed to apply s.80(1)(b) with sufficient clarity.  The same argument also applies where vague and uncertain words are added to any part of an abatement notice.  Particularly poor examples of such abatement notices are those which contain wording such as the following: “… take the steps necessary …” or “… take all reasonable steps …” or “… take any steps as may be necessary for that purpose”.  These should be avoided.  Too often an abatement notice is at risk of being found defective when it comes to enforcement by a criminal prosecution because it is insufficiently clear as to what is demanded of the recipient.

As suggested above in the preceding paragraphs, confusion is likely to occur when a local authority has decided that both abatement (the requirement to take positive steps) and also the prohibition of a recurrence of a nuisance, are required in the same notice. In a significant number of such cases no detail at all should in fact be required because it is generally better to leave the choice of the means of abatement to the recipient

Although the Courts have frequently said that abatement notices should be read with a healthy degree of common sense (relying also on the contents of any accompanying letter), the cases which have been decided and published are difficult and sometimes contradictory. The most detailed attempt to reconcile them is probably Ex p. South West Water Ltd (2001). But for clarity, see Elvington Park Ltd (2010) and Camden LBC (2000).

Service of the notice

The abatement notice is required (by s.80(2) EPA 1990) to be served on the person responsible for the nuisance, which in the case of a nuisance arising from the structural character of premises, is considered to be the owner. If the person responsible cannot be found, or if the nuisance has not yet occurred, then the notice should be served on the owner or occupier of the premises.

As with any other nuisance where there is a corporate structure in play, the local authority must come to a reasoned conclusion whether the person responsible is a company or other body corporate, or whether in fact it is a particular individual or individuals.

Section 160, EPA 1990 also applies in the case of service. An abatement notice may be served either by leaving it at the recipient’s address or by sending it by post to his/her address. In the case of a body corporate, then s.160 allows the notice to be served on the secretary or clerk of the entity. By s.7, Interpretation Act 1978, the correct address will be the recipient’s last known address.

Whether or not an abatement notice has been properly served has important consequences when it comes to a recipient’s right of appeal against the abatement notice. The time-limit is strict: 21 days from the date of receipt. If the nuisance has been caused by a company and the notice has been sent to the company’s registered address, experience shows that too often the company is unaware that the notice has been received at all.

Appeal against the abatement notice

A person on whom an abatement notice is served may appeal to magistrates. There are alternative routes of appeal and it is sensible to consider the competing merits of each, although an appeal to the magistrates is likely to be the most appropriate, especially where there are factual issues to resolve, or where the recipient of the notice intends to exonerate itself on the basis that it has used “best practicable means” to avoid a nuisance or to counteract its effects.

The framework provisions which govern the right of appeal to a magistrates’ court are contained in s.80(3), EPA 1990, in Schedule 3, EPA 1990, and also in the Statutory Nuisance Appeals Regulations 1995 (s.i. 1995/1994) (“the Appeals Regulations”).

As to the right of appeal itself, s.80(3), EPA 1990 specifies that the right of appeal must be exercised strictly within 21 days of service of the notice. It also prescribes the grounds of appeal.

The supplementary provisions contained in Sch.3, EPA 1990 require the appeal to be initiated by way of a “complaint”, which invokes the civil (rather than the criminal) jurisdiction of the magistrates (see s.51, Magistrates’ Courts Act 1981). No formality is required (although there is a prescribed form and there has been a substantial amount of litigation arising out of the use of the wrong form). After the complaint is received by the magistrates, the court will start the appeal process by issuing a summons to court.

An appellant should understand that by reason of para.3 of the Appeals Regulations 1995 and, save in very limited circumstances, the requirements of an abatement notice are not suspended pending the final hearing of an appeal.

An abatement notice is only suspended if (i) some expenditure would be required prior to final determination in order to comply with the notice or (ii) the notice is in respect of noise, but the noise in question is “necessarily caused in the course of the performance of some duty imposed by law”.

Even if these grounds apply, then the Appeals Regulations 1995 allow the local authority to override the suspension of a notice in prescribed circumstances, for instance where the nuisance is injurious to health or it it likely only to last for a very short time.

In certain circumstances it may be possible to raise a challenge by way of judicial review or case stated.  See the last section below (“alternative routes of appeal”).

The grounds of appeal against an abatement notice

The grounds on which an appeal can be brought before the magistrates are wide and they too are contained in the Appeals Regulations 1995 (see reg.2). The most significant are as follows (they are subject to a number of refinements evident only from close consideration of the legislation) that:

  • the abatement notice is not justified (reg.2(2)(a))
  • there has been some “informality, defect or error” in connection with the notice (but note that if the informality, defect or error is immaterial, then the appeal must be dismissed) (reg.2(2)(b))
  • the local authority has unreasonably refused to accept compliance with alternative requirements, or the terms of the abatement notice are themselves unreasonable (reg.2(2)(c))
  • the time for compliance is insufficient (reg.2(2)(d))
  • the best practicable means were used either to prevent or to counteract the effects of the nuisance (reg.2(2)(e))
  • in relation to noise, where there are alternative controls under the Control of Pollution Act 1974 (dealing with construction works), then the statutory nuisance controls are excessive (reg.2(2)(f))
  • the abatement notice was served on the wrong person and should have been served on someone else (reg.2(2)(h))
  • it would have been equitable to have served the notice either on some other person or on someone in addition (those classes of persons being specified) (reg.2(2)(i)).

Subject to the question whether some alternative route of appeal should be started rather than an appeal to the magistrates (such as an application for judicial review), it is important that an appeal is instigated. This is because Parliament designed the legislation so that, when it comes to enforcement by criminal proceedings, those matters which could have been raised on an appeal are not intended to be arguable by way of a defence.

Importantly, if the recipient’s position is that there has been no nuisance at all (or no risk of a nuisance), then this must be pursued by way of an appeal on the ground that the abatement notice was not justified. The offence, after all, is in essence one of non-compliance with the terms of the abatement notice, not with causing a nuisance.

As to “best practicable means”, this ground of appeal is available only in respect of certain categories of statutory nuisance, and, for the most part, it is available only where the specified nuisance took place on industrial, trade or business premises (see reg.2(2)(e)). Significantly, however, it cannot apply at all in the case of smoke, fumes or gases which arise on industrial, trade or business premises.

It is particularly important that an appeal to the magistrates is instigated where the recipient of the nuisance believes that it has used best practicable means to prevent or counteract the effects of the nuisance. On enforcement by way of criminal proceedings it is a defence under s.80(7) to show that best practicable means were used to prevent or to counteract the effects of the nuisance.  However, for the most part, this defence is made unavailable by reason of s.80(8) if it would have been possible to appeal against the abatement notice on this ground and thereby to avoid prosecution. Some guidance as to what is meant by “best practicable means” is given by the interpretation provision at s.79(9), EPA 1990.

It is possible for an appellant to amend its grounds of appeal. It may also be possible for a local authority either to amend or withdraw the abatement notice.

The tribunal hearing an appeal has the option of quashing the notice, varying it (but only in favour of the appellant) or of dismissing it. It then becomes “final and shall otherwise have effect, as so varied”. It can also apportion the costs of any works to be undertaken where the final notice requires more than one recipient to undertake works.

Schedule 3 to the EPA 1990 allows an aggrieved appellant a further right of appeal to the Crown Court if it is not satisfied by the outcome of the first tier appeal to the magistrates. An appeal to the Crown Court should be the appeal route of preference (although alternative routes of challenge are also available).

After any appeal, the parties to the appeal are likely to have in sight the question as to who should pay the costs of the proceedings. Different rules are applicable in the case of costs after an appeal to the magistrates court and in the case of costs after an appeal to the Crown Court (see further below).

Costs after an appeal to the magistrates’ court

At the end of an appeal to the magistrates’ court, the magistrates have a wide (but not comprehensive) discretion as to costs. In particular, the magistrates can make an order for costs under s.64, Magistrates Court Act 1980 when it is just and reasonable to do so. Section 52, Courts Act 1971 is available where the case is not proceeded with.

Costs will not necessarily follow the event, and indeed, so long as the local authority has behaved honestly, reasonably and properly, then costs orders against the local authority are discouraged, since there should not be a ‘chilling effect’ on the proper enforcement by local authorities of their regulatory powers. The prejudicial effect on a successful appellant, however, should also be considered. See City of Bradford MBC (2000) and R (Perinpanathan) (2010).

Costs after an appeal to the Crown Court

At the conclusion of an appeal to the Crown Court, there is a wide discretion as to the orders which it can make as to costs. Notably, s.48, Senior Courts Act 1981 allows the Court to make such order as to costs as it thinks just, and by r.12(2), Crown Court Rules 1982, the Crown Court can also exercise the powers which were available under s.64, Magistrates Courts Act 1980 in order to dispose of the costs before the appeal in the magistrates court.

Enforcement by criminal proceedings

A local authority has various means at its disposal to secure compliance with the contents of an abatement notice. These include the abatement of the nuisance (whether or not criminal proceedings are also instigated) together with the recovery of expenses. (See s.81(3),(4), EPA 1990.)  They also include proceedings in the High Court for an injunction if a conviction would afford an inadequate remedy.  (See s.81(5).

The conventional way to ensure compliance, however, is by means of a criminal prosecution, the penalties for which are considerable.

Section 80(4), EPA 1990 makes it a criminal offence for a person on whom an abatement notice has been served “without reasonable excuse” to contravene or fail to comply with any requirement or prohibition imposed by the notice.  Prosecution can only be in the magistrates’ court.

There is very little guidance as to what is meant by “reasonable excuse”. Where there is a statutory ground of appeal which encompasses the facts relied on by a defendant, then these facts are unlikely to be able to form a “reasonable excuse”. It has been said that where there has been a contravention which is attributable to an emergency or to some circumstances beyond the defendant’s control, then there is an available defence which it is for the prosecution to disprove.

It is a defence to prove (on the balance of probability) that best practicable means were used to prevent or to counteract the effects of the nuisance (s.80(7)). However, caution is needed, since if this defence could have been taken on an appeal against the abatement notice, it is not available. Another exception is in relation to smoke from a chimney on any premises. The best practicable means defence is also unavailable in respect of fumes or gases emitted from premises and also in respect of the residual category of statutory nuisances. As to these two categories of statutory nuisance, it is not possible to appeal against the contents of an abatement notice.  See s.80(8), EPA 1990 in order to ascertain the availability of the defence, when read together with the provisions as to appeals against an enforcement notice. There are other defences to be aware of, for instance those at apply in the case of sports facilities (s.80(8A),(8B)) and in the case of construction noise (s.80(9)).

Whilst this is not intended to be a place for the discussion of detailed rules governing criminal proceedings, some key guidance as to is appropriate.

Since a contravention of an abatement notice is a summary-only offence, an information must be laid not more than six months after the offence alleged (r.7.2(5), Criminal Procedure Rules 2015). Once the information has been laid a summons will be issued (r.7.3-4).

A local authority has a discretion whether or not to prosecute, a discretion which must be exercised in accordance with its stated policies. These are likely to reflect other published policies, in particular the Attorney General’s Guidelines and the Code for Crown Prosecutors issued by the Director of Public Prosecutions. A decision to take criminal proceedings must satisfy both an evidential and public interest test. A challenge to the decision can be taken before magistrates, although it should be very rarely that such a challenge succeeds. See R (Barons Pub Co. Ltd) (2013).

A defendant will receive initial details of the prosecution case under CPR Part 8. Disclosure will be made in accordance with the Attorney General’s Guidelines on Disclosure. Rules as to any expert evidence need to be observed as required by Part 19.

At the conclusion of enforcement proceedings, there are various issues to consider apart from the appropriate fine.  These include compensation, costs and appeals.  See below.

Orders following a criminal conviction – penalties, compensation, costs and appeals

On conviction, s.80(5), EPA 1990 renders a defendant liable to pay a fine “not exceeding level 5”. As of September 2020, that amounts to a cap of £5,000. However, a further fine may be levied for up to one-tenth of that amount per day whilst the offence continues.

Where the offence takes place on industrial, trade or business premises, then by s.80(6), the amount of the fine is unlimited.

The criminal courts have a wide power, on conviction, to award compensation. This is by virtue of s.13, the Powers of Criminal Courts (Sentencing) Act 2000. They can make compensation orders as a result of any form of damage, including distress and anxiety. The principles set out in the sentencing guidelines make provision for the assessment of compensation as part of the sentencing exercise.

In the case of costs, s.16, Prosecution of Offences Act 1985 empowers courts to make a defendant’s costs order in any criminal proceedings. These costs are paid by the state and not by the local authority (out of “central funds”).  See the Practice Direction (Costs in Criminal Proceedings) (2015, as amended). In practice the costs recoverable are seriously limited, whether in respect of who can recover costs, the basis for recovery and the amounts. The most important limitation is the fact that by s.16A of the 1985 Act, only an individual is likely to be able to recover his or her legal costs. The state does not expect to have to pick up the legal costs of a corporate entity.

Section 18, Prosecution of Offences Act 1985, enables a criminal court to make an order for costs in favour of the prosecution against a defendant in the magistrates’ court or an appellant in the Crown Court. The costs must be “just and reasonable”. See also the Practice Direction (Costs in Criminal Proceedings) (2015 as amended).

The effect of s.19, Prosecution of Offences Act 1985 and reg.3, Costs in Criminal Cases (General) Regulation 1986 is that it may be possible to recover wasted costs as a result of some “unnecessary or improper act or omission”.

Costs may also be recoverable against legal representatives by reason of s.19A, Prosecution of Offences Act 1985 and reg.3A-D, Costs in Criminal Cases (General) Regulation 1986. They may be recoverable by reason of s.19A, Prosecution of Offences Act 1985 and reg.3F, Costs in Criminal Cases (General) Regulation 1986 against third parties where there has been some serious misconduct.

A person who is aggrieved either by being convicted by the magistrates or by the degree of punishment, has a right of appeal to the Crown Court.  (See s.108, Magistrates Courts Act, Part 34, Criminal Procedure Rules.)  The time limit is 21 days, which begins to run after the date of sentence.  This is the appropriate form of appeal where there is a factual issue to contest since such an appeal is by way of a rehearing.

An alternative right of appeal exists on a point of law by way of case stated by virtue of s.111-114, Magistrates’ Courts Act 1980.  (See also Part 35, Crijminal Procedure Rules and Part 52, Civil Procedure Rules.)  There is a time limit of 21 days from the date of sentence or other order, during which period the magistrates must be asked to state a case. This appeal avenue is available both to the defendant and to the local authority.

Exceptionally, the defendant or the localn authority may be able to apply to the High Court by way of an application for judicial review.  This will usually be where there has been some defect in the overall procedure.

Section 82 of the EPA 1990 – persons aggrieved of a statutory nuisance

Section 82, EPA 1990 provides for summary proceedings to be taken by persons aggrieved of a statutory nuisance. Under this procedure, the categories of statutory nuisance are the same as for the procedures instigated and managed by local authorities under s.80.

The aim of the complainant under this procedure will be directly to obtain an abatement order, the making of which is the gateway to obtaining relief from the nuisance and which is likely to result, at the same time, in the conviction of the person responsible (the defendant). Section 82 has been a key piece of legislation over the years which has enabled aggrieved tenants to obtain redress for poor housing conditions. It is eminently usable in all classes of statutory nuisance.

Importantly, there is no requirement within the context of the s.82 procedure for the complainant to have to draft and serve an abatement notice on the prospective defendant, with all the complexities which that involves.

Where a person is aggrieved by the existence of a statutory nuisance, then that person begins this statutory nuisance process by making a “complaint” directly to the local magistrates court as specified by s.82(1), EPA 1990.

This is not the same process as that which applies in an appeal against an abatement notice served by a local authority. A “complaint” is ordinarily a term of art within the civil jurisdiction of the magistrates (as in an appeal against an abatement notice), but s.82 proceedings are in fact criminal in nature.

The “complaint” in the context of s.82(1) is the laying of an information in order to secure the attendance of the defendant, who is facing a criminal allegation.

Section 82(6),(7), however, requires that before issuing its complaint, it must ensure that the prospective defendant has been warned (in writing) that the complainant intends to make its complaint to the magistrates. In the case of a noise nuisance not less than three days’ warning must be given. In the case of any other nuisance, at least 21 days warning must be provided. This will give the recipient of the notice the opportunity to deal with the nuisance and to make sure that it is not likely to recur.

If the complainant succeeds before the magistrates (to the criminal standard of proof), then they have the power to make an abatement order. By s.82(2), EPA 1990, the abatement order will either require the defendant to abate the nuisance by a specified time, or prohibit a recurrence of the nuisance. The magistrates will make the abatement order if they are satisfied that either (i) a nuisance exists, or (ii) it existed at the time of the complaint and has been abated, but that it is nevertheless likely to recur. In either case the magistrates may order the defendant to execute any works which may be required.

At the same time as the making of the order, the magistrates may also impose a fine on the defendant, a fine equivalent to that which may be imposed in the case of the consequential orders following a criminal conviction under s.80.

By s.82(4), EPA 1990 (and in similar terms to those which apply to a local authority which has issued an abatement notice under s.80) provision is made as to the identity of the person(s) who can be the defendant to proceedings for an abatement order (with special provision as to a defendant in the case of noise from a vehicle, machinery or equipment in a street).

A very important provision is s.82(12), EPA 1990 which concerns a complainant’s expenses. So long as the complainant can show that as of the date of the making of the complaint there was in fact a nuisance, then the magistrates can require the defendant to pay to the complainant “such amount … as the court considers reasonably sufficient to compensate him for any expenses properly incurred in the proceedings”. This is so even if the Court does not make an abatement order. The amount of such compensation can include legal costs of making the complaint and applying for the abatement order.

As in the case of statutory nuisance proceedings instituted by a local authority (which provide for enforcement by criminal proceedings, should the recipient of an abatement notice not comply with its terms), s.82(8), EPA 1990 renders it an additional criminal offence should a person on whom an abatement order has been served, “without reasonable excuse”, contravene any requirement or prohibition imposed by the order.

So too (as with enforcement by criminal proceedings of an abatement notice under s.80, EPA 1990), it can be a defence to be able to show that the best practicable means were used to prevent, or counteract the effects of a nuisance. The extent of the defence of “best practicable means” is broadly similar to that of enforcement by criminal proceedings, save that there are some modest differences.  The defence is not available in the case of a nuisance which is such as to render the premises unfit for human habitation.

In certain circumstances, the magistrates have power to direct the local authority to do anything which the defendant should have done, but did not do. Thus, on conviction for breach of an abatement order, by s.82(11), the local authority can be directed to do what the abatement order required the defendant to do. So too, by s.82(13), where neither the person responsible for a nuisance nor the owner of premises can be found, then the local authority can be required to do whatever the person responsible or the premises-owner might have been required to do. On the making of an abatement order, by s.82(3), the magistrates can prohibit the use of the premises for human habitation until they are made fit for that purpose.

As to provisions for compensation and costs (outside s.82(12), EPA 1990), it is necessary to look to the provisions applying in the case of orders following a criminal conviction under s.80, EPA 1990.

Alternative routes of appeal: a footnote

Rather than an appeal against the abatement notice to the magistrates court, it is possible to seek a judicial review of the decision to issue the abatement notice or of a decision to commence enforcement by way of criminal proceedings.  (But these are issues which should probably be taken at the commencement of the hearing of a prosecution hearing.) See Part 54, Civil Procedure Rules. Such a challenge would be likely to have prospects of success only in rare cases.

After the conclusion of magistrates courts proceedings, either on an appeal against the abatement notice or the conclusion of enforcement by way of criminal proceedings under s.80 or s.82, it is possible to commence an appeal to the High Court by case stated. After the conclusion of Crown Court proceedings (either on an appeal against the abatement notice or the conclusion of an appeal in respect of enforcement by way of criminal proceedings), is also possible to commence an appeal to the High Court by case stated.

The case stated procedure is against a point of law. See s.111, Magistrates Courts Act 1980, s.28, Senior Courts Act 1981 and Part 35, Criminal Procedure Rules 2015. If the magistrates court or the Crown Court refuses to state a case, then it would be necessary to commence judicial review proceedings of that decision. (See Part 54, Civil Procedure Rules.)

In some rare cases a judicial review may be available in respect of the decisions made either in the magistrates court or the Crown Court. (See Part 54, Civil Procedure Rules.)

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