Smell as a Statutory Nuisance

Recently Kentonline ran a story about a ‘Gut Wrenching Smell’ which was ‘driving visitors away from Romney Marsh and forcing residents to leave their windows closed.’

We decided to talk to an eminent QC in the environmental world and ask them what if anything can be done by residents.

Smell among others things can be a ‘Statutory Nuisance‘

What is a Statutory Nuisance?

A statutory nuisance is something that, under the Environmental Protection Act 1990 Part III, affects a person’s health or causes disturbance to them in their property (living space). Nuisance can broadly be defined as something that unreasonably affects somebody’s use and enjoyment of their home and property. Noise is the most frequently complained of nuisance issue although there are other things that can be considered as nuisances. These include smoke (e.g. from garden bonfires), dust, smell, and accumulations. The Environmental Protection Act 1990 lists other specific types of nuisance.

In all assessments of nuisance the environmental health officer investigating the case, not the complainant, makes the decision on whether the smell, noise etc is a nuisance. Case law requires the Officer to act as the ‘standard person’ when reaching the decision. Therefore, those who have a different or higher expectation of peace,  may not always get the result they want.

What Can You Do?

The Environmental Protection Act 1990 Part III, S79, S80 and especially s82  enables Private Citizens to take their own private action directly to a Magistrates Court. This is done using exactly the same law used by Environmental Health Officers – the Environmental Protection Act 1990, but uses a different section – Section 82.

Do you need to have a solicitor to take a private action?

No. Taking your own private action is straightforward. The law is written so that members of the public can use the court system to resolve to their problem. It need not be expensive and you do not need a solicitor. You may, however, wish to consult with a solicitor before taking legal action.

How do you begin to take a private nuisance action?

You would be required to show the Court that you have attempted to resolve the problem yourself. To do this you should write to the person concerned and tell them that you believe they are causing a nuisance. You should tell them in the letter that if they do not do something to stop or reduce the nuisance themselves, then you will be considering taking a private action under Section 82 of the Environmental Protection Act 1990. Your letter should state the reason for your complaint – e.g. that nuisance is being caused by excessive smell/dog barking/playing of loud amplified music/smoke from bonfires. You should keep copies of all correspondence sent or received regarding your issue. Example letters are provided at the end of this post as a Microsoft word doc

What evidence do you need?

The letter you send is the first piece of evidence you will need to help persuade the court that you are suffering from a statutory nuisance. Once you have sent the letter you should begin logging when the nuisance happens by writing down the dates and times on a simple diary monitoring form (example provided). You should record on the form how the nuisance affects you and why it is stopping you from enjoying your property – e.g. you cannot sleep because of the noise or you were not able to sit in the garden because of smell from manuring the land.

You may also wish to begin gathering other forms of evidence such as approaching others (e.g. friends or neighbours) who may have witnessed or experienced the problem themselves and would be willing to support you. Be careful, however, if you decide you want to record or video the nuisance. This type of evidence can be very useful but to avoid any action being taken against you, you should ensure you have told the person you are recording that you may be gathering evidence in this way. You can advise them in your initial letter. If you do take photographic or video evidence you should be sure to only take it of the nuisance occurring and nothing else or they may have a case against you for invasion of privacy. Don’t forget – You must keep copies of all correspondence sent or received regarding your issue.

What do you do if the problem continues?

If the person causing the problem chooses to ignore your letter to them and continues with their action then you should write to them again and inform them that you will be applying to the Magistrates Court for proceedings to be taken. You must give them at least 3 days notice of your intention to do this. An example letter is provided with this leaflet. You must keep a copy of this notification for future reference. If the problem continues then you should gather together all your evidence and contact the Justices Clerk at Folkestone Magistrates Court (tel: 01304 218 600). You will be required to visit the Court in person with your evidence. The Court is open weekdays from 9.30am and you should aim to visit around this time. You should go to the Clerk’s Office and explain that you want a Summons served under Section 82 of the Environmental Protection Act 1990. You should be prepared to produce your evidence to show the Magistrates that you have an arguable case. If the Magistrates are satisfied that you have a case that should be answered, you will be given the time and date of the hearing. The Court officers will serve the Summons requiring the defendant to turn up at Court at that time to defend the case. A charge is made by the Court at the commencement of proceedings – you should speak with the Court and ask what these charges are. After the Summons has been issued, you should continue to keep a record of evidence as described above which you can bring to the Court on the date of the hearing.

Taking private action under section 82 of the Environmental Protection Act 1990 can actually cost very little and the only necessary charge is the fee imposed by the Court for the handling of your case. You can represent yourself and in the event that you win your case you may be able to recover any costs you may have incurred during the process. If you do decide to use a solicitor, make sure that you understand the basis on which you are being charged (normally an hourly rate) if you do not qualify for legal aid. You should also bear in mind that you may be liable for your opponent’s costs if your action does not succeed. This may be costly. A point to consider is that if you genuinely believe you are being caused a statutory nuisance then you should be confident in winning the case. If you have any doubts then you should reconsider that what you are experiencing is probably not a nuisance in the legal sense. Home insurance policies can cover private legal action. This may be already written into your policy or it may be possible to add it. You should speak directly with your insurance provider regarding this.

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