Advance warning of statutory nuisance claims

Part III of the Environmental Protection Act 1990 consolidated the previous law concerning statutory nuisances, and introduced a number of significant changes. Among these was a requirement that a member of the public intending to initiate nuisance proceedings in a magistrates court should give advance warning to the other side in order to give them a chance to remedy the situation. In a recent decision, the High Court has considered these provisions for the first time, and held that they should not be overloaded with undue technical requirements.

East Staffordshire Borough Council v Fairless (High Court, 14 October 1998) concerned premises let to Mr Fairless by the council. The tenant alleged that defects in the premises amounted to a statutory nuisance under the 1990 Act.

Under section 82 of the Act, any person "aggrieved by the existence of a statutory nuisance" may seek an order from a magistrates court to secure its abatement by laying an information, a comparatively inexpensive and simple procedure. This had been done in May 1997, and by the time the proceedings came before the court the council had carried out remedial work to abate the nuisance, but an order for costs was made against it.

The council queried the tenant's entitlement to costs on the grounds that the advance warning letter had not contained sufficient details of the nature of the nuisance, and was therefore invalid.

The provisions concerning advance notice, contained in section 82(6) and (7), were inserted at a late stage during Parliamentary procedures, and followed criticism by the House of Lords in the Sandwell Metropolitan Borough Council case (ENDS Report 191, p 38). The Lords noted that the then existing procedures under the Public Health Act 1936 did not require any advance warning before proceedings were commenced in the magistrates court, and were strongly critical of anyone who did not at least give an authority the chance to remedy the problems complained of without the need for court intervention. The provisions in the 1990 Act require three days' notice in the case of noise nuisances, and 21 days' notice for other types of statutory nuisance.

In the present case, the tenant had indeed given the advance warning within the time limits, enclosing a surveyor's report listing defects in the premises. The report, however, was stated not to be exhaustive, and the council therefore argued that since it did not know precisely what was to be rectified, the advance notice was defective and the tenant not entitled to costs.

In the High Court, Mr Justice Sullivan noted that there was no prescribed form for the advance notice. In the words of the Act, it had to "specify the matter complained of", though not the works needed to abate the nuisance.

According to the court, "it was important that ordinary members of the public who might not have any legal expertise, such as tenants, were not deterred from pursuing complaints which were well founded on the merits by over-technical requirements." The fact that the letter accompanying the surveyor's report stated that it was not an exhaustive list of defects was not fatal to the notice, and it would be unfortunate if courts were deprived of making nuisance orders or orders as to costs because of "technical defects" in the advance warning.

The court recognised that the position was different where local authorities were exercising their own enforcement powers under the Act, where rather different procedures apply. Under section 80, the local authority first serves an abatement notice directly on the person responsible, or in some cases on the owner or occupier of the premises concerned. Failure to comply with the notice without reasonable excuse is a criminal offence.

Again, there is no prescribed form of notice, and local authorities are not obliged to specify or require the execution of abatement works within the notice - they may simply require the nuisance to be abated or prevented - but if they do so the courts have held on a number of occasions that they must provide a reasonable level of detail. In the East Staffordshire case, Mr Justice Sullivan justified the greater level of detail needed in such cases because of the possibility of committing a criminal offence for non-compliance, and the fact that local authorities have greater access to legal and technical resources.

Statutory nuisances encompass a wide range of public health and environmental problems, and the notice procedure offers members of the public a fairly speedy and inexpensive remedy - certainly in comparison with civil actions in nuisance which are best reserved for cases where substantial compensatory damages are sought.

In practice, many of the cases initiated by aggrieved members of the public are taken against a local authority rather than a neighbour or other private individual. The East Staffordshire decision accords with the spirit of the procedures. But the advance warning, if it is to provide an opportunity of abatement without going to court, clearly cannot be too vague about the details of alleged nuisance.

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