The local authority (eg an environmental health officer) is responsible for deciding whether or not a statutory nuisance is occurring or is likely to occur. This will involve looking at whether the matters complained of are a nuisance or are/are likely to be damaging to health. In making the decision, the environmental health officer will balance a number of factors, such as the:
- nature and location of the nuisance.
- time at which the nuisance occurred and its duration.
- the utility of the activity concerned.
If the local authority is satisfied that a nuisance exists, it must issue an abatement notice against the person responsible.
The abatement notice must require:
- that the nuisance to be prohibited or its occurrence/recurrence restricted and/or
- works or other steps to be carried out to comply with the notice.
It will also set out a time limit for compliance with the notice.
Failure to comply with an abatement notice
Failure to comply with an abatement notice without reasonable excuse is a criminal offence. The maximum penalty for breaching an abatement notice is a £20,000 fine for industrial, trade or business premises and a £5,000 fine and £500 daily penalty for other premises. If a complaint was initially made by an individual to a local authority, then the court has the power to award compensation to the person concerned.
In Scotland, failure to comply with the terms of an abatement notice (without reasonable excuse) may result in persecution in the Sheriff Court. On conviction, a person may be liable for a fine not exceeding level five on the standard scale (currently £5,000) in addition to a daily fine of an amount equal to one tenth of that level (ie. £500) for each day on which the offence (non-compliance with the abatement notice) continued after conviction.
Where the conviction is for breach of an abatement notice for an offence on industrial, trade or business premises, the maximum fine on summary conviction is £40,000.
Where an abatement notice relates to activities carried on at a trade or business premises, it is a defence in some circumstances to show that the best practicable means (BPM) have been used to prevent or counteract the nuisance. BPM involves having regard to local conditions and circumstances, the current state of technical knowledge, and financial implications.
There are also specific defences for complaints of noise and nuisance on construction sites and in areas where there are registered noise levels.
In Scotland, this defence is also available. However, unless the nuisance in question arises on industrial, trade or business premises, it does not apply to the following:
where the physical state of the premises is prejudicial to health or a nuisance.
where dust, steam, smell, etc on industrial, trade or business premises are prejudicial to health or a nuisance.
any accumulation or deposit which is prejudicial to health or a nuisance.
any animal kept in such a place or manner as to be prejudicial to health or a nuisance.
any insects emanating from relevant industrial, trade or business premises and being prejudicial to health or a nuisance.
any noise emitted from premises so as to be prejudicial to health or a nuisance.